author: WASSERSTROM, Judge.

text:
    COLE COUNTY, Missouri and the County Court of Cole County, Missouri, Appellants, v. BOARD OF TRUSTEES OF the JEFFERSON CITY FREE LIBRARY DISTRICT and Roy A. Scheperle Construction Company, Respondents.
    No. KCD 28373.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.

      James F. McHenry, Ronald J. Prenger, Jefferson City, for appellants.
    Thomas D. Graham, T. Christopher Graham, Jefferson City, for respondents.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Plaintiff Cole County filed this condemnation suit to acquire property in Jefferson City, Missouri, owned by defendant Board of Trustees of the Jefferson City Free Library District. As part of its petition, the County sought a temporary restraining order to enjoin the defendant Board and its contractor Roy A. Scheperle Construction Company from proceeding with a proposed demolition of building improvements located on the tract, and a restraining order was issued by the trial court. The defendant Board filed a motion to dismiss on the ground that the County had no right to condemn property already being used for a public purpose. After a bench trial, the trial court sustained the motion and ordered the petition dismissed; however, the restraining order was continued in effect pending appeal. The County pursues this appeal from the order dismissing its petition. We affirm.

The property in question is the site of a library building which had been occupied by the Board and used as a free public library for more than 70 years. In 1966 the Thomas Jefferson Regional Library District was formed, composed of the library districts of Jefferson City and the Counties of Cole, Miller, Maries and Osage. See § 70.210(2). (All statutory references are to RSMo 1969.) In the same year, a consulting firm was hired to make a study to determine future needs for library services in Jefferson City and surrounding areas. The consulting firm recommended a new and larger library building and that it be accompanied with parking facilities.

Pursuant to that recommendation, the Board did construct a new library building just to the south across a narrow street (also sometimes known as Hog Alley) from the old library building. The Board took occupancy of the new building in 1974. The offices of the Regional Library are located in this new Jefferson City library building and all employees in the Jefferson City library are paid from district funds.

Early in 1975, the Board took up the question of what to do with the old building and moved to demolish that building for the purpose of creating a parking lot to serve the new building. To this end, the Board advertised for bids on the demolition of the old building and creation of a parking lot, the bids to be opened February 28, 1975.

At about this time, some public concern began to be voiced in favor of saving the old building. The City Council of Jefferson City held a meeting to which representatives of the Board were invited to explore the subject. At this meeting, the City Council asked the Board to determine the value of the old building by calling for purchase bids on it. In response to that request, the Board did advertise publicly for such bids and set the date for opening of these bids on February 28, 1975, the same date that the construction bids were to be opened.

The County was interested in acquiring additional space for its own purposes and therefore submitted a bid to purchase the old library building, which proved to be the only such bid. On February 28, the construction bids and the sole bid to purchase were opened at the same time. The bid from Scheperle for demolition of the old building and parking lot construction was then accepted. However, before Scheperle could begin its demolition work, the County commenced the present lawsuit and obtained its temporary restraining order.

The Points Relied Upon set forth in the County’s brief consist solely of abstract statements of law, thereby violating Rule 84.04. However,the dispute here is between public bodies, pertains to public property and directly involves the public interest. In addition, the issues as set forth in the arguments of the parties are simple and sharp. Under these special circumstances, the requirements of Rule 84.04 will be suspended in this case.

The County concedes in its brief that “[a]s a general rule, property already devoted to a public use cannot be taken for another public use which will totally destroy or materially impair or interfere with the forever [sic] use, unless the intention of the legislature that it should be so taken has been manifested in express terms or by necessary implication, were [sic] general authority to exercise the power of eminent domain being in such case insufficient.” This concession is of course forced by the square holding to that effect in State ex rel. State Highway Commission v. Hoester, 362 S.W.2d 519, 522 (Mo. banc 1962). See also to the same effect Kansas City v. Ashley, 406 S.W.2d 584 (Mo.1966). The County further concedes that its statutory authority for condemnation, § 49.300, grants a “mere general authority to exercise the power of eminent domain” which Hoester holds insufficient to permit the taking of property already devoted to a public use.

The County contends, however, that this case falls within two exceptions to the foregoing rule. The first exception upon which it relies is that property which was originally acquired for a public use, but which has subsequently been abandoned, may be taken under a general power of eminent domain. The application of this exception requires of course a showing that the Board has abandoned the old library building.

It is well established that in order to show abandonment, an intention to abandon must be proved. Intention is the first and paramount object of inquiry, for there could be no abandonment without the intention to abandon. In re Clark’s Estate, 213 S.W.2d 645, 651 (Mo.App.1948); Northwest Missouri State Fair, Inc. v. Linville, 448 S.W.2d 274, 279 (Mo.App.1969); Wirth v. Heavey, 508 S.W.2d 263, 267 (Mo.App.1974). Such an intention may be inferred only from strong and convincing evidence. Gibson v. Sharp, 277 S.W.2d 672, 679 (Mo.App.1955).

In an effort to comply with this requirement, the County relies upon the Board’s solicitation of public bids for purchase of the property. As stated in the County’s brief: “It is the position of the appellants that the offering of the property for sale by public bid, after the advertisement for demolition bids, indicated a clear abandonment of the public nature of the use of the property.” That argument carries no persuasion. The actual intention of the Board in soliciting these bids for purchase was convincingly explained by Mr. Priddy, the Board’s president, in his testimony that the sole purpose for that solicitation “was to meet the requests of those [the City Council of Jefferson City] who had asked us to determine the value of the property.” Priddy also testified that the Board never at any time took any action to set aside their intention to turn the old area into a parking facility for use in connection with the new library building. In the face of this evidence, the County wholly failed to carry its burden of proving an intention on the part of the Board to abandon the property in question.

For its second claimed exception to the general rule, the County argues that parking is not necessary to the Board’s purposes and cannot be considered as a public library function. This argument also must be rejected.

The functions of the Library Board are set forth in § 182.200. Subsection 4 provides that the Board shall have control of funds for “the construction of any library building, and of the supervision, care and custody of the grounds, rooms or buildings constructed, leased, or set apart for that purpose.” Subsection 5 authorizes the Board to “purchase or lease grounds, purchase, lease, occupy or erect an appropriate building or buildings for the use of the public library and branches thereof * * * .” These provisions do not contain any specific mention of off street parking facilities. Nevertheless, the right to acquire, hold and operate facilities for that purpose must be implied in order to permit an effective performance of the Board’s purposes.

Decisions of the Missouri Supreme Court and the courts of a number of other states support that implication. In State ex rel. Curators of the University of Missouri v. Neill, 397 S.W.2d 666 (Mo. banc 1966) the Missouri Supreme Court, sitting en banc, dealt with the question of whether the University had the power to issue revenue bonds for the money necessary to defray the costs of parking facilities, and thus, whether the Curators had the power to construct parking facilities. Both questions were answered in the affirmative. Noting that it is the clear intent of the constitution and statutes to confer on the Curators the authority to select sites, acquire real estate, and construct improvements thereon in order to carry out the functions of the University, the Court stated at l.c. 670:

“It is too late in the motor age to contend successfully that parking facilities are not a necessary adjunct of the proper use of improved real estate. One does not have to travel far to see their inevitable presence at modern shopping centers, factories, schools, churches, apartments and even private residences. A place to park an automobile is indispensable to its use. The larger businesses and institutions find it necessary to provide parking facilities for the persons with whom they deal since streets are no longer adequate or available for that purpose.”

A New Jersey court came to a similar conclusion with regard to the acquisition of a parking lot in connection with a county courthouse, in County of Essex v. Hindenlang, 35 N.J.Super. 479, 114 A.2d 461, 465 (1955):

“The acquisition' and maintenance of a parking area fon the use of county officers and employees, and for those connected with the courts or who come on county business, is a necessary and reasonable adjunct to the acquisition and maintenance of a courthouse and administration building. True, authority to condemn for such a parking area has not been conferred upon counties in express words, but the power is certainly one that can be implied from the specific grant contained in R.S. 40:32-2 and 3, N.J.S.A. The statutory language is broad enough to comprehend such an implied power. * * * * * *
“The condemnation of lands for a parking area for public buildings is plainly a power that is ‘of necessary or fair implication, or incident to the powers expressly conferred [to purchase, erect or otherwise acquire and maintain public buildings— R.S. 40:32-3, N.J.S.A.] or essential thereto.’ ”

A case dealing with the implication of the power to maintain parking lots, closely analogous to the case at bar, is In re Condemnation by the School District of Pittsburgh, 430 Pa. 566, 244 A.2d 42 (1968), in which the Pennsylvania Supreme Court upheld the right of the Board of Education to condemn property for parking facilities. Citing Missouri ex rel. Curators of the University of Missouri v. Neill, supra, the Pennsylvania Supreme Court stated: “We think that the acquisition of land for off street parking for school district facilities, including an administration building, is for a ‘proper school purpose.’ . . . Since automobiles are a necessary incident to the operation of school district facilities, off street parking is a practical necessity. The streets simply are not adequate and sometimes are not available for parking. Consequently, the acquisition of land for off street parking, which is a practical necessity to the effective and efficient operation of a school system, is certainly a ‘proper school purpose.’ To interpret the statute any more narrowly would be to frustrate its obvious intent to delegate to the Board authority to discharge the legislature’s constitutional obligation to provide for an efficient public school system.” See also City of Spring Valley v. Southwestern Bell Telephone Company, 484 S.W.2d 579, 581 (Tex. 1972), holding that a parking lot is a necessary adjunct to a central office building of a utility company for purpose of zoning exemption, and City of Phoenix v. McCullough, 24 Ariz.App. 109, 536 P.2d 230, 232 (1975) determining that off street parking is necessary to the operation of an airport. The clear trend in the courts is to find that the power to create parking lots is a necessary implication of the power to create public buildings.

A library is a public institution and the library building in question is a regional library facility which serves not only the residents of Jefferson City, but also the residents of Cole, Maries, Miller and Osage Counties. Part of this service is via bookmobiles, but the library itself is open to all residents of the area as well, and serves as the administration unit for the entire regional library. In addition, it includes a special multi-purpose room and many activities and programs are held in the building which attract people from the surrounding area. It seems reasonable to conclude that in the present day when the automobile is the dominant mode of transportation, the power to create and maintain a public library building and grounds includes the power to build and maintain a parking lot.

The County includes in its argument a contention that parking for the new library building should not be considered a necessary public use because of the existence of street parking and other off street parking facilities more or less nearby in the neighborhood. The desirability and necessity of additional parking adjacent to the new library building is a question of fact to be determined by the Board itself in the first instance and should not be disturbed by a court unless the decision was “brought about by fraud or corruption, or is so manifestly wrong and prejudicial to the public as to create a conviction that it was the result of fraud and disregard of public duty.” Everett v. County of Clinton, 282 S.W.2d 30, 37 (Mo.1955). See also County of Essex v. Hindenlang, supra, 114 A.2d 461, l.c. 469. The County has wholly failed to prove any disregard of public duty on the part of the Board within the contemplation of the above rule.

Affirmed with direction to the trial court to dissolve the temporary restraining order.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eugene L. CAUDLE and Hilda E. Caudle, his wife, Plaintiffs-Appellants, v. Nancy KELLEY, Individually, and as Trustee and last surviving officer of Land Market Realtors, Inc., a defunct corporation, Stockton, Missouri, et al., Defendants-Respondents.
    No. 10496.
    Missouri Court of Appeals, Springfield District.
    Dec. 28, 1976.

      Robert Stemmons, Mount Vernon, for plaintiffs-appellants.
    Roy W. Brown, Kansas City, for defendant-respondent Kelley.
    Samuel J. Short, Jr., Fowler & Short, Stockton, for defendants-respondents Car-ender.
   PER CURIAM.

This action arose out of the sale of a parcel of realty in Stockton, in Cedar County. The petition is laid in four counts. Count I alleges that Land Market Realtors, Inc., is a defunct Missouri corporation and that defendant Kelley is the trustee and last surviving officer of the board of directors, and an officer of the defunct corporation residing in Cedar County; that on June 18, 1975, defendant Kelley made and delivered to plaintiffs a check drawn on the defunct corporation in the amount of $28,-402.93; that the check was presented for payment but was dishonored and that plaintiffs thereafter gave notice of dishonor to defendant Kelley and the corporation. Prayer is for judgment against defendant Kelley in the sum of $28,402.93 plus interest. Count II alleges payment of $27,000 to defendant Kelley and conversion of that sum by her; prayer is for judgment against her in the sum of $27,000 plus interest.

Count III alleges that on June 11, 1975, plaintiffs and defendants Carender entered into a contract for the sale of a parcel of land; that by the terms of the contract defendants Carender were obliged to pay $3,000 upon execution of the contract and that that sum was deposited with the defunct corporation; the balance of the purchase price — $27,000—was to be paid to plaintiffs upon execution and delivery of a warranty deed to defendants at the office of the defunct corporation. Plaintiffs allege delivery of a warranty deed and performance of all conditions precedent to payment and failure of defendants Carender to pay any part of the purchase price. Prayer is for judgment against defendants Caren-der in the amount of $30,000. Count IV alleges procurement of the warranty deed by means of fraudulent representation on the part of defendants Carender, specifically that defendants Carender represented they would pay the purchase price without any intention of doing so. Plaintiffs further allege their execution and delivery of the deed, recordation of the deed, inadequacy of their remedy at law and pray cancellation of the deed.

Defendants Carender filed a motion to dismiss all four counts of the petition “for failure of the same to state a cause of action”. Defendant Kelley answered each count of the petition separately; the answer incorporates a motion to dismiss for failure to state a claim upon which relief can be granted, as authorized by Rule 55.-27(a). The record indicates that notice of a hearing on the motion to dismiss was served on the attorneys for both defendants Kelley and Carender, but nothing before us indicates that upon the date set the respective motions were converted to motions for summary judgment pursuant to Rule 55.27(a) or Rule 55.28 by presentation of matters outside pleadings or by reception of evidence. In any event, some time after the date set for hearing on the motion, the trial court entered the following order:

“The Court does hereby sustain Defendant’s, M. T. Carender and Pearl Carender, motion to dismiss Counts III and IV of Plaintiff’s Petition.”

It is elementary law that an appellate court must inquire sua sponte whether a final, appealable judgment has been entered, Pizzo v. Pizzo, 365 Mo. 1224, 1227, 295 S.W.2d 377, 379[1] (banc 1956); Dudeck v. Ellis, 376 S.W.2d 197, 204[1] (Mo.1964), because if no such final judgment has been entered, the appeal is premature and must be dismissed. Dudeck v. Ellis, supra, 376 S.W.2d at 204[3].

The general rule is that to be final and appealable, a judgment must dispose of all parties and all issues in the case and leave nothing for future determination, unless the trial court has ordered a separate trial of any claim or issue or has specifically designated the particular judgment as a final judgment for the purposes of appeal. State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 231[3] (Mo. banc 1969); Dudeck v. Ellis, supra, 376 S.W.2d at 204[3]; Rakestraw v. Norris, 469 S.W.2d 759, 761[2] (Mo.App.1971). The four counts pleaded in plaintiffs’ petition all arise out of the same transaction or occurrence and the trial court’s order granting the motion to dismiss or motion for summary judgment might have been a final judgment if the trial court had so designated it. Spires v. Edgar, 513 S.W.2d 372, 373-377 (Mo. banc 1974). However, the trial court’s jurisdiction has not been extinguished; on the record presented it may correct errors or in its discretion may set aside the orders or judgments it has entered. State ex rel. Schweitzer v. Greene, supra, 438 S.W.2d at 232[5]; Title Ins. Corp. of St. Louis v. United States, 432 S.W.2d 787, 790[3] (Mo.App.1968); and see Woods v. Kansas City Club, 386 S.W.2d 62, 63-64 (Mo. banc 1964). The appeal is therefore premature and must be dismissed.

All concur.

      . References to statutes and rules are to RSMo 1969 and Missouri Rules of Court (7th Ed. 1976), except where otherwise noted.


text:
    Fred Leroy ROBERTSON and Lillian H. Robertson, his wife, Plaintiffs-Appellants, v. Nancy KELLEY, Individually, and as Trustee and last surviving officer of Land Market Realtors, Inc., a defunct corporation, Stockton, Missouri, et al., Defendants-Respondents.
    No. 10497.
    Missouri Court of Appeals, Springfield District.
    Dec. 28, 1976.
    Robert Stemmons, Mount Vernon, for plaintiffs-appellants.
    Roy W. Brown, Kansas City, for defendant-respondent Kelley.
    John M. Belisle, Belisle & Baker, Osceola, for defendants-respondents Broyles.
   PER CURIAM.

This appeal from the Circuit Court of Cedar County involves the sale of a parcel of realty in Cedar County, Missouri. As in Caudle v. Kelley et al, No. 10496, Mo. App., 545 S.W.2d 427, reported concurrently herewith, the plaintiffs’ petition is laid in four counts. The parties (except defendant Kelley) and sums involved are different, but otherwise plaintiffs’ petition is a mere rescript of the petition in No. 10496, and the action taken by the trial court is identical to that taken in No. 10496. For the reasons stated in Caudle v. Kelley et al., supra, the appeal is premature. Repetitive discussion of the controlling principles is unnecessary and the appeal is dismissed. See Rule 84.14, V.A.M.R.

All concur.


text:
    State of Missouri, Plaintiff-Respondent, v. Gerald Eugene SPARLING, Defendant-Appellant.
    No. 10159.
    Missouri Court of Appeals, Springfield District.
    Jan. 11, 1977.
    Motion for Rehearing or Transfer Denied Jan. 17, 1977.
    Application to Transfer Denied Feb. 14, 1977.
    John C. Danforth, Atty. Gen., Christopher R. Brewster, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Loren R. Honecker, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   PER CURIAM.

In a jury-waived trial the Circuit Court of Greene County found defendant Gerald Eugene Sparling guilty of two counts of molesting minor with immoral intent as prohibited by § 563.160, RSMo 1969, and sentenced him to concurrent two-year prison terms.

In this appeal the defendant claims the information was fatally defective because it does not charge a violation of § 563.160 and that the state’s evidence was insufficient to support his convictions.

We have read the transcript in its entirety. We have read and studied the briefs of the parties and the cases cited therein. We are of the opinion that the information substantially follows the statutory language and sufficiently charges the defendant. The convictions and judgment entered thereon are supported by substantial evidence and not against the weight of the evidence. No error of law appears.

An opinion would have no precedential value and the judgment of the trial court is affirmed pursuant to Rule 84.16(b), V.A. M.R.

All concur.


author: SHRIVER, Judge.

text:
    STATE of Tennessee ex rel. DEPARTMENT OF TRANSPORTATION, BUREAU OF HIGHWAYS, Robert F. Smith, Commissioner, Plaintiff-Appellant, v. Joe B. BREVARD et ux., et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    March 26, 1976.
    Certiorari Denied by Supreme Court June 7, 1976.

      R. A. Ashley, Atty. Gen., State of Tennessee, Clark H. Tidwell, Taylor, Schlater, Las-siter & Tidwell [Special Counsel], Nashville, for plaintiff-appellant.
    Robert H. Jennings, Jr., West, Jennings & Allen, Nashville, for defendants-appel-lees.
   OPINION

SHRIVER, Judge.

Condemnation proceedings were filed by the State of Tennessee through the Commissioner of Transportation against the landowner defendants to acquire certain real estate for highway purposes. The landowners did not contest the right to acquire the partial taking of their property but excepted to the amount deposited by the State. When the ease came on to be tried to a jury on the issues of the amount of compensation to be paid the owners for the taking, the jury brought in a verdict and an award of $55,000.00 for the land and improvements taken and incidental damages to the remainder of the property. This verdict was made the judgment of the Court and, after the motion for a new trial was overruled, the State prayed and was granted an appeal to this Court and has assigned errors.

The Facts

The pertinent facts, which are not in dispute, may be summarized as follows:

The State condemned 6,103 square feet of a parcel of land belonging to the defendants, leaving 5,597 square feet remaining. Said land was taken for the purpose of widening Douglas Street from the Madison Square Shopping Center to Old Hickory Boulevard in Nashville, Davidson County, Tennessee. The date of taking was September 24, 1974. The property was improved with a one and one-half story house to which an addition had been built wherein a beauty shop was operated and within the house itself there were two apartments which were rented.

While the neighborhood, including the subject property, was zoned Commercial “B”, the general area consisted of both commercial and residential property which had not been converted to full commercial use.

The testimony as to the value of the land taken and the incidental damages is as follows:

Mr. and Mrs. Brevard, the landowners, testified that the fair market value of the land before taking was $75,000.00 which included the improvements thereon. They attributed $45,000.00 to the building and improvements and $30,000.00 to the land itself. Mr. Brevard expressed the opinion that the land was worth $2.30 per square foot and that the remainder was damaged fifty percent because of the reduction in its size, and his estimate, or opinion, was that the remainder would be worth only $7,000.00 after the taking.

Appraiser Steve Harrison was qualified as an expert witness for the landowner. It was his opinion that the value of the land taken was $36,252.00 and that the improvements taken had a value of $41,747.00, for a total of $78,000.00.

Mr. Harrison used a replacement cost approach, less depreciation, in his evaluation of the improvements. He agreed that the remainder after the taking was damaged fifty percent and, taking into account all of these elements, he summarized by stating that, in his opinion, the landowners were entitled to recover $61,789.00.

The State moved to strike the testimony of Mr. Harrison after he testified as to the way he appraised the subject property and the manner in which he considered comparable sales in the neighborhood. This motion was overruled, the Court stating that it was not timely made.

Appraiser Norman Hall testified as an expert witness for the State. He valued the land taken at $10,070.00 and the value of the improvements taken at $17,400.00, for a total of $27,470.00, plus incidental damages of $2,060.00, for a grand total award to the landowners of $29,530.00.

Appraiser William Mercer testified as an expert witness for the State and he valued the land taken at $9,155.00 and the improvements taken at $23,667.00, and arrived at an amount due the landowners of $32,-824.00, and, in his opinion, the landowners suffered no incidental damages to the remainder.

The Issues

Counsel for appellant, in their statement under Rule 12, state:

“This appeal raises two issues:
(1) Whether or not the Trial Judge erred in charging the jury on the ‘Before and After Rule’ of valuation, and
(2) Whether or not the Trial Judge erred in not striking the expert testimony of a real estate appraiser who repudiated the willing buyer-willing seller test on cross-examination even though he had affirmed the fair market value rule on direct examination.”

Assignments of Error

There are three assignments of error, as follows:

“I. The Trial Court erred in charging the jury that the landowners could be compensated on a before and after value based upon the particular value of the property to the landowner.
II. The Trial Court erred in its charge to the jury that the difference in the value of the whole tract before the taking and the value of the remainder after the taking is the fair measure of compensation due the owner when:
(1) In Tennessee the measure of compensation is the fair cash market value of the property or property rights actually taken, plus incidental damages, if any, to the residue of the tract; and
(2) The amounts awarded for the value of the land taken and for the incidental damages to the remainder should be reported separately by the jury.
III. The Trial Court erred in not striking the testimony of the expert appraisal witness Steve Harrison who admitted on cross-examination that he gave additional value to the subject property because the landowners did not wish to sell it, the State had to have the property and the transaction is not conducted on an arms-length basis, notwithstanding his affirmation to a hypothetical question on direct-examination of the fair market value test.”

In their brief and argument counsel for the State make the following assertion:

“The first two assignments of error deal with the contention of the State that the Trial Judge improperly charged the jury. Both assignments complain of the apparent adoption of the Trial Court of the ‘Before and After Rule’ which is the difference between the fair market value of the whole tract before the taking and the fair market value of what remains after the taking. See 4A NICHOLS on EMINENT DOMAIN § 14.232.

With respect to the first assignment of error, the State respectfully insists that the charge of the Trial Judge permitted the jury to consider the subject property for its special use to the owner, the objectionable part being as follows:

‘While fair cash market value means market value, property in actual use by the owner on the date of taking, may possess a particular value to him, which would be sacrificed if the property were placed on the general market. The law does not require this sacrifice. Just compensation requires that the property be paid for at the place and in the form in which it was taken.’ ”

Counsel for the appellant correctly state that it has long been held in Tennessee that all the capabilities of property and all the available uses to which it may be applied are to be considered, and not merely the condition that it was in at the time and the use to which it was then applied by the landowner. Counsel state: “It is not a question of value of the property to the owner,” which is not completely accurate. It would be correct to say that the question of value of the property to the owner is only one element to be taken into account in determining the fair cash market value. Counsel cite Alloway v. City of Nashville, 88 Tenn. 510,13 S.W. 123 (1890), and Davidson County Board of Education v. First American National Bank, 202 Tenn. 9, 301 S.W.2d 905 (1957).

Alloway v. City of Nashville, supra, is a landmark decision which has been cited and quoted numerous times in more recent decisions of the Courts of this State. The well known rule is laid down in Alloway to the effect that just compensation required by our Constitution and laws for lands taken for public use consists of the fair market value, in cash, of the lands actually taken, at the date of their appropriation, estimated as if the owner were willing to sell and the taker desired to purchase that particular quantity of land at that place and in that form, together with such incidental damages as a result, naturally and proximately, to other lands of the same landowner at the date of the taking.

The Court then states as follows:

“The inquiry as to fair market value, in cash, of the land actually taken must be restricted, both in the evidence and in the Court’s charge to the jury, to the general value of the land, estimated upon consideration in a single view of all its elements of value. . . . Such elements of value must not be priced separately, but the land, with all its qualities and capabilities, must be taken and valued as one whole.” [Emphasis supplied]

In Davidson County Board of Education v. First American Bank, 202 Tenn. 9, 301 S.W.2d 905 (1957), the Court refers to and quotes with approval from Alloway v. City of Nashville, supra, concerning fair market value of property taken, stating that the Trial Judge had correctly instructed the jury to take into consideration the capabilities of the property and its uses and those to which it may be best suited and every other element of value which has been proved by a preponderance of the evidence.

Quoting from a Massachusetts case, the opinion in Davidson County Board of Education v. First American Bank said:

“The sum to be awarded for real estate taken is the fair market value of the property, having reference to all the uses to which it is adapted. Its value for any special purpose is not the test, although it may be considered, with a view of ascertaining what the property is worth in the market for any use for which it would bring the most.” [p. 15, 301 S.W.2d p. 907]

Further, then quoting from Orgel on Valuation, page 146, the Opinion states:

“The courts are unanimous in admitting testimony on the adaptability of property for this use and for that, save for the familiar restrictions against the consideration of highly ‘remote and speculative’ contingencies.”

As bearing directly on the questions raised by the first and second assignments, the Opinion of the Supreme Court of Tennessee in Southern Railway Co. v. City of Memphis, 126 Tenn. 267, 148 S.W. 662 (1912), is of particular interest. This is a condemnation case that has been widely cited and quoted in more recent decisions of our Courts and, as far as our research has indicated, it has not been overruled or departed from in the holdings to which we refer herein. In the course of the Opinion (pps. 296-97, 148 S.W. p. 669), the Court said:

“So the railway company is entitled to be compensated not only for the value of the land taken as land, but, in addition, the value of the land taken in connection with the uses to which the owner is devoting it. If the taking of its switch-yards destroy the function of the railway company in the city of Memphis as a common carrier of freight, it is entitled to be compensated for the full value of the use of its terminals to its entire system of road. If it do not destroy, but merely permanently impair it, it is entitled to fair compensation for the degree of impairment, which its system of road suffers from the taking.”

The part of the Judge’s charge in the case at bar which is complained of in Assignment No. 1 is quoted in the brief and argument of counsel, as follows:

“While fair cash market value means market value, property in actual use by the owner on the date of taking, may possess a particular value to him, which would be sacrificed if the property were placed on the general market. The law does not require this sacrifice. Just compensation requires that the property be paid for at the place and in the form in which it was taken.”

It is interesting to note that in Railroad v. Memphis, supra, the Court, 126 Tenn. at page 297, 148 S.W. at page 669, has this to say:

“ . . . The true rule is the fair cash value of the property taken at the place and in the form at which it is taken, having in view its value for the uses to which it is being devoted by the owner at the time of the taking, together with all other elements of value of which it is capable. A citizen whose property is taken for public use is not required to sacrifice any part of the actual and permanent present value of his property. Just compensation forbids this.
By fair cash value is generally meant the market value; but if the property is in actual use by the owner in such way that it possesses a peculiar value to him which would be sacrificed if placed upon the general market, he is entitled to this value, and just compensation requires that he shall be paid for it.”

Reading the numerous Tennessee decisions involving the question posed by Assignments 1 and 2 herein, it seems to us that the rule as to any special or peculiar value which the property has to its owner requires that such special or peculiar value be taken into consideration by the Court and the jury in arriving at an award to the owner in a condemnation case. While the value to the owner may be enhanced by its special usefulness, benefit or profit to him, this is only one element for consideration. It must be remembered that the peculiar value of the property to the owner as presently used may not continue indefinitely since it may become necessary or desirable to change the use or sell the property, in which event its value for other uses and to other people would become a material factor for consideration.

We think a reasonable and fair interpretation of the charge to the jury is that the Court instructed the jury to determine the value of the property taken, adding the amount of incidental damage done to the residue, if any, after deducting from said incidental damage to the residue the value of all special benefits, if any. It is to be noted that the Trial Judge quoted in his charge the entire statute, being Section 23-1537, T.C.A.

We do not interpret the charge as being an instruction to the jury to use the Before and After Rule. He used the language in the context that the property owner should neither be richer or poorer after the taking of his property.

It is asserted in the brief of defendant and the record shows that counsel for the State did not object to the language used by the Court in the charge at the conclusion of the charge and did not offer any special request to correct same. Under our authorities we might be justified in overruling the assignment on this ground. As was said in Rush v. Lick Creek Watershed Dist. et al. 50 Tenn.App. 28, 359 S.W.2d 582 (1962), if the charge was capable of being misunderstood by the jury, it was counsel’s duty to call it to the attention of the Court. Also see Cohen v. Cook, 224 Tenn. 729, 462 S.W.2d 499 (1969).

It is also argued by counsel for defendant that the motion for a new trial made by the State did not assert as a ground the alleged error in the Judge’s charge. As to this question, we think the motion for a new trial was sufficiently specific to call the Court’s attention to the error complained of in the charge.

Considering the charge as a whole in the case at bar, we are of opinion that the jury was not mislead as to the method of arriving at the fair cash market value of defendant’s property and that there was no reversible error in the charge. Hence, Assignments 1 and 2 are overruled.

Assignment No. 3 charges error in the refusal of the Trial Judge to strike the testimony of expert witness Steve Harrison because of some statements made by him on cross-examination which counsel interprets as saying that he gave additional value to the subject property because the landowners did not wish to sell and that it was not an arms-length transaction.

This witness stated that the comparable sales used by him were arms-length sales with a willing buyer and a willing seller and that they were for the value of the land itself and not the improvements. After he had undertaken to make some explanation about the comparable sales and that he didn’t consider the taking of defendant’s land as an arms-length transaction, he was asked and answered:

“A. I appraised it as of the fair market value as of the date of taking. The value that I put on it, in my opinion, is what a willing buyer would pay for this property, and what I think a willing seller would accept, which would be Mr. and Mrs. Brevard, which was not the case.
Q. But you, as an appraiser, have to make that assumption, don’t you?
A. Yes, sir.
Q. Because that’s how the Judge charges the jury, that they have to find the fair cash market value of this property.
A. That’s right.
Q. And they have to assume a hypothetical willing buyer and a hypothetical willing seller?
A. That’s how I appraised it.”

We are satisfied that the Trial Judge did not abuse his discretion in refusing to strike the testimony of this witness.

As to value, the expert witness may express his opinion and then state the basis on which he arrived at that opinion, but the answers given to the questions on cross-examination may be looked to by the Court and the jury in evaluating the opinion expressed by the witness. As to whether its value is increased or diminished is a matter for the jury to decide and, generally speaking, an expert witness is not disqualified to testify merely because he may have used some criteria in arriving at his opinion which is not altogether the standard among appraisers.

In Jones on Evidence, Section 392, page 493, it is said:

“While it is true that the jury are not bound to accept the opinion of experts and are not concluded by them, yet such opinions are entitled to be considered and to receive such weight as in the view of all circumstances reasonably belongs to them.”

Our cases generally hold that the value of expert testimony is for the jury and that the Trial Judge has a wide discretion in passing upon the admissibility of expert testimony as to value. Insurance Co. v. Smith, 18 Tenn.App. 222, 74 S.W.2d 1078.

Also see State v. Rascoe, 181 Tenn. 43, 176 S.W.2d 392, wherein the opinion in Turnpike Co. v. Creveling, 159 Tenn. 147,17 S.W.2d 22, is quoted as saying:

“An exception to the admission or exclusion of evidence in a land damage case will ordinarily not be sustained, except in the case of manifest error.”
Assignment No. 3 is overruled.

For all of the reasons set forth herein-above, all assignments are overruled and the judgment of the Trial Court is affirmed.

AFFIRMED.

TODD, J., and PURYEAR, Special Judge, concur.


author: DWYER, Judge.

text:
    Clifford Carl CRAFTON and/or Carl Clifford Crafton, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Sept. 14, 1976.
    Certiorari Denied by Supreme Court Dec. 6, 1976.

      R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Thomas Evans and Lawrence Edward Young, Asst. Dist. Attys. Gen., Chattanooga, for appellee.
    H. Wayne Grant and Howell G. Clements, Chattanooga, for appellant.
   OPINION

DWYER, Judge.

The appellant appeals in the nature of a writ of error two judgments from the Criminal Court of Hamilton County rendered on jury verdicts finding him guilty of committing two armed robberies with punishment on one of confinement for life and punishment for life on the other after being found by the same jury to be an habitual criminal.

There are several assignments of error contending that the verdicts as returned were contrary to the law and evidence and, therefore, the judgments should be set aside.

We will narrate the evidence as reflected by the record that is before us.

On the early afternoon of May 24, 1975, this appellant, armed with a .38 caliber pistol, robbed at gunpoint a customer and the owner of Lee’s Pharmacy located at 2525 South Broad Street in Chattanooga. He took a billfold containing $232.00 from a Mr. Cross, a customer, who unwittingly entered the pharmacy while the holdup was in progress. Also at gunpoint, he took drugs in the amount of $290.00 and $550.00 in cash from the pharmacist and cash register of that store.

A Mrs. Lee, wife of the owner, fled from the store during the holdup and sounded the alarm when the appellant went into the back of the pharmacy to obtain drugs from the safe.

A Mr. Conley, working in a hardware store next door, responding to Mrs. Lee’s cries for help, ran out the back of his store and saw a man fleeing in an automobile. He wrote down the license number of this car, which assisted in the arrest of appellant a few days later in Franklin, Tennessee. The appellant, while being transferred from Franklin to Chattanooga by officers of that city, made an oral admission of committing this robbery to them.

The appellant gave a written statement acknowledging his guilt of the robbery at the police station in Chattanooga. A paper bag dropped by the armed robber in the pharmacy had the appellant’s right thumb print thereon. An employee, Mrs. Ivalene Cole, Mrs. Lee, Mrs. Laura Cole, an employee, Mr. Plemons, the pharmacist, and Mr. Cross all identified the appellant as the holdup man.

With the aforerelated identifications plus the thumb print, the license number on the car that led to his arrest in Franklin, coupled with his oral and written admissions and no proof offered by the appellant, the evidence is overwhelming as to his guilt of these convictions. The assignments as to the sufficiency of the evidence are overruled.

He urges that the trial court erred in denying his motion for a preliminary hearing. While we question the validity of his waiver of a preliminary hearing on the drugstore robbery, i. e., the magistrate testifying that the appellant appeared to be in pain, at the second preliminary hearing on the holdup of the customer, he waived the hearing through counsel. With no prejudice being shown and the proof of guilt overwhelming, if the questionable first waiver was error, it was harmless. This assignment is therefore overruled.

The assignments contending that the oral admissions and written statements were incompetent because he was a drug addict and confessed in order to get treatment and that the Miranda warnings given were inadequate because he was not advised that he could discontinue the questioning by the officers are meritless. The trial court held a full hearing out of the presence of the jury on these matters and found that the confessions were voluntary and that the appellant was properly advised of his rights. The evidence in the record supports the finding of the trial court. Lloyd v. State, 223 Tenn. 1, 8, 9, 440 S.W.2d 797 (1969). The failure to advise that he could discontinue the questioning does not make the warnings inadequate. Mock v. Rose, 472 F.2d 619, 621, 622 (6th Cir., 1972). These assignments are overruled.

The consolidation of the cases for trial under the facts and circumstances detailed in our narration of the evidence was proper. Hayes v. State, 4 Tenn.Cr.App. 360, 371, 372, 470 S.W.2d 950 (1971). This assignment is overruled.

There are multiple assignments concerning the habitual count in the armed robbery indictment in which the customer, Mr. Cross, was the victim. There were five prior convictions alleged in the second count of that indictment. The appellant asserts that, being under the age of twenty-one at the time of his convictions in Oklahoma, he was a juvenile and therefore these convictions are not valid for habitual purposes. While we are not impressed with appellant’s argument, assuming arguendo it is valid, with two other out of the state convictions alleged in the indictment and one within the state there is ample proof to sustain the habitual count. Accordingly, we reject his reasoning that the convictions must either be for three out of the state or three within and cannot be a combination of the two types. The intent of the statute is to enhance the punishment of repeated offenders. We think the requisite criterion to achieve that purpose is three prior convictions of the designated crimes whether within the confines of the state or without. This assignment is overruled.

The trial court allowing a witness to express what he thought during the holdup had no effect on the results under the evidence as narrated. This assignment is overruled.

The inadvertence of the officer testifying that appellant’s education consisted of two or three years of college while in jail was cured by prompt instructions of the court. Pryor v. State, 217 Tenn. 695, 706, 400 S.W.2d 700 (1965). This assignment is overruled.

The admission into evidence over objection of the license plate removed from the appellant’s automobile that was impounded after his arrest in Franklin without a search warrant was not error and this assignment is accordingly overruled.

The trial court did not err in denying appellant’s special requests, as to identity, credibility of witnesses, opinions of witnesses (expert testimony), definitions of larceny, the test of insanity; all were either covered by the charge or not required because the issue was not raised by the evidence.

Lastly, we find no error in the court’s refusal to charge at the end of the hearing on the habitual count:

“I charge you that the felony charge and the habitual charge may be conducted in single proceedings but they are essentially independent of each other and the jury may find the defendant guilty on the felony charge and innocent of being a habitual criminal.”

This would perhaps have been a proper request if the proceedings had not been held, as here, in a bifurcated posture. Wright v. State, 217 Tenn. 85, 93, 94, 394 S.W.2d 883 (1965). These assignments are overruled.

The judgments of the trial court are affirmed.

DUNCAN, J., and ERNEST PELLEG-RIN, Special Judge, concur.


text:
    Mason R. DIXON et ux., Petitioners, v. Donna SHIRLEY, Individually and d/b/a Donna Shirley Realty Co., Inc., et al., Respondents.
    No. B-5802.
    Supreme Court of Texas.
    April 14, 1976.
    Mahoney, Shaffer, Hatch & Layton, Richard J. Hatch, Corpus Christi, for petitioners.
    Kleberg, Mobley, Lockett & Weil, Ernest F. Bogart, Jr., John A. Waller, Stonewall Van Wie, III, Lev Hunt, Corpus Christi, for respondents.
   PER CURIAM.

In this proceeding the Court of Civil Appeals has held that the judgment of the trial court was interlocutory and not ap-pealable, and has dismissed the appeal. 531 S.W.2d 386.

Mason R. Dixon and wife sued Donna Shirley, Glenn L. Morgan, Willard A. Cobb and wife, and U. S. Life Title Company. A Motion for Summary Judgment was filed by all the Defendants, except Morgan. However, the judgment of the trial court granting these motions recited that Motions for Summary Judgment were filed “by each and all Defendants and that all such Motions should be granted,” and it was “accordingly ordered, adjudged and decreed by the Court that the Motions for Summary Judgment filed by Defendants, Donna Shirley, individually, and d/b/a Donna Shirley Realty Company, Glenn Morgan, USLife Title Company and Willard A. Cobb and Hu-rene Cobb, are granted and Judgment is hereby entered that Plaintiffs take nothing of Defendants.” So the judgment on its face disposed of all parties.

Dixon and wife appealed and asserted points of error to the effect that the trial court erred in granting the summary judgment in favor of all of the Defendants because each Defendant failed to prove there was no genuine issue as to material facts; also, that the trial court erred in granting summary judgment in favor of Morgan for the reason that Morgan did not file a Motion for Summary Judgment.

In response to the decision and judgment of the Court of Civil Appeals, Dixon and wife, Appellants there and Petitioners here, filed their Motion for Rehearing reciting among other things, that “Appellants have taken a non-suit as to Glenn L. Morgan and no longer intend to pursue any such action that they may have had against party.” It was then asserted that this rendered the judgment of the trial court “no longer . interlocutory.” At the same time, the Appellants filed a motion in the Court of Civil Appeals asserting that they “hereby take a non-suit as to Glenn L. Morgan and request that the Court enter its order of dismissal as to Appellee, Glenn L. Morgan.” Both motions were overruled by the Court of Civil Appeals.

In this posture, there is no attack upon the holding of the Court of Civil Appeals that the judgment of the trial court was interlocutory and not appealable and this question is not before us. The application for writ of error is refused, no reversible error.


author: DENTON, Justice.

text:
    Roy Q. MINTON et al., Petitioners, v. Raymond FRANK, Respondent.
    No. B-5816.
    Supreme Court of Texas.
    Oct. 13, 1976.

      Clark, Thomas, Winters & Shapiro, John Coates and Barry Bishop, Austin, for petitioners.
    Waggoner Carr and Robert L. Crider, Austin, for respondent.
   DENTON, Justice.

This suit involves the construction of Article 2372p-3 Vernon’s Texas Civil Statutes Annotated which provides for the licensing and regulation of bail bondsmen. The suit was brought by Roy Q. Minton and Bob Kuhn, as licensed attorneys who represent clients in criminal cases, to obtain an injunction against Travis County Sheriff Raymond Prank from enforcing certain provisions of the Act. The trial court granted petitioners’ motion for summary judgment, and the court of civil appeals reversed. 531 S.W.2d 413. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

The trial court granted petitioners’ motion for summary judgment and permanently enjoined respondent from imposing certain provisions of Article 2372p-3 against the petitioners. The judgment further provided:

That as to plaintiffs Roy Q. Minton and Bob Kuhn, defendant Raymond Frank is enjoined from requiring security, including deposit of money, certificates of stock, certificates of deposit, deeds or deeds of trust for purposes of obtaining bail for their clients whom they actually represent, but this Order specifically requires compliance by the plaintiffs with the evidence of sufficiency of security provisions of Article 17.11, V.A.C.C.P.

The court of civil appeals reversed and remanded, holding that Article 2372p-3 contained both licensing and regulating provisions, and that while attorneys were exempt from the licensing provision, all bondsmen, licensed or otherwise, were subject to the regulatory provisions of the Act.

Material provisions of Article 2372p-3 read as follows:

Requirements of license
Sec. 3 (a) No person may act as a bondsman without the license required under the provisions of this Act, except as provided in Subsections (b), (c), and (d) of this section.
(b) Persons who are actually engaged in the practice of law and who are members of the State Bar of Texas who personally execute bail bonds or act as sureties for persons they actually represent in criminal cases may execute bail bonds or sureties without being licensed under this Act, but they are prohibited from engaging in the practices made the basis for revocation of license under this Act, and, if found guilty of violating the terms of this Act, may not qualify thereafter under the exception provided in this subsection.
(c) The provisions of this Act do not apply to the execution of bail bonds in counties having a population of less than 124,000 according to the last preceding federal census.
(d) Persons who execute bonds as co-sureties with a licensed bondsman.
Examination of bondsman by any sheriff
Sec. 4. A sheriff may examine under oath any proposed bondsman, or an officer or attorney of any company proposing to execute a bond, as to the indemnity, if any, deposited or otherwise provided directly or indirectly against loss by reason of the bond, and may refuse to accept the bond if, in the exercise of his discretion, he is satisfied that the security is insufficient, any portion of the security has been feloniously obtained, or the provisions of this Act have been violated.
County bail bond board
Sec. 5. (a) There is hereby created in all counties having a population of 124,-000 or more, according to the last preceding federal census a County Bail Bond Board.
(b)It shall be the duty of the County Bail Bond Board to set rules and regulations relative to the making of bail bonds by bondsmen within the county. No person may act as a bondsman unless he first obtains a license from the board unless exempted under the provisions of Section 3 of this Act.
Application and issuance of license
Sec. 6. (a) Any person desiring to act as a bondsman in any court of the county shall file with the County Bail Bond Board a sworn application for a license. The application shall be in such form as the board may prescribe, and shall set forth:
(1) The name and address of the applicant, and if the applicant shall be a firm or corporation, the name of each officer and director thereof and all of its employees actively engaged in' processing the giving or making of bail bonds within the county;
(2) The name under which the business shall be conducted;
(3) The name of the place or places wherein the business is to be conducted;
(4) The list of nonexempt properties owned by the applicant and rendered on the tax rolls of the county, the same to be certified by the county tax assessor and collector of the county involved, along with a personal financial statement of the applicant;
(6) A statement that such applicant has not been denied or refused a license in the county during the past 12 months.
(b) The application shall be accompanied by letters of recommendation from three reputable persons who have known the applicant for a period of at least three years. Each letter shall recommend applicant as having a reputation of honesty, truthfulness, fair dealing, and competency and shall recommend that the permit be granted to the applicant.
(c) The application shall be accompanied by a fee of $500 for the filing of any original application.
(d) Upon notice from the board that the application has been tentatively approved, the applicant shall then:
(1) deposit with the county treasurer of the county in which his principal office is located a cashier’s check, certificate of deposit, or cash in the amount of $5,000, to be held in a special fund to be called the bail security fund; or
(2) execute in trust to the sheriff of the county in which his principal office is located a deed to nonexempt real property of the value, as determined by the sheriff, of not less than $10,000, the condition of the trust being that the property may be sold to satisfy any forfeitures that may be made in bonds executed by him after such notice and upon such conditions as are hereinafter provided.
Refusal and revocation of licenses
Sec. 9. (a) No license may be issued to any person who:
(1) is bankrupt or insolvent; or
(2) has had his license revoked for default upon a bond and has not satisfied the obligation of the bond.
(b) Any license may be suspended or revoked by the board for:
(1) violation of the provisions of this Act;
(2) fraudulently obtaining a license under the provisions of this Act;
(3) conviction under the laws of this or any other state or of the federal government of a misdemeanor involving moral turpitude or of a felony;
(4) being adjudged bankrupt or becoming insolvent;
(5) failing to pay within 30 days any final judgment rendered on any forfeited bond in any court of competent jurisdiction within this state;
(6) failure to pay, in addition to the principal amount of a forfeited bond, all necessary and reasonable expenses incurred by all peace officers in arresting the principal on any bail bond executed by him, in the event the principal fails to appear as required by law;
(7) a licensee’s paying commission or dividing commissions or fees with any person, company, firm, or corporation not permitted hereunder to execute bonds or in any manner passing anything of value to any person for referrals of bond business; or
(8) soliciting bail bond business in any building where prisoners are processed or confined.
Approval of bond
Sec. 14. The sheriff of any county has the sole responsibility of receiving and approving bail bonds for the purpose of gaining the release of a named principal held in custody by any authority in his county upon accusation of an offense of which the county or district court has jurisdiction.

The cardinal rule of statutory interpretation is to ascertain legislative intent. State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.1964). Where the intent is apparent from the words of the statute, it is not necessary for this Court to make any analysis of the extrinsic evidence of legislative intent. Calvert v. British-American Oil Producing Co., 397 S.W.2d 839 (Tex.1965).

The respondent posted requirements regarding the execution of bail bonds to be enforced by his office upon all bondsmen, including attorneys who represent clients. The requirements included a deposit of $1000 cash or a certificate of deposit, or execution of a deed of trust on unencumbered non-homestead property in the amount of at least $10,000. These requirements are the same requirements imposed upon licensees in section 6 of the Act except for the difference in the amount of the cash deposit.

The question is not whether attorneys are exempt from the Act’s “licensing” provision or the so-called “regulating” provisions of the Act as the court of civil appeals has viewed it, but whether attorneys who actually represent clients in criminal cases must comply with the requirements imposed under section 6 of the Act.

We think the clear intent of the Act, taken in its entirety, is to exempt qualified attorneys from the provisions of section 6. It necessarily follows that otherwise qualified attorneys are exempt from respondent’s bonding requirements set out in his “Surety Bond Procedures.” Section 6 provides detailed licensing procedures under the Act, and sets out the requirements imposed upon an applicant prior to the issuance of the license. Qualified attorneys, being clearly exempt from the requirement of obtaining a license, are not required to comply with the requirements imposed upon an “applicant” for a license under section 6(d) of the Act. We construe the judgment of the trial court to so hold.

Attorneys are subject to article 2372p-3, to the extent that section 3(b) prohibits them from engaging in the practices made the basis for revocation of a license under the Act, and provides that if they are found guilty of such practices they may not thereafter claim the exemption for attorneys. Attorneys are also subject to section 4 of the Act which gives the sheriff the authority to examine under oath any bondsman, and to disapprove a bond if, within his discretion the security is not sufficient. Article 17.11 of the Code of Criminal Procedure directs the officer taking a bail bond to require evidence of the sufficiency of the security offered. Section 14 of the Act gives the sheriff the sole responsibility of receiving and approving bail bonds. The trial court correctly held petitioners are subject to the provisions of chapter 17 of the Code of Criminal Procedure which deals with the making and sufficiency of bail bonds.

The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

      . Statutory references are to Vernon’s Texas Civil Statutes Annotated.


text:
    Wilmer G. GLEGHORN, Petitioner, v. CITY OF WICHITA FALLS, et al., Respondents.
    No. B-5844.
    Supreme Court of Texas.
    Nov. 3, 1976.

      Locke, Purnell, Boren, Laney & Neely, Joseph H. Staley, Jr. and Orrin L. Harrison, Dallas, D. J. Brookreson, II, Seymour, for petitioner.
    H. P. Hodge, Jr., City Atty., Fillmore, Parish, Martin, Kramer & Fillmore, Elmer H. Parish, Wichita Falls, for respondents.
   PER CURIAM ON MOTION FOR REHEARING OF APPLICATION FOR WRIT OF ERROR

Our Per Curiam opinion of July 7,1976, is withdrawn and the following is substituted therefor.

This is a condemnation suit. The City of Wichita Falls and the Wichita County Water Improvement District No. 2, Con-demnors, sought to enlarge an existing flowage easement over a portion of Wilmer Gleghorn’s land above the Lake Kemp reservoir and dam. In the trial court, Gleg-horn recovered a judgment for $200,000, and the Condemnors appealed.

The Court of Civil Appeals reversed and remanded on two grounds. 531 S.W.2d 879. We agree with the result but disagree with the reason given for the holding that the trial court made an impermissible comment on the weight of the evidence when it submitted the following instructions to the jury:

“You are instructed that the easement being taken by the City of Wichita Falls and the Wichita County Water Improvement District No. 2 from the Defendant between contours 1153.5 ft. m.s.l. up to and including contour lines 1163 ft. m.s.l. totals 469.16 acres and is to be used for the purpose of being submerged by water collected and impounded by the Lake Kemp storage dam which is presently being raised and it is also to serve or partially serve as a precautionary measure against wave action, surge, and backwater.
“You are further instructed that the presumption is that the Wichita County Water Improvement District No. 2 and the City of Wichita Falls can exercise their rights and use of the 469.16 acres being taken from Defendant to the fullest extent of the rights acquired which are described in this charge, which rights include the right of being submerged by water.” [Emphasis added.]

The use of the word “can” in the second paragraph of the above instructions was the sole reason given by the Court of Civil Appeals for holding that the instruction constituted a comment on the weight of the evidence. It cited as controlling authority our decision in City of Pearland v. Alexander, 483 S.W.2d 244 (Tex.1972), in which we condemned the use of the word “will” in an instruction that the jury was to presume that “the City of Pearland will exercise its rights and use and enjoy this property to the full extent for such a sewerage disposal plant.” [Emphasis added.] There is a distinction in the use of the word “will” in the City of Pearland instruction and the use of the word “can” in the above instruction. “Will” denotes certainty while “can” denotes permissiveness or “the right to.” We recognize the distinction in our quotation from Nichols in City of Pearland as follows:

“The use to which the condemnor proposes to devote the property taken must be considered in ascertaining the damage to the remainder area . . . . The condemnee is entitled to consideration of the damage which the condemnor has a right to inflict although it cannot be assumed that the property will be put to its most damaging use.” [Emphasis added.] 4-A Nichols on Eminent Domain sec. 14.-24 (1971).

In applying the willing-seller willing-buyer test of market value, those factors which would reasonably be given weight in negotiations between a seller and a buyer are to be considered. City of Pear-land v. Alexander, supra. City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954). State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936). The rights which the Condemnors “can” exercise as a result of the taking would be such a factor. The use of the word “can” in the instruction did not constitute a comment on the weight of the evidence. However, the first paragraph of the above instruction was objectionable as a direct comment on the weight of the evidence rather than a proper explanatory instruction under Rule 277, because it advises the jury that “the easement being taken . is to be used for the purpose of being submerged by water collected and impounded by the Lake Kemp storage dam which is presently being raised . . . ” rather than advising that the easement can be used for such purposes whenever and to the extent that the elevation of the water in the Lake Kemp reservoir exceeds 1153.5 ft. m.s.l. at the Lake Kemp dam, and whenever necessary to serve or partially serve as a precautionary measure against wave action, surge, and backwater.

The second paragraph is likewise objectionable because of the phrase “which rights include the right of being submerged by water.” According to the Statement of Taking, plaintiffs sought only an additional flowage easement within contour lines 1153.5 ft. and 1163 ft. m.s.l. rather than a right to permanently submerge such area. There was no evidence of a reasonable probability that the area would be permanently flooded or submerged by water. There was evidence that the possibility of occasional flooding would be infrequent in the future. If the rights taken and the proof remain substantially the same upon a retrial, the instructions should be corrected in accordance with this opinion.

The Application for Writ of Error is refused, no reversible error, and the motion for rehearing is overruled.


author: DALLY, Commissioner.

text:
    David BINYON, Appellant, v. The STATE of Texas, Appellee.
    No. 51066.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.

      Greg Gossett, San Angelo, for appellant.
    Royal Hart, Dist. Atty., and Gerald A. Fohn, Asst. Dist. Atty., San Angelo, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of murder; the punishment assessed by the jury is imprisonment for 35 years.

The appellant asserts that the evidence is insufficient to support the conviction; he also contends that the trial court erroneously refused to admit in evidence a written statement made by a co-indictee and that the trial court erroneously admitted in evidence a metal bar stool.

We will first consider whether the evidence is sufficient to support the conviction. The appellant and three others were indicted for the instant offense; there was a severance and the appellant was alone on trial. The count of the indictment that was submitted to the jury in pertinent part alleged:

“Doyle Sims, David Binyon, Johnny Henry, and Travis Scoggins on or about the 26th day of January A.D. 1975, . did then and there, intending to cause serious bodily injury to an individual, Norman Curnutt, commit an act clearly dangerous to human life, to-wit: did then and there cut and stab the said Norman Curnutt with a knife thereby causing the death of the said individual, . . . ”

The indictment was drawn under V.T. C.A. Penal Code, Sec. 19.02(a)(2), which provides:

“(a) A person commits an offense if he:
“(1) . . .
“(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual;”

There is little or no evidence to show that the appellant stabbed Norman Curnutt with a knife. Although not entirely clear, it appears that Doyle Sims stabbed Norman Curnutt in a barroom brawl. Curnutt died as a result of a single knife wound. Therefore, the appellant’s guilt depends upon his criminal responsibility for the conduct of Doyle Sims or one of the other co-indictees.

V.T.C.A. Penal Code, Sec. 7.01 provides:

“(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
“(b) Each party to an offense may be charged with commission of the offense.
“(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.”

V.T.C.A. Penal Code, Sec. 7.02(a)(2) provides:

“(a) A person is criminally responsible for an offense committed by the conduct of another if:
“(1) . . .
“(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; ...”

We now state the law as it is applicable to the facts of this case. The jury was authorized to find the appellant guilty of murder if, from the evidence, it could find, beyond a reasonable doubt, that the appellant acted with the intent to promote or assist, by encouraging, directing, aiding or attempting to aid Doyle Sims, or one of the other defendants, in causing serious bodily injury to Norman Curnutt, and that Doyle Sims, or one of the other co-indictees, did, in pursuance of the common intent, cut and stab Norman Curnutt, Jr. with a knife, and that that act was clearly dangerous to human life and caused the death of Norman Curnutt, Jr. Cf. Everett v. State, 153 Tex. Cr.R. 79, 216 S.W.2d 281 (1949); Thompson v. State, 514 S.W.2d 275 (Tex.Cr.App.1974).

The evidence shows that between 5:00 and 5:30 p. m. on Sunday, January 26, 1975, a group composed of the appellant, Doyle Sims (co-indictee), Travis Scoggins (co-indictee), Johnny Henry (co-indictee), Vicky Bird, Sondra Richards, Ruth Ann Janea, Sheryl Blackwell and seven others arrived at the Foxy Lady Lounge; at approximately 8:00 p. m. Norman Curnutt, Jr. (the deceased) and a friend, Hollis Haddock, arrived at the Foxy Lady Lounge; Norman Curnutt, Sr., the father of the deceased, was already at the Foxy Lady when his son arrived.

While Curnutt, Jr. and Sr., sat at the bar, Haddock played pool with Johnny Henry and others in appellant’s party; when a dispute arose between Haddock and Henry the appellant intervened, striking Haddock a single blow. No other blows were struck in this initial confrontation and Haddock returned to the bar to sit with the Curnutts.

Approximately one-half hour later appellant and his party decided to go dancing at a club known as the “I’magine.” As the group was leaving, Johnny Henry approached Curnutt, Jr., and asked him if he was going to hit him (Henry) with the pool cue he was holding; Curnutt, Jr., said “no.” The appellant stepped in between the two, pulled Henry away and said, “Come on; let’s go”; then the appellant suddenly turned around and hit Curnutt, Jr. in the mouth with his fist, knocking him off his bar stool and starting a “barroom brawl.” Appellant kicked Curnutt, Jr., then turned to face Curnutt, Sr., who had stood up and moved toward appellant. Appellant then hit Curnutt, Sr., over the head with a bar stool, knocking him toward the door of the tavern, away from the spot his son had fallen. The appellant continued to fight with Curnutt, Sr., until the brawl ended. During the fracas Curnutt, Jr., sustained a single knife wound in the left side of his chest which resulted in his death. No witness testified as to seeing the stabbing; the appellant was not seen near Curnutt, Jr., after he initially struck him in the face and kicked him.

Appellant’s party departed the Foxy Lady Lounge in several cars. After Travis Scoggins’ pickup truck turned over and the appellant’s car stalled, Scoggins, the appellant, Ruth Ann Janea, Vicky Bird, Doyle Sims, and Sondra Richards all ended up riding to the “I’magine” in the car Sheryl Blackwell was driving. Sims, Janea and Scoggins were in the back seat while Blackwell, Bird, appellant and Richards were in the front seat. When the incident at the Foxy Lady was discussed, Doyle Sims said: “I hurt that one bad” or “I hurt that one”; Travis Scoggins responded, “Well, you did what?” Sims then displayed a bloody Buck knife. After the group arrived at the “Fmagine” Henry told Sims to go wash the blood off his knife and hands; Sims went behind the bar and washed his hands and knife. The record contains sufficient evidence from which the jury could have found that another of the co-indictees, intending to cause serious bodily injury, committed an act clearly dangerous to human life (stabbing the deceased) that caused the death of the deceased. The evidence also shows that the appellant struck and kicked the deceased, and then fought with the father of the deceased while others in his party continued to fight with the deceased. The appellant’s conduct in fighting with the father of the deceased could well have been found by the jury to have the effect of preventing the father from going to the aid of his son, which effect, in turn, could have been found to aid the person who stabbed the deceased.

The remaining question therefore is whether it was the intent of the appellant to have his conduct promote or assist one of the co-indictees in causing serious bodily injury. The intent of an accused is rarely shown by direct and positive evidence; its existence is rather an inference of fact to be ascertained and found by the trier of fact from the circumstances shown by the evidence in the case. The evidence showed the following:

(1) Appellant acted as an aggressor on more than one occasion; first, without provocation, he struck Hollis Haddock during a dispute between Haddock and Johnny Henry; second, after feigning the peacemaker’s role, he struck the deceased, initiating the brawl;

(2) Appellant struck the deceased, knocking him from his bar stool, and then kicked him; it was shown that the deceased sustained, in addition to the fatal knife wound, a concussion and four or five broken ribs;

(3) Appellant hit the father of the deceased over the head with a bar stool; Dr. Grant testified that a raised bar stool, brought down on someone’s head, would be likely to cause serious bodily injury.

From the circumstances shown the jury could have inferred that the appellant intended by his conduct to promote or assist one of the co-indictees in causing serious bodily injury, and that his conduct had the intended effect; the jury could have further found that Doyle Sims or one of the other co-indictees did, in pursuance of the common intent, cut and stab Norman Cur-nutt, Jr., with a knife, and that that act was clearly dangerous to human life and caused the death of Norman Curnutt, Jr. While the question was no doubt a close one, the jury, properly instructed on the law of circumstantial evidence, resolved it against the appellant.

We hold the evidence sufficient to support the jury’s verdict. This ground of error is overruled.

Appellant next asserts that the trial court erred in refusing to admit in evidence a written statement of co-indictee Travis Scoggins. The statement was given by Scoggins to Deputy Sheriff Loil Ballantine three days after the offense was committed; it stated that during the brawl at the Foxy Lady Lounge the appellant was fighting with Norman Curnutt, Sr.; it further stated that on the way to the “I’magine” Doyle Sims said, “I hurt that one bad,” to which Scoggins replied, “You did what?” and that Sims then pulled out a big knife with blood on its long single blade. The State objected to the statement and the trial court sustained the objection and refused to admit the statement in evidence.

First, the State’s objection that the statement was hearsay was well taken. The only exception to the hearsay rule that the appellant suggested the statement was admissible under was as a declaration against interest; the statement was not a declaration against the penal or pecuniary interest of its maker, Travis Scoggins, and therefore did not constitute a declaration against interest. We hold that the statement was properly excluded. We also note, and the appellant so concedes, that the same facts set out in the statement were already in evidence from other witnesses. Further, the appellant introduced a portion of Scog-gins’ testimony from Doyle Sims’ examining trial (relating to the same offense for which appellant was convicted), in which Scoggins testified to the same facts set out in the statement.

Appellant’s reliance upon Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) is misplaced. The appellant’s position would not have been improved even had he been able to conclusively establish that Doyle Sims inflicted the fatal wound; appellant’s conviction rests upon his criminal responsibility for the conduct of another; the statement, if admitted would merely have helped establish whose conduct appellant was criminally responsible for; therefore, even if the statement was admissible, no harm is shown.

This ground of error is overruled.

The appellant next contends the trial court erred in admitting into evidence a metal bar stool marked State’s Exhibit No. 19. He cites no authority, but argues that the stool was inadmissible because there was no testimony connecting it to the appellant.

The father of the deceased testified that he was hit with both a wooden and a metal bar stool; there was testimony that the appellant struck the deceased’s father with more than one stool. Deputy Sheriff Bal-lantine testified that there was only one metal bar stool at the Foxy Lady Lounge, that it had been found after the altercation in the area where the appellant had been seen fighting with the father of the deceased, and that State’s Exhibit No. 19 was the same metal stool he had found at the Foxy Lady Lounge. On the other hand, there was no showing that State’s Exhibit No. 19 was the same bar stool the appellant had used to strike Curnutt, Sr.

As a general rule an object offered in evidence should not be rejected solely because it is not positively identified as the exact object that was connected with the crime. Hicks v. State, 508 S.W.2d 400 (Tex.Cr.App.1974); Pryor v. State, 449 S.W.2d 482 (Tex.Cr.App.1969); Cole v. State, 450 S.W.2d 661 (Tex.Cr.App.1970), and the cases there cited; 23 Tex.Jur.2d Sec. 389, p. 581. The lack of positive identification affects the weight of the object as evidence, rather than its admissibility. Cole v. State, supra. If, however, we assume that the bar stool was not admissible, we would hold that the materiality of the evidence was not such as would constitute reversible error. Johnson v. State, 170 Tex. Cr.R. 349, 341 S.W.2d 170 (1960); Hatfield v. State, 161 Tex.Cr.R. 362, 276 S.W.2d 829 (1955).

This ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . The testimony of Dr. Robert N. Grant showed that Curnutt, Jr., also sustained a concussion and four or five broken ribs.

      . We note there was no request for an instruction and none was given on the theory that a person other than appellant inflicted the fatal wound, not pursuant to the common intent, but rather by virtue of an independent impulse. See Brown v. State, 146 Tex.Cr.R. 602, 177 S.W.2d 64 (1944); Nothaf v. State, 91 Tex.Cr.R. 619, 240 S.W. 936 (1922); Wilson v. State, 70 Tex.Cr.R. 3, 155 S.W. 242 (1913); Mitchell v. State, 36 Tex.Cr.R. 278, 36 S.W. 456 (1896); McDonald v. State, 22 S.W.2d 670 (Tex.Cr.App. 1929); Cline v. State, 77 Tex.Cr.R. 281, 178 S.W. 520 (1915).