text:
    In re Estate of Louis HENSARLING, Deceased.
    No. 1292.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 15, 1979.

      Paul Tatum, Holt, Tatum & McCarver, Nacogdoches, for appellant.
    Billy J. Earley, McWhorter & Earley, Nacogdoches, for appellee.
   McKAY, Justice.

This is a will contest.

Appellant, Raymond D. Hensarling, filed an application to probate the will of his father, Louis Hensarling, such will having been executed on September 3, 1974. Ap-pellee Reba Hensarling, surviving spouse of the testator, filed an opposition to the application to probate, and, at the same time, filed application to probate a prior will of the testator, which had been executed on June 7,1963. Appellee alleged that on September 3, 1974, Louis Hensarling did not have testamentary capacity to make a valid will, and that he was then acting under undue influence of his daughter, Odessa Mechell.

Trial was had before a jury. In response to special issue No. 1 the jury found that Louis Hensarling did not have testamentary capacity when the will of September 3, 1974, was executed. By its answer to issue No. 2 the jury found that when Louis Hen-sarling executed the will dated September 3, 1974, he was acting under the undue influence of Odessa Mechell. Based upon the jury verdict the trial court admitted the first will dated June 7, 1963, to probate.

Appellant’s points of error attack the verdict of the jury on evidentiary grounds — that there was no evidence, insufficient evidence, and that the verdict on both issues was contrary to the greater weight and degree of credible testimony. In considering appellant’s contention that there was no evidence to support the jury’s findings we may consider only the evidence and inferences in support of the jury’s findings, while disregarding all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In examining the factual sufficiency of the evidence to support the jury’s findings we must consider the whole record to determine whether such findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

The witness Betty Simpson testified that she was raised by Louis Hensarling and his wife Reba from the time she was seven years of age; that from 1973 to 1975 she spent every weekend with them as well as when she had days off from work; that she drove Louis to places; and that she had opportunity to observe him. She further testified that in her opinion he did not have sufficient ability to understand the natural objects of his bounty — that he was like a baby, and that he could not understand the nature of his estate or the property that he owned nor what he would have wanted done with it; that he did not have sufficient memory to collect in his mind elements of any business to be transacted and to retain them long enough to perceive their obvious relationship to each other to form reasonable judgment as to that business.

David Tomkins, who worked with Louis Hensarling about twelve years and knew him very well, testified that after Louis had the stroke he visited him in the hospital and then about once per week after he went home; that Louis did not know all his family, and that he would not have known how to handle business transactions.

The witness Howard Holt, a brother-in-law of deceased who lived across the street, testified that he saw and talked to Louis nearly every day after his stroke, and that Louis had difficulty talking and remembering things almost every time he talked with him. He further testified that in his opinion Louis would not know the natural objects of his bounty, nor his family, he could not concentrate on business transactions well enough to know what he was doing, and he would not have known nor understood the nature of his estate'.

Iva Wallace, who was a friend and neighbor and had known the deceased for thirteen years, testified that the deceased’s stroke changed his character and mood so much that he was not able to carry on a conversation for an extended period, and at times he did not know her or her husband. She further said that in her opinion he did not know, nor had the capacity to know, his family and those close to him, and in her opinion he would not have known the nature of a business transaction and could not “have carried them forward long enough in his mind to have known that which he was engaged.” She also testified that he did not know the nature and extent of his estate.

A Licensed Vocational Nurse (LVN) employed by a medical doctor, Jewell Gill, testified she knew the deceased many years before he had the stroke, and that after the stroke she visited him to take his blood pressure every few days and stayed 45 minutes to an hour each time. She said the deceased could not carry on a conversation, that he would “go off in a daze,” and he had difficulty in remembering anything. She further testified that in her opinion in September, 1974, he did not have the ability to know and understand the natural objects of his bounty, did not know his family and those close to him, did not have the ability to know his business transactions, would not have been able to have formulated a plan and carried it out, and did not know the nature or extent of his estate.

Lionel Hughes of Longview, a brother-in-law of deceased who was business manager of a Mental Health and Mental Retardation Center at Longview, testified he prepared deceased’s tax returns and visited him once a month. He testified deceased had difficulty carrying on a conversation, was forgetful and could not remember things. He further said in his opinion it would be doubtful whether Louis would have known the natural objects of his bounty and their claims upon him; that he would not have understood the nature of a business transaction in which he was engaged since he could not have concentrated upon or remembered how to proceed to carry out a plan; and that at times he would have understood the nature and extend of his estate and at other times he would not have done so.

Dr. Charles W. Coussons testified the deceased had been his patient since 1970 or 1971, and that he had symptoms of vertigo and dizziness associated with cerebral vascular insufficiency; that the deceased was hospitalized in 1972 with the same complaint plus an ulcer; that he had a stroke on April 25, 1973, which required hospitalization for nine days, and caused speech defects and mental confusion for several days; and that he was hospitalized in May, 1974, with jaundice and nausea. Dr. Cous-sons also testified that in his opinion the deceased would have known his family and his children and what property he owned.

Garth Laten, who knew Louis Hensarling and worked with him for several years, testified he visited with Louis several times after he suffered a stroke, and that Louis had no trouble carrying on a conversation and that in his opinion he knew who his friends, his heirs and his children were, and the nature and extent of his property. He further said in his opinion Louis would be able to carry on a business transaction.

Ralph Jernagen testified he knew Louis Hensarling, sold auto parts to him for several years, and saw him about once a month after his stroke. He testified that he never had trouble carrying on a conversation with Louis, that Louis could carry on business, that he drove his car, and that in his opinion Louis would know who his children and heirs were and the nature and extent of his property.

It is our opinion that there is ample evidence in the record to support the finding of the jury to issue 1 that Louis Hensar-ling did not have testamentary capacity at the time he signed the will of September 3, 1974.

Appellant argues that the testimony of the expert witness should be given more weight and credibility on the issue of mental capacity than that of lay witnesses. It is the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony, Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 563 (1952), and this is generally true of expert witnesses as well as ordinary lay witnesses. 1 Texas Practice, Evidence, McCormick and Ray, Sec. 3, p. 6; Clark v. Memorial Hospital, 551 S.W.2d 469, 472 (Tex.Civ.App.—Tyler 1977, no writ).

Having found that the evidence is sufficient to support the finding on the question of testamentary capacity, the answer to issue 2 becomes immaterial because mental capacity and undue influence are two distinct grounds for avoiding a will, and “Undue influence in its essential elements has no real relation to mental incapacity.” Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, 1036 (1939). Stated another way, mental capacity must be shown to exist before the question of undue influence would arise. Id. Testamentary incapacity implies a lack of intelligent mental power, while undue influence implies the existence of a testamentary capacity subjected to and controlled by a dominant influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963).

Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: RALEIGH BROWN, Justice.

license: Public Domain

text:
    INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. FIRE INSURANCE EXCHANGE, Appellee.
    No. 5362.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 15, 1979.
    Rehearing Denied Dec. 13, 1979.
    Larry L. Gollaher, Thompson, Coe, Cousins & Irons, Dallas, for appellant.
    Ronald W. Johnson, Touchstone, Bemays, Johnston, Beall & Smith, Dallas, for appel-lee.
   RALEIGH BROWN, Justice.

This is a subrogation case. Fire Insurance Exchange sought to recover against Insurance Company of North America an alleged pro rata share of a fire loss. Trial to the court resulted in a judgment awarding Fire Insurance Exchange subrogation in the amount of $30,134.00 plus interest. Insurance Company of North America appeals. We reverse and render.

North America urges that the trial court erred in rendering judgment for Fire Insurance because the suit was barred by the contractual limitations period contained in the insurance policy sued upon. We agree.

Fire Insurance had insured Gene Burks’ restaurant against fire loss. Confusion developed between Burks and Fire Insurance as to whether Fire Insurance’s policy would lapse or be cancelled effective December 17, 1971. Because of the uncertainty, Burks secured a fire policy binder from North America effective December 17,1971, insuring the restaurant building for $50,000.00 and its contents for $10,000.00. The Fire Insurance policy and the North America binder contained pro rata liability clauses.

The restaurant building and its contents were substantially damaged by fire on December 24,1971. Fire Insurance refused to make payment under its policy. Burks sued Fire Insurance after North America entered into a loan receipt agreement with him whereby North America loaned him $60,000.00. Responding to Burks’ suit, Fire Insurance impleaded North America under a third party complaint for indemnity or contribution. The original suit and the third party claim were tried together before a single jury. Even though Fire Insurance failed to submit any issues to the jury which would have established its third party action against North America, Fire Insurance was granted a pro rata recovery against North America. That judgment was reversed and rendered on appeal and is now final. See Insurance Company of North America v. Fire Insurance Exchange, 525 S.W.2d 44 (Tex.Civ.App.—Waco 1975 writ ref’d n.r.e.).

Fire Insurance filed the instant suit against North America on December 19, 1975. This action, although for a pro rata recovery, is alleged to be in subrogation, the subrogator being Gene Burks.

The court in Fishel's Fine Furniture v. Rice Food Market, 474 S.W.2d 539 (Tex.Civ. App.—Houston (14th Dist.) 1971, writ dism’d), discussing subrogation said:

Subrogation “is a doctrine of equity, a substitution of another person in the place of the creditor so that the person in whose favor it is applied succeeds to the rights of the creditor in relation to the debt.” Platte v. Securities Inv. Co., 55 S.W.2d 551 (Tex.Com.App.1932, judgment adopted). One entitled to subrogation must work through the creditor whose rights he claims. Insurance Co. of No. America v. Fredonia State Bank, 469 S.W.2d 248 (Tex.Civ.App.— Tyler 1971, no writ); 83 C.J.S. Subrogation § 14, p. 612 (1953). If the subrogor has no rights, then the subrogee can have none. Platte v. Securities Inv. Co., supra; Pugh v. Clark, 238 S.W.2d 980 (Tex.Civ.App.— Galveston 1951, writ ref’d n.r.e.). “The insurer’s right of subrogation is derived from the rights of the insured, and is limited to those rights, and there can be no subrogation where the insured has no cause of action against the defendant.” International Ins. Co. v. Medical-Professional Bldg., 405 S.W.2d 867, 869 (Tex. Civ.App.—Corpus Christi 1966, writ ref’d n.r.e.).

See Sheppard v. State Farm Mutual Automobile Insurance Co., 496 S.W.2d 216 (Tex. Civ.App.— Houston (14th Dist.) 1973, no writ); May Trucking Co. v. International Harvester Co., 97 Idaho 319, 543 P.2d 1159 (1975).

The binder issued in favor of Burks by North America contained the following provision:

No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within two years and one day next after cause of action accrues.

Fire Insurance has brought the instant cause subrogating or substituting itself for Gene Burks. Burks’ cause of action accrued December 24, 1971, the date of the fire. The instant cause was filed December 19, 1975. Standing in Burks’ position, Fire Insurance is barred by the contractual limitation period provided in the binder.

Our holding on this point of error makes it unnecessary to consider the other points presented by Insurance Company of North America.

The judgment of the trial court is reversed and rendered that Fire Insurance Exchange take nothing.


author: REYNOLDS, Chief Justice.

text:
    Alyne Bingham PRICE, Appellant, v. HORACE MANN LIFE INSURANCE COMPANY, Appellee.
    No. 9068.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 21, 1979.
    Rehearing Denied Dec. 19, 1979.

      Robert E. Barfield, Amarillo, for appellant.
    Jeffrey S. Baird, Gibson, Ochsner & Adkins, Amarillo, for appellee.
   REYNOLDS, Chief Justice.

Alyne Bingham Price brought this action to recover benefits designated in a hospital-surgical and major medical expense policy issued to her by Horace Mann Life Insurance Company. Horace Mann moved for summary judgment on the ground the policy lapsed and was not reinstated before Mrs. Price incurred the medical expenses. Mrs. Price moved for partial summary judgment on the ground that Horace Mann’s acceptance of her late premium reinstated the policy before she incurred the expenses. The trial court overruled Mrs. Price’s motion and granted Horace Mann’s motion, summarily decreeing that Mrs. Price take nothing by her action. Concluding that the question of reinstatement is still an unresolved material fact issue, we reverse and remand.

The summary judgment proof, though consisting mainly of affidavits from interested parties and tainted with conclusory statements, does establish the absence of fact issues respecting these matters: Horace Mann’s policy scheduled a coverage of Mrs. Price’s basic and major medical expenses from and after 1 January 1974. A policy provision grants a grace period of 31 days for the payment of each premium after the first premium. Another policy provision reads, in part:

REINSTATEMENT: If any renewal premium be not paid within the time granted the Insured for payment, a subsequent acceptance of premium by the Company or by any agent duly authorized by the Company to accept such premium, without requiring in connection therewith an application for reinstatement, shall reinstate this policy; provided, however, that if the Company or such agent requires an application for reinstatement and issues a conditional receipt for the premium tendered,, this policy will be reinstated upon approval of such application by the Company or, lacking such approval, upon the 45th day following the date of such conditional receipt unless the Company has previously notified the Insured in writing of its disapproval of such application.

The monthly premium due 1 September 1976 was not timely tendered. A check dated October 8 in the amount of two monthly premiums was thereafter mailed in Amarillo, Texas, and received by Horace Mann in Springfield, Illinois, on October 26. The check was deposited in Horace Mann’s “random suspense” account, an account maintained for the receipt of moneys pending a determination of proper disbursement. The check was charged to Mrs. Price’s bank account on or about November 1. On November 2, Horace Mann’s record section received notice from the cashier of the receipt of the payment. A letter dated November 8 was mailed to Mrs. Price, advising that her plan of health insurance lapsed September 1 because the premium was not paid before the expiration of the 31 day grace period, and that “[y]ou may reapply for this protection by completing the enclosed application.” Horace Mann did not receive a reinstatement application from Mrs. Price. All moneys Horace Mann has received from Mrs. Price since September 1 have been refunded to her, but Mrs. Price has not negotiated or used any check mailed to her as a refund. The medical expenses giving rise to this litigation were incurred by Mrs. Price beginning 29 March 1977.

Summary judgment procedure is designed to eliminate patently unmeritorious claims and untenable defenses where there is no genuine issue of fact; therefore, it is unavailable for the adjudication of the merits of any material issue of fact. In re Price's Estate, 375 S.W.2d 900, 904 (Tex. 1964). So, summary judgment would be appropriate under either party’s motion only if the summary judgment proof before the court conclusively shows that no unresolved material issue of fact precludes a judgment decreeing that the policy either was or was not reinstated.

Horace Mann’s defense of the summary judgment rendered is premised on the established facts that it placed Mrs. Price’s late payment unapplied in its suspense account and required an application for reinstatement which was not submitted. From these facts, Horace Mann concludes that as a matter of law there was no acceptance of the late payment to reinstate the policy. Conversely, Mrs. Price attacks the summary judgment and asserts her right to partial summary judgment on the basis that Horace Mann retained her payment for thirteen days after its receipt and eight days after her check was paid by her bank before requesting an application for reinstatement. She concludes these facts establish as a matter of law Horace Mann’s waiver of a reinstatement application and acceptance of her payment to reinstate her policy.

The force of the summary judgment proof must be measured against the reinstatement provision. By that provision, Horace Mann has the option of reinstating the policy under either one of these two conditions: (1) acceptance of a premium tendered late, thereby waiving an application for reinstatement; or (2) conditionally receipting for the late premium and approving a required application for reinstatement. Although the provision prescribes the time within which Horace Mann must affirmatively disapprove a submitted application for reinstatement, the proviso is silent as to the time within which Horace Mann, after receipt of a late payment, may require an application for reinstatement in lieu of an acceptance of the late payment.

In this connection, it is basic that insurance policies are contracts and, usually, are governed by the rules of interpretation applicable to contracts generally. Equally basic is that if the contract is silent as to the time fixed for performing an act under the contract, the law presumes the parties intended a reasonable time.

“Reasonable time” is a relative term. It never means an indulgence in unnecessary delay; instead, it denotes such promptitude as the circumstances will allow for the action called for by the contract. Ordinarily, what is a “reasonable time” under the circumstances of a particular case is a mixed question of law and fact and should be submitted to the trier of the facts. See American Guardian Insurance Company v. Rutledge, 404 S.W.2d 847, 851 (Tex.Civ.App.—Tyler 1966, no writ) and cases there cited.

The principle becomes operative under the state of this summary judgment record. At the time Mrs. Price’s remittance was received by Horace Mann, her policy had lapsed. Upon receipt of the late payment, Horace Mann had the right to accept it in reinstatement of the policy or to require an application for reinstatement for its approval before the policy was reinstated. Horace Mann alone controlled the course of action and, absent a time fixed in the policy, the law dictates that Horace Mann opt for one course of action or the other within a reasonable time. Thirteen days after Mrs. Price’s payment was received, Horace Mann solicited an application for reinstatement. If this action was taken within a reasonable time, Horace Mann has no liability under the lapsed policy; if otherwise, Horace Mann waived the requirement of a reinstatement application and its waiver constituted an acceptance of the late payment for reinstatement of the policy.

The question, then is: does the summary judgment proof conclusively establish whether Horace Mann opted for the reinstatement application within a reasonable time or after an unreasonable time? The answer is derived from what the record shows Horace Mann did. The record, however, merely establishes that Horace Mann deposited Mrs. Price’s payment in its suspense account and thirteen days later notified her of the lapse and solicited the application for reinstatement. Neither occurrence, singularly or collectively, conclusively establishes the reasonable time issue.

The placement of the payment in the suspense account evidences its non-application but does not determine its acceptance within the meaning of the policy, for all payments received by Horace Mann are deposited in that account pending a determination of proper application. The thirteen day elapse from receipt to notification, without more, is inconclusive. Bearing on both of these circumstances, but unmentioned in the summary judgment record, is the matter of the issuance of a conditional receipt which, by virtue of the reinstatement provision, is indicative of non-acceptance of the premium and an adjunct to requiring an application for reinstatement. Also material, but not mentioned, are the normal and prudent practices in the business which, to some degree, would be further indicative of a standard of reasonable time within which to require an application for reinstatement. These unmentioned matters certainly are proper items of factual information for consideration by the trier of the facts in determining whether Horace Mann acted within a reasonable time to require a reinstatement application.

When the status of the facts adduced is correctly weighed and balanced, it is apparent that a material issue of fact is yet to be resolved. Accordingly, summary judgment is precluded under either motion.

The judgment of the trial court is reversed and the cause is remanded.

      . Unless otherwise noted, all dates recorded are in the calendar year 1976.

      . We do not view any of the authorities cited by the parties for their respective positions as determinative under this record. Suffice it to state that those decisions were reached on facts showing either an unequivocal acceptance of a late payment or a request for a reinstatement application immediately upon receipt of the late payment.


author: CARVER, Justice.

text:
    R. B. DEREBERY, Appellant, v. TWO-WAY WATER SUPPLY CORPORATION, Appellee.
    No. 20121.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 21, 1979.
    Rehearing Denied Dec. 20, 1979.

      Richard S. Stark, Stark, Barnhart & Moore, Gainesville, for appellant.
    Jack G. Kennedy, Kennedy, Minshew, Evans, Campbell & Cain, Sherman, for appel-lee.
    Before GUITTARD, C. J., and CARVER and HUMPHREYS, JJ.
   CARVER, Justice.

Derebery appeals from a denial of a mandatory temporary injunction which he sought in order to compel Two-Way to restore water service to a rural location. We affirm the trial court order because we find no abuse of discretion in this record.

Two-Way is a rural water supply corporation with all the characteristics of a cooperative, including its funding and its by-laws, as provided and directed by a department of the national government. One by-law requires a membership and a ten-dollar fee for each residence receiving service. Dere-bery owned a rural residence, and his mother-in-law occupied a mobile home which was immobilized next door to Derebery’s house. These residences were served with their own wells and water system, but the Two-Way system offered the advantages of a more reliable supply. Derebery joined the Two-Way cooperative and installed connecting lines from Two-Way’s meter to his home. He also installed a connection between his home and his mother-in-law’s mobile home. When this was discovered by Two-Way, it demanded that the mother-in-law also join the cooperative and pay the ten-dollar fee like any other member. When neither Derebery nor his mother-in-law would pay the fee, despite requests and warning that cut-off would occur, Two-Way terminated the service to Derebery’s residence. Derebery filed suit and sought a temporary mandatory injunction requiring Two-Way to restore the service pending trial of the suit. Upon hearing, the trial court denied the injunction and this appeal followed.

We note that the water cut-off occurred in March 1979. This suit was filed April 30, 1979. The temporary injunction hearing was concluded between the 11th and the 16th of May 1979. The order appealed from was entered on June 11, 1979. The trial court record reflects that three witnesses were heard (requiring 170 pages to type the statement of facts), and eighteen exhibits were admitted. From the record there appears there is slight, if any, additional testimony that could be offered on the merit trial. Extensive briefs and arguments have since been presented to this court for review of the trial court’s interlocutory order. Trial on the merits is yet to come nearly ten months after the cause of action arose. There appears little reason for counsel or parties to have ignored the admonitions of the supreme court and this court to avoid this waste of time and effort of all concerned by promptly seeking a trial on the merits so that one record and one appeal, if necessary, will conclude the parties’ dispute. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421-22 (1959); Charter Medical Corp. v. Miller, 554 S.W.2d 220 (Tex.Civ. App.—Dallas 1977, writ ref’d n. r. e.); Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684 (Tex.Civ.App.— Dallas 1976, writ ref'd n. r. e.); Crawford Energy, Inc. v. Texas Industries, Inc., 541 S.W.2d 463 (Tex.Civ.App.—Dallas 1976, no writ).

With respect to the denial of the injunction itself, we find no abuse of discretion on the part of the trial court. The purpose of a mandatory temporary injunction is to preserve the status quo between the parties pending a final resolution of the litigation. The trial judge has broad discretion in determining whether to issue a mandatory injunction, and the court’s decision will be reversed only on a showing of a clear abuse of discretion. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953). A temporary injunction will be properly issued where the applicant can show a probable right and a probable injury, though the applicant is not required to establish that he will prevail in the litigation. Id. at 552; Crawford Energy, Inc. v. Texas Industries, 541 S.W.2d at 466. However, a temporary mandatory injunction changes the status quo and should be granted only in cases of extreme hardship. Haynie v. General Leasing Company, Inc., 538 S.W.2d 244 (Tex.Civ.App.—Dallas 1976, no writ); Arvin Harrell Co. v. Southwestern Bell Telephone Co., 385 S.W.2d 696 (Tex.Civ.App.—Austin 1964, no writ).

We find that inasmuch as the appellant and his mother-in-law have their own water supply to which Two-Way’s reliability was merely added, our issue is not one in which urgent human need or deprivation provides an overriding concern. The trial court’s denial of the temporary injunction sought by Derebery actually serves to preserve the true status quo that existed before this dispute arose, i. e., the status quo that existed before Derebery connected his mother-in-law’s residence to the Two-Way system without her being a fee paying member. Rhodia, Inc. v. Harris County, 470 S.W.2d 415 (Tex.Civ.App.—Houston [1st Dist.] 1971, no writ); Hill v. Brown, 225 S.W. 780 (Tex.Civ.App.— Dallas 1920), rev’d on other grounds, 237 S.W. 252 (Tex.Com. App.1922, judgmt. adopted). We conclude that no abuse of the discretion of the trial court has been shown.

Affirmed.


author: JAMES, Justice.

text:
    Truett H. VESTAL et al., Appellants, v. M. A. JACKSON et ux., Appellees.
    No. 6148.
    Court of Civil Appeals of Texas, Waco.
    Nov. 29, 1979.

      Truett H. Vestal, Cole, Panzica & Vestal, Inc., Houston, for appellants.
    John H. Mallard, Centerville, for appel-lees.
   OPINION

JAMES, Justice.

This case is before this Court on Appel-lees’ Motion to Dismiss for Want of Jurisdiction. The appeal is from judgment of the 87th District Court partitioning the surface estate of property situated in Leon County, Texas. Judgment was entered on August 17, 1979 at which time Appellants gave oral notice of appeal and the trial judge “waived the requirement of a cost bond or cash deposit since there were no damages.” Written notice of appeal, reciting this waiver, was filed on August 24, 1979. Nevertheless, on September 11, 1979, Appellants deposited with the District Clerk of Leon County a sum in cash equivalent to the adjudged costs in the trial court. At some later date the Appellants deposited an additional sum in cash to cover the costs of the transcript and the statement of facts in this case. In late September the trial judge informed the Appellants that he had reconsidered his “waiver” of the Appeal Bond and that a statutory bond should be filed in the case. Appellants thereafter, on October 1, 1979, filed a $500 Cost Bond with the District Clerk.

Appellees have filed a Motion to Dismiss the Appeal in this case claiming that this Court has no jurisdiction because the Appeal Bond filed on October 1, 1979, was not timely filed within 30 days after the rendition of judgment on August 17, 1979. While we agree with Appellees’ contention that the Appeal Bond was not timely filed, we must overrule the Motion to Dismiss for Want of Jurisdiction. Under Rule 354, T.R.C.P., appellate jurisdiction may be invoked by filing an Appeal Bond or by making a cash deposit with the court clerk. The Rule specifically provides that: “[I]n lieu of a bond, appellant may deposit with the clerk cash in an amount determined by the clerk to be sufficient to cover the estimated costs in the trial court and the cost of the statement of facts and transcript, less such sums as have been paid by appellant on the costs, and in that event the clerk shall file among the papers his certificate showing that the deposit has been made and copy same in the transcript and this shall have the force and effect of an appeal bond.” The Supplemental Transcript filed in this case contains a Clerk’s Certificate of Cash Deposit in Lieu of Appeal Bond which states that: “This is to certify that I, the undersigned Clerk of the District Courts of Leon County, Texas, have received and do hereby receipt for a cash deposit in the amount of twenty-two and 72/100 ($22.72) dollars, which is equal to the costs of court taxed against Defendants in the above styled and numbered case which have accrued in the trial court, and the same having been paid on or before September 15, 1979. Further receipt is made for $47.00 as the cost of the statement of facts and transcript. These deposits were made in accordance with Rule 354 of the Texas Rules of Civil Procedure as amended effective January 1, 1976, and were from Truett H. Vestal on behalf of Defendants Joncille Vestal Castle and Truett H. Vestal, appellants.” Although this certificate was not filed until October 22, 1979, appellate jurisdiction was invoked when the cash deposit was made on September 11, 1979. The timely deposit rather than the filing of the certificate is the critical jurisdictional factor under the express provisions of Rule 354. Although the original amount of the deposit might have been insufficient to cover both the costs of court and the costs of the transcript and statement of facts, the record shows that the amount of the deposit was later increased to cover the additional costs. Our Supreme Court has held that under Rule 430, T.R.C.P. any defect of substance or form in an appeal bond or in a cash deposit may be cured by amendment so long as an appellant has timely, albeit imperfectly, sought to invoke appellate jurisdiction. Woods Exploration and Producing Co. Inc. v. Arkla Equipment Co., 528 S.W.2d 568 (Tex.1975). The Court has further stated that this rule should be liberally construed to effectuate its intended purpose.

Thus, under Rules 354 and 430, we hold that Appellants’ cash deposit timely made was sufficient to invoke the jurisdiction of this Court and accordingly overrule Appel-lees’ Motion to Dismiss.

APPELLEES’ MOTION TO DISMISS OVERRULED.


author: GUITTARD, Chief Justice.

text:
    W. Scott CLARK, Relator, v. Royal RUSSELL and Gulf States Energy Corporation, Respondent.
    No. 23457.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 3, 1979.
    W. Scott Clark, Fort Worth, for relator.
    Robert H. Osburn, Dallas, for respondent.
    Before GUITTARD, C. J., and ROBERTSON and STOREY, JJ.
   GUITTARD, Chief Justice.

W. Scott Clark, defendant in the trial court, desires to appeal from an order overruling his plea of privilege. His request to the district clerk to prepare the transcript was denied on the ground that the twenty days prescribed by Rule 385, Tex.R.Civ.P., for perfecting the appeal and filing the record had already expired. He files here a “Motion to Compel Transmission of Transcript,” praying that we order the district clerk to transmit the transcript to our clerk. We treat this motion as a petition for writ of mandamus against the district clerk under article 1823, Tex.Rev.Civ.Stat.Ann. (Vernon 1964). So considered, the motion is overruled because we agree with the clerk that the request for the transcript was late.

Clark advances two excuses for his failure to make an earlier request. First, he argues that after the order overruling the plea of privilege was signed, he filed an “exception” to the order, which the court never ruled on, requesting the judge to amend the order by specifying the ground of the decision. Consequently, he argues, he could not determine when the time began to run. This argument is without merit. In an appeal from an interlocutory order, nothing filed after the order is signed can have the effect of delaying the time for appeal. Rule 385(e) expressly provides that there shall be no motion for new trial and that the trial judge need not file findings of fact or conclusions of law. We know of no authority supporting Clark’s contention that the filing of this “exception” had the effect of extending his time for filing the record.

Clark’s second excuse is that he requested the district clerk to advise him the amount of the cost bond and that the clerk failed to respond. He attached to his motion a letter to the district clerk in which he says, “Please advise the amount of the bond.” We hold that the district clerk had no duty to respond to this letter because he had no authority to fix the amount of the bond. The amount is fixed by Rule 354(a), Tex.R.Civ.P., which requires the appellant to execute a bond in the amount of $500 unless the court fixes a different amount on motion of either party.

Neither can the delay be excused on the theory that the district clerk had a duty to determine the amount of the cash deposit required in lieu of bond. Rule 354(a) further provides that in lieu of a bond the appellant “may deposit with the clerk cash in an amount determined by the clerk to be sufficient to cover the estimated costs in the trial court and the cost of the statement of facts and transcript, less such sums as have been paid by appellant on the costs.” Even if appellant’s letter to the district clerk could be interpreted as a request to determine the amount of the deposit, the clerk’s failure to respond to such request would not extend the time for appeal in the absence of a motion for extension filed within the five-day period allowed by Rule 385(b). Clark could still have filed a $500 bond within the twenty-day period, and if he did not wish to file a bond, he should have made another attempt to determine from the clerk the amount of the deposit required. In any event, Rule 385 does not permit him to wait until after the twenty-day period has expired to perfect his appeal and file his record.

The “Motion to Compel Transmission of Transcript” is overruled.


author: /s/John S. Palmore Chief Justice

text:
    COMMONWEALTH of Kentucky, Movant, v. Dennis R. WHITE, Respondent.
    Supreme Court of Kentucky.
    Oct. 2, 1979.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for mov-ant.
    Nicholas W. Carlin, Louisville, for respondent.
   OPINION AND ORDER

The motion of the Commonwealth of Kentucky for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered November 17, 1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979), and this court’s opinion in Whorton v. Commonwealth, Ky., 585 S.W.2d 388, rendered August 21, 1979.

All concur.

Entered October 2, 1979.

/s/John S. Palmore Chief Justice


text:
    COMMONWEALTH of Kentucky, Movant, v. Terry Lee GILBERT, Respondent.
    Supreme Court of Kentucky.
    Oct. 2, 1979.
    Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Frankfort, for movant.
    Terrence R. Fitzgerald, Chief App. Defender of the Jefferson District Public Defender, Louisville, for respondent.
   OPINION AND ORDER

The motion of the Commonwealth of Kentucky for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals, 581 S.W.2d 368, rendered September 15,1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979), and this court’s opinion in Whorton v. Commonwealth, Ky., 585 S.W.2d 388, 1979.

All concur.

Entered October 2, 1979.

/s/John S. Palmore Chief Justice


author: STERNBERG, Justice. CLAYTON, Justice,

text:
    Clarence RUTLAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 30, 1979.
    Jack E. Farley, Public Advocate, Timothy T. Riddell, Asst. Public Advocate, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STERNBERG, Justice.

On July 8, 1973, Mike Roark was murdered and Knight’s Gulf Service Station, where he was working, located at the intersection of 165 and 31W, south of Franklin, Kentucky, was robbed. On June 25, 1977, the appellant was indicted for murder (KRS 507.020) and first-degree robbery (KRS 515.020), pursuant to the terms and provisions of the Kentucky Penal Code. The Code was adopted and became effective on January 1, 1975, some year and a half subsequent to the commission of the subject offenses. Since the offenses were committed prior to the effective date of the Code, the trial court, on due and timely notice, dismissed the indictments and referred the case to the grand jury for further consideration (KRS 500.040(1)). Thereupon, the grand jury indicted the appellant for the offenses of aiding and abetting in the commission of the offense of voluntary manslaughter and aiding and abetting in the commission of the offense of armed robbery.

Inasmuch as both the killing and the robbery occurred prior to the effective date of the Kentucky Penal Code (January 1,1975), we are limited to the definitions of aiding and abetting in the commission of voluntary manslaughter and aiding and abetting in the commission of armed robbery as defined at the time of the commission of the offenses (July 8, 1973), and they will be so considered in this discourse.

A two-day trial (June 20-21,1978) resulted in the jury finding the appellant guilty of both offenses and fixing his punishment at imprisonment in the state penitentiary for a period of twenty years on each offense. The trial judge ordered the sentences to run consecutively.

On this appeal the appellant charges (1) that the trial court erred in not entering a verdict of acquittal on all charges and (2) that the cumulative effect of errors committed during the appellant’s trial deprived him of a fair trial.

The appellant did not testify nor did he offer any evidence. In other words, the appellant argues that in considering the evidence as a whole it would be clearly unreasonable for a jury to find him guilty and, having found him guilty, acted unreasonably.

In Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977), while considering the sufficiency of the evidence to justify the submission of the innocence or the guilt of the accused to a jury and to uphold a verdict of guilty, we said:

“If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal. * * * ”

Applying this criterion to the subject case, we must analyze the evidence adduced at the trial. First of all, to commit the offense of aiding and abetting in the commission of a crime, the crime itself must be proven and the person charged with doing the aiding and abetting must have participated. It is true, as appellant contends, that the Commonwealth is required to show guilt of a principal in the commission of a homicide before there can be a conviction of another person as an aider and abettor. Bryant v. Commonwealth, Ky., 277 S.W.2d 55 (1955). Aiding and abetting is defined as follows:

“To constitute one an aider and abettor, he must not only be on the ground, and by his presence aid, encourage, or incite the principal to commit the crime, but he must share the criminal intent or the purpose of the principal.” Moore v. Commonwealth, Ky., 282 S.W.2d 613 (1955).

The case of Cavanaugh v. Commonwealth, 172 Ky. 799, 190 S.W. 123 (1916), succinctly defines voluntary manslaughter as a killing done either in a sudden affray or in a sudden heat of passion and upon provocation ordinarily calculated to excite the passion beyond control. We have consistently followed the statement in Cava-naugh.

The offense of armed robbery is explicitly defined by statute as the commission of robbery by the use or display of a pistol, gun or other firearm or deadly weapon. Napier v. Commonwealth, Ky., 356 S.W.2d 755 (1962).

On July 8, 1973, between the hours of 8:30 and 9:00 a. m., Mr. and Mrs. Herschel Franklin drove into the service station and, without getting out of their car, saw Mike Roark covered with blood lying in the bay portion of the service station building. They hurriedly drove away to report their findings to the sheriff. Not being able to locate the sheriff, they reported their find to the city police. Upon returning to the service station, police officers had already gathered. Roark was dead, having been shot with a .12-gauge shotgun. A spent shotgun shell was found nearby. Blood was found in the office and other areas and the telephone receiver was hanging off the hook.

On July 13, 1973, at 8:51 a. m., Jack Gibbs, the manager of a used-car sales lot in Sheffield, Alabama, reported the theft of a 1971 Pontiac Grand Prix, burnt orange in color, with orange top and matching vinyl. It had an Alabama license tag, 41-9702, and vehicle identification number 276571A163435.

On July 28, 1973, the appellant and his brother were arrested in Detroit, Michigan, while in the stolen vehicle. The appellant had been using three alias names, Clark, Claude and Frosty. Upon his arrest he was charged with the offense of felonious assault and was fingerprinted under the alias name of Clark Rutland. These fingerprints were proven to be those of the appellant when compared to the fingerprints made of him on December 7, 1977, when he was arrested for the murder of Mike Roark.

On February 22, 1974, Alvis Ray Hudson' found a metal money box containing a billfold, a Social Security card bearing the name of Mike Roark, several credit cards and a .12-gauge shotgun in a ditch of a gravel road, at a distance of about 800 feet from Kentucky Highway 100. All of these were turned over to the police. The gun was identified as the one used to kill Roark. It was purchased on August 14, 1971, by J. B. Rutland, the appellant’s father, from Sears, Roebuck & Company. The appellant had been visiting with his father in Sheffield, Alabama, from July 3 to July 8,1973, when he left home and was not accounted for until his arrest in Detroit, Michigan, on July 28, 1973. The elder Rutland lived about one and one-half miles from the used car lot.

The amount of money stolen from the service station was estimated to be between $35-$40. Counsel for appellant makes much to do about there being a failure on the part of the Commonwealth to establish that at least $20 in cash or merchandise had been stolen. As we have heretofore pointed out in the definition of armed robbery, there was no value limitation required. Even though the evidence relating to the offense of armed robbery, especially aiding and abetting in the commission of armed robbery as in this case, is scant as to the value, it is much less convincing that the appellant committed armed robbery or aided and abetted in the commission of armed robbery. We are not saying that the appellant did not commit armed robbery; what we are saying is that the evidence is not sufficient to prove him guilty beyond a reasonable doubt.

The appellant, while consistently denying his guilt, did on three separate occasions offer, for a consideration, to make known to the officers the name of the person who committed the murder and robbery. The police made no effort to pursue the appellant’s offer.

Counsel for the Commonwealth makes a gallant effort to show how it was possible for the appellant to drive over a route consistent with the best route from Sheffield, Alabama, to Detroit, Michigan, and dispose of the gun, billfold and other items where they were found. Even so, there is no evidence that in anyway connects the appellant with having driven over this route or having been on the gravel road where the articles were found. The use of this escape route by someone other than the appellant, who may have committed these offenses, is as consistent as if the appellant himself had committed the offenses and used this route to make his getaway. It is pure supposition to think that had the offenses been committed by a person other than appellant that the escape route would not have been the one suggested by the Commonwealth’s Attorney.

As far as this record reveals, no one now stands charged with the murder of Mike Roark or with the robbery of the service station. The appellant had been indicted for those offenses; however, the indictments were dismissed and the grand jury to which the facts were resubmitted indicted him for aiding and abetting, but not for the primary offenses. All we have been presented with are surmises, presumptions and conjectures.

In Moore v. Commonwealth, Ky., 488 S.W.2d 703 (1972), we said:

“We have many times held that a conviction may be had upon circumstantial evidence but require that it do more than just create a suspicion. It should be of such character that reasonable minds would be justified in concluding that the person charged was guilty beyond a reasonable doubt. In most instances the question of the sufficiency of circumstantial evidence is for a jury. However, where evidence fails to incriminate the accused or is wholly insufficient to show guilt, the court should entertain the accused’s motion for a peremptory instruction.”

Counsel for the Commonwealth lays much emphasis on the fact that the murder weapon was the property of the appellant’s father. There is nothing in the record to connect the appellant with the gun, and certainly this court cannot assume that the appellant had possession of or the use of the weapon at any time by reason of his father being the owner of the gun.

Applying the criteria enunciated in Trowel v. Commonwealth, supra, we are of the opinion that the evidence was not sufficient to justify the submission of the question of appellant’s guilt or innocence to the jury, and the trial court should have entered a judgment of acquittal on both charges.

Since this case is being reversed because there is insufficient evidence to justify its submission to the jury, it is unnecessary that we opine whether the court committed trial errors, the cumulative effect of which would require a reversal.

The judgment is reversed and the case is remanded to the Simpson Circuit Court with directions to enter a judgment of acquittal.

All concur, except CLAYTON, J., who dissents and files a dissenting opinion.

CLAYTON, Justice,

dissenting.

The majority of the court has reversed appellant’s conviction for aiding and abetting voluntary manslaughter and aiding and abetting armed robbery on the grounds that there was insufficient evidence to justify submitting the case to the jury. I disagree and respectfully dissent from the opinion and holding of the court.

As has been noted by the court, the standard to be used by the trial judge in assessing the sufficiency of the evidence in order to determine whether the case should be submitted to the jury is that after considering the evidence as a whole “it would not be clearly unreasonable for a jury to find the defendant guilty . . . .” Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). It would appear that there are two distinct aspects of this criterion: first, that the judge consider the evidence as a whole, meaning all the evidence viewed most .favorably to the Commonwealth (Jones v. Commonwealth, Ky., 554 S.W.2d 363, 366 (1977)); and second, after looking at the evidence to decide if it would not be clearly unreasonable for a jury to find the defendant guilty. Taken together, those two elements should make this or any reviewing court extremely hesitant to supplant the decision of the trial court with its own opinion.

It has been established law for some years that a conviction based on circumstantial evidence may be upheld and, as the majority opinion quotes, “In most instances the question of the sufficiency of circumstantial evidence is for a jury.” Moore v. Commonwealth, Ky., 488 S.W.2d 703 (1972). Although “the evidence of guilt was somewhat short of spectacular,” Jones v. Commonwealth, 554 S.W.2d at 365, in this case a reasonable mind could, I think, be justified in concluding that the appellant Rutland was guilty of the aiding and abetting offenses with which he was indicted. The most incriminating piece of evidence was the uncontested testimony by one of the investigating officers that Rutland stated to him that he could solve the case and could tell the officer who committed the murder. This would certainly indicate to a reasonable person a significant degree of complicity to the crimes. Adding to that evidence the facts that the murder weapon belonged to Rutland’s father and that the weapon was found in the vicinity of the manslaughter-robbery, that Rutland had left Alabama shortly before the date of the crimes and had traveled north to Detroit during that time could, taken collectively, make it reasonable for a jury to find Rut-land guilty.

The jury was, and is, totally free to reject whatever theory the prosecution presents should they question its validity or if they have any reasonable doubts as to whether the individual charged is the guilty party.

To say that “it would not be clearly unreasonable for a jury to find a person guilty” is not mere legal rhetoric to be taken lightly or perfunctorily but rather á very serious consideration to be implemented by the courts at both the trial and the appellate levels. Just as the jury is guided by the instructions and the standards of proof presented to it, so should the judiciary be guided by the standards it sets for itself.


author: CLAYTON, Justice.

text:
    KENTUCKY CLUB, INC., Miles A. Hernly, Individually; and Hernly Brothers Co., Movants, v. FIFTH THIRD BANK and Jack Graham, Respondents.
    Supreme Court of Kentucky.
    Nov. 20, 1979.
    John E. Lang, III, Burke, Lange & Moe-bus, Newport, John R. Elfers, Covington, for movants.
    Hal Nance Bogard, Charles R. Keeton, Brown, Todd & Heyburn, Louisville, for amicus curiae, Kentucky Restaurant Association.
    William I. Bubenzer, Covington, for respondents.
   CLAYTON, Justice.

This case concerns the question of whether the provisions of the Uniform Commercial Code relating to bulk transfers (KRS 355.6-101 et seq.) apply to the sale of the assets of a restaurant-bar business.

The movants, Hernly (the sole shareholder of Kentucky Club, Inc.) and Hernly Brothers Co. (the sole secured creditor of Kentucky Club, Inc.), sold the Club to mov-ant Williams. The respondents, who had previously obtained a judgment against the Kentucky Club, Inc. for payment of an unsecured loan, attempted to collect that judgment from the named movants claiming that because the provisions of Article VI of the Uniform Commercial Code relating to bulk transfers had not been complied with, movants were obligated to satisfy the judgment. The Kenton Circuit Court dismissed the action stating that it was barred by the six-month statute of limitations as set out in KRS 355.6-111. The Court of Appeals reversed the lower court’s decision holding, inter alia, that a provision in the purchase agreement between the Hernlys and Williams which provided that “the laws relating to Bulk Sales do not apply to this transaction” was an “active concealment of transfers from creditors” and, as a result, the statute of limitations began to run when the transfer was discovered by the creditor-respondents, making their suit timely.

We do not consider it necessary to delve into the intricacies of determining whether there was an act of concealment by mov-ants, thus tolling the statute of limitations, since we hold that both the Kenton Circuit Court and the Court of Appeals were incorrect in concluding that the sale of this restaurant business was covered by the Uniform Commercial Code bulk transfer provisions. This position is consistent with the intent of the drafters and with established law in other jurisdictions. Since Article VI of the Uniform Commercial Code is intended to protect those creditors who extend credit to individual debtors based on the debtor’s business inventory, it is unnecessary to apply those provisions to the sale of the Kentucky Club, Inc., absent a showing that the package store was the “principal business” of the enterprise.

The decision of the Court of Appeals is reversed, and the judgment of the Kenton Circuit Court is affirmed.

All concur.

      . Comment 2 to Uniform Commercial Code § 6-102 states: “The businesses covered are defined in subsection (3). Notice that they- do not include . . . restaurants, and the like whose principal business is the sale not of merchandise but of services.”

      . See, Silco Automatic Vending Co., Inc. v. Howells, 102 N.J.Super. 243, 245 A.2d 765 (1968); Kane-Miller Corp. v. Tip Tree Corp., 60 Misc.2d 776, 303 N.Y.S.2d 273 (1969); Nichols v. Acers Co., Tex.Ct.App., 415 S.W.2d 683 (1967).

      .KRS 355.6-102(3) (1972) reads, in part: “The enterprises subject to this article are all those whose principal business is the sale of merchandise from stock . . .”


author: BILLINGS, Presiding Judge.

text:
    Jeffrey C. VAUGHAN, Plaintiff-Appellant, v. COUNTY OF MISSISSIPPI, Missouri, Employer and Insurer, Defendant-Respondent.
    No. 11141.
    Missouri Court of Appeals, Southern District, Division Three.
    Nov. 26, 1979.
    Jeffrey C. Vaughan, Joslyn, Joslyn, Vaughan & Pruett, Charleston, for plaintiff-appellant.
    Edward C. Graham, Pros. Atty., Charleston, for defendant-respondent.
   BILLINGS, Presiding Judge.

On August 9, 1978, the Circuit Court of Mississippi County rendered a final judgment on an award by the Division of Workmen’s Compensation, pursuant to § 287.500, and in accordance with the directions of this court in Vaughan v. County of Mississippi, 568 S.W.2d 817 (Mo.App.1978). The court’s judgment “awarded” plaintiff a $2,500 fee for legal services rendered to an employee’s widow in a workmen’s compensation case and held that this fee constituted “. a lien on the compensation payable to said widow and shall be payable to said (plaintiff) out of the first installments payable to said widow until fully paid.” Plaintiff seeks review of the court’s holding that his fee is payable from future installments and is not now due in a lump sum. We affirm.

On October 24,1974, a Mississippi County employee sustained fatal injuries in a com-pensable accident. Plaintiff, a practicing attorney, represented the widow of this employee before the Division of Workmen’s Compensation and was awarded an attorney’s fee in the amount of $2,500. The award provided that “. . . said fee shall constitute a lien on said (widow’s) compensation.” An asterisk was placed beside the awards to the widow and to plaintiff, directing attention to the condition that “Each of said payments to begin March 2,1980.” Plaintiff sought no review of the Division’s award and filed a certified copy of the award with the Circuit Court of Mississippi County on December 10, 1976. A final judgment, pursuant to § 287.500, was entered by the circuit court on August 9, 1978.

Plaintiff’s sole assignment of error is that the trial court erred in its judgment that plaintiff’s fee is payable out of the first payments to the widow and that a “lump-sum” payment of plaintiff’s fee is not now due. Plaintiff now seeks a review of the award by the Division and judgment entered thereon by the circuit court, despite the fact that no review of the award by the Division was sought by plaintiff, pursuant to § 287.490.

Section 287.490 provides, in part, that: “The final award of the commission shall be conclusive and binding unless either party to the dispute shall within thirty days from the date of the final award appeal to the circuit court of the county in which the accident occurred. . ."
Section 287.500 states that:
“Any party in interest may file in the circuit court of the county in which the accident occurred, a certified copy of . . . an award of the division . . . from which an application for review or from which an appeal has not been taken, whereupon said court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though said judgment were a final judgment which had been rendered in a suit duly heard and determined by said court.” (Emphasis added).

In Brashear v. Brand-Dunwoody Milling Co., 21 S.W.2d 191 (Mo.App.1929), this court interpreted § 44 (now § 287.490) and § 45 (now § 287.500) of the then new Missouri Workmen’s Compensation Act.

Of significance, the court stated:

“The circuit court, when acting under section 45, has no discretion in entering its judgment; nothing is properly before the court, except the award itself; the finding of facts is not to be considered, as there is no provision for filing such finding under section 45; the only judgment the circuit court can enter must be in accordance with the decision of the commission. Section 44, as before stated, makes the award binding and conclusive on all parties, unless an appeal be taken within 30 days from the date of the award. If that language were to be given its full effect, failure to so appeal would prevent any other appeal, since the parties failing to appeal are bound by the award. While the judgment allowed by section 45 was intended only as a method of enforcing the award of the commission by permitting an execution to issue on a judgment of the circuit court, it also seems to permit an appeal. This right of appeal, if upheld at all, should not be distorted into providing a further method of complete review of the award of the commission after the time for appeal under section 44 has been permitted to expire. At most such appeal can bring before this court only the record proper, which we conceive to be the award of the commission and the judgment of the circuit court.” 21 S.W.2d at 192. (Emphasis added).

In accordance with Brashear, only the award of the Division and the judgment of the circuit court, the “record proper”, are before this court on appeal. As such, the judgment of the circuit court will be affirmed if the award was within the jurisdiction of the Division and the judgment was entered in accordance with the award and § 287.500.

Section 287.260 provides, in part, that:

. . the division or the commission may allow as lien on the compensation, reasonable attorney’s fees for services in connection with the proceedings for compensation if the services are found to be necessary and may order the amount thereof paid to the attorney in a lump sum or in installments.”

Section 287.260 clearly allows the Division to award reasonable attorney’s fees, payable either in a lump sum or installments. Here, the Division’s award gave plaintiff a lien on the compensation payable to the employee’s widow and stated that “. payments to begin March 2, 1980.” Pursuant to § 287.260, the award of attorney’s fees in installments is within the jurisdiction and power of the Division. The circuit court’s judgment that . . the sum of $2,500 for legal services rendered employee’s widow . . . shall constitute a lien on the compensation payable to said widow and shall be payable to said (plaintiff) out of the first installments payable to said widow until fully paid” was entered in accordance with the award of the Division and § 287.500.

Under the “record proper”, the judgment is regular and within the jurisdiction of the Division, as well as the circuit court. It follows that the judgment should be affirmed.

All concur.

      . Reference to statutes are to Missouri Revised Statutes 1969.


author: TITUS, Judge.

text:
    STATE of Missouri, Respondent, v. Anthony Curtis STARK, Appellant.
    No. 11202.
    Missouri Court of Appeals, Southern District, En Banc.
    Nov. 27, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Blair Buckley, Jr., Public Defender, Ca-ruthersville, for appellant.
   TITUS, Judge.

Charged with tampering with a motor vehicle (§§ 560.175-1 and 560.180) and as a habitual criminal (§ 556.280), defendant was jury-convicted and court-sentenced to the custody of the Department of Corrections for a term of five years.

Daryle Miles (Miles) operated a service station and a liquor store situate between Hayti and Kennett. A mobile home, occupied by Margaret Jackson (Ms. Jackson) and her children, was located near the station and store. In the summer of 1977, Miles bought a wrecked Ford Mustang which he repaired and gave to his stepdaughter after her 16th birthday on August 11, 1977. According to Miles, the wreck had produced several distinguishing cuts and marks to the G70 X 14 Goodyear tires mounted on Keystone “mag” wheels which adorned the vehicle. To keep the “mags” from rattling, shop towels had been inserted inside the hubs. Although no record had been made of the serial numbers of the tires and no identifying marks had been inscribed upon the wheels, Miles vowed that as a result of repairing the Mustang and in subsequently fixing several “flats” thereon, he had become sufficiently acquainted with the tires and wheels to identify them.

Ms. Jackson testified that near 5 a. m. January 4, 1978, defendant appeared at her trailer home wanting water for the radiator of his Plymouth station wagon so he could continue the task of transporting his brother-in-law to work. She said defendant, after procuring water, departed near 5:30 a. m. and returned in about 45 minutes. Thereafter defendant appeared to be working on his vehicle until her father and Miles appeared at the service station.

Miles recounted that when he and Ms. Jackson’s father arrived at the filling station close to 7:30 a. m. January 4, they were hailed by defendant who shortly departed the premises in his station wagon on which were then mounted no “mag” wheels or G70 X 14 Goodyear tires. About 20 minutes after defendant drove away from the station, Miles, so he testified, discovered his stepdaughter’s Mustang had been shorn of the two rear mag wheels and tires and that the car’s rear end was supported off the ground by the aid of a 5-gallon can inserted beneath the rear axle.

Subsequent to Miles reporting the theft and after a deputy sheriff made inquiry concerning the matter, a pickup order was issued for defendant. At approximately 3:20 a. m. January 5, 1978, defendant was arrested by the Kennett police while driving his Plymouth station wagon. Mounted on the rear of the vehicle were two G70 X 14 Goodyear tires on “mag” wheels.

At trial Miles and his stepdaughter identified two exhibits as being the “mag” wheels and G70 X 14 tires which had been taken from the Mustang. The stepdaughter identified a rag in one of the wheels as material that had been placed in it to prevent rattling. The deputy identified the exhibits as the wheels and tires found on defendant’s station wagon on the day after the wheels and tires had been reportedly stolen.

To the contrary, defendant testified the tire and wheel exhibits were purchased by him from a man in Illinois for the sum of $40 and that he was the person that had put the rag in the wheel to prevent it from rattling. Defendant’s sister and brother-in-law said that defendant’s station wagon was equipped with the tire and wheel exhibits on December 22, 1977, when he started staying with them. A friend of defendant testified that defendant’s station wagon had “mag” wheels mounted on its rear a couple of days after Christmas 1977.

On this appeal defendant’s first point relied on reads: “The trial court erred in overruling Defendant’s Motions for Judgment of Acquittal at the Close of All the Evidence and Motion for New Trial, because accepting as true all the State’s evidence, whether circumstantial or direct, together with all favorable inferences drawn therefrom, the evidence is insufficient as a matter of law to support a finding of guilty.”

As written, this point violates the mandatory requirements of Rule 84.04(d) because there is no attempt to demonstrate “wherein and why” the evidence was insufficient as a matter of law to support a finding of guilty. However, if the evidence was, in fact, insufficient to sustain the conviction, then plain error affecting a substantial right is involved from which manifest injustice must have resulted. Rule 27.-20(c). Therefore, we will briefly consider the point. State v. Webb, 544 S.W.2d 53, 54[2] (Mo.App.1976).

As already noted, albeit no record had been made of the serial numbers of the tires and no identifying marks had been made on the “mag” wheels, Miles and his stepdaughter made positive identification of them at trial as being the objects stolen from the Mustang. Nevertheless, even if the testimony be diluted to mere assertions that the tires and wheels looked like or looked similar to the stolen items, this would have been sufficient to warrant their admission into evidence as exhibits. State v. Kern, 447 S.W.2d 571, 575[3, 4] (Mo.1969); State v. Johnson, 286 S.W.2d 787, 791[3, 4] (Mo.1956); State v. Shipman, 568 S.W.2d 947, 953-954[13,14] (Mo.App.1978); State v. Duncan, 540 S.W.2d 130, 137[19] (Mo.App. 1976); State v. Gonzales, 533 S.W.2d 268, 274[13] (Mo.App.1976); State v. Alderman, 498 S.W.2d 69, 72 (Mo.App.1973). Identification of stolen objects at trial need not be entirely unqualified, as the weight to be given to identity is for the jury. State v. Stancliff, 467 S.W.2d 26, 30[2] (Mo.1971); State v. Holman, 556 S.W.2d 499, 504[4] (Mo.App.1977). Moreover, as the jury had leave to believe or disbelieve all, part or none of the testimony of any witness [State v. Haslip, 583 S.W.2d 225, 227[4] (Mo.App. 1979); State v. Davis, 556 S.W.2d 745, 747[2] (Mo.App.1977)], it had the right to believe the testimony adduced by the state and reject that proffered by the defense. Having thus winnowed the conflicting trial testimony, the jury came by sufficient evidence as a matter of law to support the guilty verdict.

Defendant’s second and final point relied on reads: “The trial court erred in sustaining the prosecution’s objection to Defendant’s question of prosecution witness Deputy Sheriff Hopkins as to whether he had taken any fingerprints during his investigation of the crime because it was prejudicial to Defendant’s right to expose to the trier of fact all the relevant and material facts of the case and prejudiced the Defendant by precluding defense argument as to all aspects of the weakness of the State’s case.”

Without resorting to the transcript on appeal, we are unable to fully comprehend this point. At trial defense counsel asked the deputy sheriff if he had attempted “to táke any fingerprints from any of these wheels.” The state’s objection to the question was sustained by the trial court and properly so. It has repeatedly been said that the state has no duty to take fingerprints from stolen articles nor to produce such prints into evidence. Neither is the state required to account for the absence of such prints. State v. Terry, 472 S.W.2d 426, 430[8] (Mo. banc 1971); State v. Holmes, 389 S.W.2d 30, 34[4] (Mo.1965), aff’d 428 S.W.2d 571 (Mo.1968); State v. Lankford, 565 S.W.2d 737, 740 (Mo.App.1978); State v. Estes, 562 S.W.2d 142, 145 (Mo.App.1978); State v. Rutherford, 554 S.W.2d 584, 586 (Mo.App.1977); State v. Woodson, 522 S.W.2d 651, 652 (Mo.App.1975).

Judgment affirmed.

All concur.

      . References to statutes and rules are to RSMo 1969, V.A.M.S., and to Missouri Supreme Court Rules, V.A.M.R.


author: PER CURIAM:

text:
    William Junior WEEMS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 11173.
    Missouri Court of Appeals, Southern District, En Banc.
    Nov. 27, 1979.
    John R. Hopkins, Jr., Banta, Banta & Hopkins, Charleston, for movant-appellant.
    John D. Ashcroft, Atty. Gen., James R. Cumbee, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM:

Movant, then defendant, was jury-convicted on two counts of stealing by deceit. The jury fixed punishment at five years of imprisonment on each count. No motion for a new trial was filed. After affording allocution, the court pronounced sentences in accordance with the verdicts and specified that “in the discretion of the court and not by reason of any statutory requirements” the sentences would run consecutively. There was no appeal. We now, however, have an appeal, following eviden-tiary hearing, from the court’s denial of movant’s Rule 27.26 motion, V.A.M.R., to amend or vacate the sentences.

In his Rule 27.26 motion, movant averred “he was denied the effective assistance of counsel at a critical stage of the proceedings against him, and in that critical stage of the proceedings movant claims he was denied his state and federally protected right to have a motion for new trial prepared including the prosecution of an appeal on his behalf.” Movant’s lone point relied on in this appeal states: “The court erred in denying movant’s motion to vacate and set aside the sentence and allow motion for new trial to be filed because movant was denied his constitutional right of effective assistance of counsel at all stages of the proceedings. Movant’s counsel was ineffective to movant’s prejudice in that counsel did not file motion for new trial in accordance with appellant’s [movant’s] qualified instructions, nor did counsel adequately inform appellant [movant] that sentences could run consecutively so that grounds for new trial could be explored.” Unlike reproductions here, the foregoing quotes from movant’s motion and his point relied on, supra, were penned in capital letters. Such presentations, we surmise, were designed to overpower, by written shoutings, half the shortcomings envisioned in the merits of the cause. (Apologies to John Milton, Paradise Lost, Book I, line 648).

At the hearing on the Rule 27.26 motion, movant, in substance, testified that at his trial on the two charges of stealing by deceit he “understood” that when “Mr. McTigue, the foreman of the jury . . read out" the verdicts it was for “two fives to run concurrently.” Movant stated his lawyer “said he understood [the sentences were] running concurrently also”, so “I told him as long as my two times was running concurrently I didn’t want to file an appeal or no motion for new trial.” On cross-examination, movant acknowledged that at the time of allocution and sentencing, the following occurred: “The Court: In accordance with the verdict of the jury and after having advised the defendant of the jury’s verdict returned herein and no motion for a new trial having been filed, the court . sentences the defendant to five years on Count I and five years on Count II, and it is further ordered that the sentence on Count II run consecutively with the sentence in Count 1 . . . . Do you have anything to say or any lawful or legal reason or cause to give why the court should not pronounce sentence? [The defendant] No, sir.”

It was further established from the record during movant’s testimony that one Prince Moxley, not Mr. McTigue, was foreman of the jury at the criminal trial and that the court “read out” the verdict rather than the foreman as contended by movant. Also, the transcript of the proceedings at the time of sentencing shows the following occurred: “The Court: Now, I find that no motion for new trial was filed. [Defendant’s Counsel] That is correct, Your Honor. The Court: You consulted with your lawyer about that motion? The Defendant: Yes, sir. The Court: And it was at your request that no motion be filed? The Defendant: Yes, sir.”

Movant’s counsel on the criminal charges testified at the hearing of the Rule 27.26 motion. Briefly, he stated that although he moved the court to have the sentences run concurrently (which was overruled by the court in movant’s presence), movant’s instructions to him not to file a motion for a new trial and not to take an appeal were not conditioned upon the imposed sentences running concurrently.

Appellate review of the trial court’s ruling on a Rule 27.26 motion is “limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Rule 27.-26(j). A determination that the trial court was “clearly erroneous” is permissible only if, after reviewing the record, this court is left with a definite and firm impression that a mistake has been made. Fellers v. State, 576 S.W.2d 571, 572[1] (Mo.App.1979). Also to be remembered is that the burden of proof in these cases lies upon movant [Pickens v. State, 549 S.W.2d 910, 913[8] (Mo.App.1977)], and as the weight of the evidence and the credibility of the witnesses are matters for the trial court alone, it has the right to reject the movant’s testimony and believe testimony contrary thereto. Vandiver v. State, 552 S.W.2d 374, 376[2, 3] (Mo.App.1977).

In view of the previously noted inconsistencies between movant’s testimony and the record regarding the identity of the jury foreman, and who “read out” the verdicts and the proceedings at the time of allocution and sentencing, and in light of the testimony of counsel who represented mov-ant in the criminal trial that movant’s waiver of a new trial motion and appeal was not conditioned upon concurrent sentencing, we are possessed of no definite and firm impression that the court nisi’s order denying the Rule 27.26 motion was a mistake or clearly erroneous.

Judgment affirmed.

All concur.

      . We are confident the court did not speak in Roman numerals as indicated by the transcript on appeal as quoted above.


author: DOWD, Presiding Judge.

text:
    Robert Gene BURROUGHS, Movant, v. STATE of Missouri, Respondent.
    No. 40238.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 27, 1979.

      Robert C. Babione, Public Defender, Nick A. Zotos, Asst. Public Defender, St. Louis, for movant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   DOWD, Presiding Judge.

Movant, Robert Gene Burroughs was convicted of first degree robbery and was sentenced to fifteen years in the Missouri State Penitentiary. His conviction was upheld on appeal. State v. Burroughs, 559 S.W.2d 42 (Mo.App.1977). Movant sought to have the judgment vacated pursuant to Rule 27.26 on the grounds that he had been denied effective assistance of counsel. Movant contended that due to counsel’s failure to call Ms. Ford, an eyewitness, to testify and because counsel strongly advised Movant not to testify in his own behalf, he was denied a fair trial.

At the evidentiary hearing Movant testified that he informed his attorney, Mr. Townsley, several months before trial, that Ms. Ford was willing and able to testify. Movant gave Mr. Townsley Ms. Ford’s address. Movant further stated that he wanted to testify in his own behalf and had so advised his attorney on several occasions.

When called to testify at the hearing, Mr. Townsley explained his investigative procedures and his trial strategy. Mr. Townsley stated that he had interviewed the alleged purchaser of the stolen property, a Mr. Fritz, but had concluded that his testimony would not be helpful. Mr. Fritz was unsure of the facts and was unwilling to testify. The information which he was willing to provide indicated that the Movant was a party to the offense. Such testimony would have been clearly detrimental to the Movant’s case.

Ms. Ford, the eyewitness whom Movant wanted to call to testify was his wife’s sister. Mr. Townsley discussed with Mov-ant’s wife, Ms. Burroughs, the possible use of Ms. Ford as a witness for the Movant. Ms. Burroughs was of the opinion, however, that her sister might attempt to place all the blame on the Movant thereby exculpating her boyfriend who had also been involved in the incident. This discussion and the fact that Ms. Ford was very young led Mr. Townsley to believe that her testimony would not be beneficial to his client’s case. Despite these facts Mr. Townsley told Ms. Burroughs to have her sister call him. Ms. Ford never contacted him although she later testified that she was at all times willing and available to testify.

Movant also contended that during the course of trial preparation that he asked to be allowed to testify in his own behalf. Mr. Townsley advised him repeatedly that to do so would seriously jeopardize his case because his prior convictions would be revealed on cross examination. The Movant himself admitted, during his testimony at the hearing, that his attorney did not prohibit him from taking the stand but merely advised him not to do so.

The trial court denied relief on the motion concluding that the Movant failed to prove by a preponderance of the evidence that his counsel’s omissions resulted in a substantial deprivation of the right to a fair trial.

The permissible scope of this court’s review is limited. We must decide whether the findings, conclusions and judgment of the trial court in denying Movant relief were clearly erroneous. Rule 27.26(j); Noble v. State, 552 S.W.2d 267, 272 (Mo.App. 1977). We hold that they were not.

An attorney is presumed to be competent in the manner in which he conducts pretrial preparation and in the tactics he employs during trial. Pickens v. State, 549 S.W.2d 910, 912 (Mo.App.1977); Haynes v. State, 534 S.W.2d 552, 554 (Mo.App.1976). The burden lies with the party asserting that counsel has not competently handled his case to prove it by a preponderance of the evidence. Rule 27.26(f); Babcock v. State, 485 S.W.2d 85, 89 (Mo.1972). This burden is particularly onerous in this regard because of the wide latitude granted counsel in the preparation for and conduct of trial. Stevens v. State, 560 S.W.2d 599, 600 (Mo.App.1978); Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973). Deciding which witnesses to call or whether to call any witnesses is a matter of trial tactics and within the purview of counsel’s exercise of professional judgment. Stevens at 600; Williams v. State, 536 S.W.2d 190, 192 (Mo. App.1976). Counsel testified that he investigated, to some degree, both witnesses suggested by the Movant but concluded that neither would be helpful to his case. The trial court chose to believe the attorney’s testimony. This is purely a question of credibility which is for the trial court to determine. We will defer to its finding in this regard. Campbell v. State, 515 S.W.2d 453, 456 (Mo.1974).

The trial court found, as a matter of law, that, in the light of the particular circumstances of this case, counsel’s investigation was sufficient. We do not find this conclusion by the court to be erroneous.

Point one is ruled against the Movant.

Movant’s second point, that counsel deprived him of the opportunity to testify to the jury, is not supported by the evidence. It is, therefore, without merit. The evidence offered by both counsel and Mov-ant at the hearing on the motion indicated that the Movant wanted to testify and that counsel exercised his professional judgment as to whether Movant should testify and decided, that, in light of his past convictions, he should not. It is not for this court to determine whether counsel should have adopted a different trial strategy. State v. Davis, 505 S.W.2d 115, 118 (Mo.App.1974).

Point two is ruled against Movant.

Judgment affirmed.

REINHARD and CRIST, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Harold MONTGOMERY, Defendant-Appellant.
    No. 40767.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 27, 1979.

      Robert Babione, Public Defender, Blair K. Drazic, Lydia R. Glasgow, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Gordon L. Ankney, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Presiding Judge.

Harold Montgomery, defendant, was convicted of operating a motor vehicle without the owner’s consent contrary to § 560.175(1) and § 560.180(1), RSMo 1969 (since repealed). He was sentenced to three years by the trial court in accordance with the jury recommendation.

Defendant’s sole point on appeal is that the trial court erred, in allowing the State to amend the information at the close of the evidence to conform thereto. The information was amended by interlineation of the words “or on or about May 16, 1977.” The effect of the amendment was to add another date upon which the crime could have been committed. There was nothing deleted from the original information by the amendment. Specifically, defendant argues that such addition constituted an impermissible amendment under Rule 24.02 in that it charged him with an additional offense.

Amendment of informations is within the trial court’s discretion provided the amendment does not charge the defendant with a different or additional crime nor prejudice his rights. State v. Huffer, 424 S.W.2d 776, 780 (Mo.App.1968).

In a case such as this one, where the date of commission is not essential to the crime charged we find no abuse of discretion by the trial court in allowing an amendment which merely added another date to the original information. State v. Snyder, 502 S.W.2d 339, 342 (Mo.1973). The defendant was charged with the same offense after amendment as before.

In his brief on appeal, the defendant concludes that he suffered surprise by the amendment and that he was unable “to prepare to meet the additional date of the alleged offense”. This conclusion is totally unsupported by factual allegations and is unpersuasive in light of the fact that the defendant presented no evidence for his defense as to any of the dates listed in the information.

The cases cited by the defendant do not support his position. We find the amendment to conform the information to the evidence was proper and well within the trial court’s discretion in that the defendant was not charged with a different or additional crime nor were his rights prejudiced.

Affirmed.

CRIST and REINHARD, JJ., concur.

      . The pertinent section of the information as amended reads as follows:
      That Harold Montgomery . . . between 9:40 p. m. on the 13th day of May, 1977, and 3:00 a. m. on the 14th day of May, 1977, or on or about May 16, 1977 . . did . operate a motor . . without the permission so to do of .


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Respondent, v. Anthony IRVIN, Appellant.
    No. 40881.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 27, 1979.
    Charles E. Kirksey, Jr., St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Mary P. C. Pincus, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Senior Judge.

A jury found defendant Anthony Irvin guilty of robbery and armed criminal action. The court sentenced defendant, as a prior felon, to consecutive terms of twenty and five years.

Defendant has appealed, challenging the court’s admission of his photographs, refusal to voir dire jurors concerning communication with a spectator, and a double jeopardy challenge to the armed criminal action statute.

Defendant does not challenge the sufficiency of the evidence. In sum, it was that two armed men — one identified from his photographs as the defendant — entered the victims’ filling station, forced them to lie on the floor and robbed them.

The victims could not identify defendant at trial, held eighteen months after the robbery. But, shortly after the robbery the victims did identify defendant from a group of police photographs and did so again at a photographed, five-man line-up. Both these photographs were taken after defendant was arrested.

Defense was alibi, rebutted by the state and obviously rejected by the jury.

Defendant primarily challenges the evidentiary admission of his photographs, taken by police, on the ground they branded him as a prior convict. By failing to raise this point by after-trial motion defendant has failed to preserve the point. But on our motion we have reviewed the point.

Both victims declined to make court-room identification of defendant, explaining they had not seen him for a year and a half after the robbery and at trial he no longer wore a beard as he had at the robbery. The state bridged this gap by photographs, identified by police as one taken of defendant when arrested and the other taken at the line-up the victims had observed. The victims testified each photograph showed the man who had robbed them. The photographs were taken after defendant’s arrest and were shorn of identifying marks before being shown to the jury. We hold the photographs were admissable as relevant to defendant’s identity. Compare State v. Tyler, 454 S.W.2d 564[7] (Mo.1970) and State v. Poor, 533 S.W.2d 245[9] (Mo.App.1976).

We deny defendant’s sub-point that the photographs impermissibly depicted him as a prior criminal. They did not, but in any event defendant conceded this by admitting his prior felony conviction. We find no error here.

As said, defendant contends the trial court should have granted a mistrial for failure to question jurors about an incident that occurred as the jurors were leaving the courtroom. One juror told another that a spectator had then asked which juror was the foreman. Counsel learned of this incident and informed the court; it declined defense counsel’s request to interrogate the jurors.

The bystander’s innocuous question to the juror gave no indication of jury tampering or misconduct. Granting a mistrial is discretionary and to be granted only in extraordinary cases where prejudice is clear. As said in State v. O’Neal, 436 S.W.2d 241[9] (Mo.1968): “The mere possibility that something prejudicial could have happened, of which there is no proof, is insufficient to require a new trial.” We find no abuse of discretion in the trial court’s ruling.

We deny defendant’s final point that convicting him of both robbery and armed criminal action constituted double jeopardy. The point was denied in State v. Treadway, 558 S.W.2d 646[8 —16] (Mo. banc 1977), followed in State v. Valentine, 584 S.W.2d 92[1 — 8] (Mo. banc 1979).

Judgment affirmed.

DOWD, P. J., and REINHARD and CRIST, JJ., concur.


author: MAUS, Judge.

text:
    Ronald Lee CALLAWAY, Petitioner-Appellant, v. Lois Jean CALLAWAY (Howard), Respondent-Respondent.
    No. 11106.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 29, 1979.

      Loren R. Honecker, Honecker & Bender, Springfield, for petitioner-appellant.
    Charles E. Lee, Walker, Salveter & Stoner, Springfield, for respondent-respondent.
   MAUS, Judge.

This is an appeal from an order of modification of child custody. Ronald Lee Calla-way and Lois J. Callaway were married when he was 18 and she was 15 years of age. Laura J. Callaway was born to this marriage on August 23,1974. After a brief unsettled period their marriage was dissolved on November 24,1976. At that time Laura had been in the care of her paternal grandparents for approximately six months. The circumstances of her parents were summarized in the Home Study Report: neither parent was ready, mature enough, to assume responsibility for Laura. As a result, by the decree of dissolution, the child was placed in the custody of the paternal grandmother, Eleanor C. Callaway. Perhaps implying this was a temporary award, the trial court added “until further order by the Court".

On May 15, 1977, Lois married Clayton Howard. On September 6,1977, she filed a motion to modify the decree and gain custody of her daughter. The paternal grandmother was in effect permitted to intervene and participate in the hearing in opposition to the motion. A detailed statement of the evidence would serve no useful purpose. The mother’s evidence may be summarized: she now has a stable home life; she and her present husband, who is regularly employed, are able and desirous of providing a home for the child. She also presented evidence of a growing bitterness between herself and the paternal grandmother and unsatisfactory circumstances surrounding visitation. Credence is lent to this too often appearing problem by the assertive testimony of the grandmother which is reflected in the Home Study Report as follows: “[S]he honestly admits she doesn’t care for Mrs. Howard and really wishes she would move away and leave them alone.” The paternal grandmother resisted the motion citing the mother’s instability, her lack of interest in the child, and the desire and ability of the grandparents to care for the child. It was not asserted that the father, who lived with his parents, was desirous or capable of assuming responsibility for the child.

The trial court found the issues in favor of the movant and placed the child in custody of her mother, with the father and grandmother to have visitation from 6:00 p. m. each Friday until 6:00 p. m. each Saturday. The father was ordered to pay $10.00 per week child support. The father appeals.

The scope of review by this court is more than well established: “[T]he order of the trial court will be sustained unless there is no substantial evidence to support it or is against the weight of the evidence or erroneously declares or applies the law. . We set aside a decree as against the weight of the evidence only ‘with a firm belief that the decree ... is wrong.’ ” Cook v. Lodes, 560 S.W.2d 64, 65 (Mo.App.1977). Remarriage of a non-custodial parent is not per se a basis for modifying a decree to grant custody to that parent. However, where a mother, who has been denied custody in favor of a non-parent because of her parental immaturity, shows a remarriage, coupled with increased maturity and the desire and apparent ability to be a parent in fact, there should be no doubt such circumstances may be the basis for modification. Meinking v. Meinking, 529 S.W.2d 440 (Mo.App.1975). In similar circumstances it has been said: “Certainly, as against the claim of grandparents, the right of the natural mother fit for custody is paramount.” Downing v. Downing, 537 S.W.2d 840, 844 (Mo.App.1976). The basis for the modification was intensified by the bitter relationship between the grandmother and mother and difficulties in visitation found to exist. R. L. S. v. J. E. S., 522 S.W.2d 5 (Mo.App.1975). In their exceptionally well constructed and literate brief, the appellant argues the child should not be removed from the proven environment of the grandparents to the untested environment of the mother. However, if this argument was controlling an errant but repentant and re-established parent could never, in the absence of deterioration of the custodial environment, regain custody of his or her child. This cannot be controlling. All too often trial courts must make a custodial choice which, regardless of the alternative required by a consideration of the evidence, will result in heartache to someone. In this case, to devoted grandparents. However, the order of modification is supported by substantial evidence and does not erroneously declare or apply the law and is affirmed.

All concur.


author: PER CURIAM.

text:
    ALLSTATE INSURANCE COMPANY v. Helen CHANCE.
    No. B-8587.
    Supreme Court of Texas.
    Nov. 7, 1979.
    Gordon R. Pate, Beaumont, for petitioner. George Michael Jamail, Beaumont, for respondent.
   PER CURIAM.

This is a suit on a fire insurance policy, seeking damages for a total loss of a dwelling and the household goods located in it. Mrs. Chance, the plaintiff, sought to prove the value of her household goods by means of a list she prepared, giving the approximate cost and age of each item and where it was purchased. Based upon this material, she sought to testify that it represented the value at the time of loss. She was not allowed to testify to a total of “about $8,000” but the list itself was admitted in evidence. Allstate’s adjuster, working from a similar list supplied by Mrs. Chance, arrived at a value of $3,963.41. The jury found the value of the household goods to be $6,000 and the trial court awarded judgment accordingly.

The Court of Civil Appeals (582 S.W.2d 530) held that the testimony and list of Mrs. Chance was not proper or competent evidence of the actual cash value of the items at the time of loss, but that the testimony of Allstate’s adjuster properly determined the actual cash value and that there was no evidence contradictory to his testimony.

The Supreme Court wrote in Crisp v. Security National Insurance Co., 369 S.W.2d 326, 329 (Tex.1963):

«* * * rpjje jaw 0f (jamages distinguishes between marketable chattels possessed for purposes of sale and chattels possessed for the comfort and well-being of the owner. In the instance of the former it judges their value by the market price. In the instance of the latter it measures their loss, not by their value in a secondhand market, but by the value of their use to the owner who suffers from their deprivation. The latter measure is employed in the case of household furniture, family records, wearing apparel, personal effects, and family portraits
“The courts have not abandoned the consideration of either market or reproduction or replacement values in arriving at actual value to the insured, but evidence of those values may be used as a guide in making that determination rather than a shackle which compels strict adherence thereto. The trier of facts may consider original cost and cost of replacement, the opinions upon value given by qualified witnesses, the gainful uses to which the property has been put as well as any other facts reasonably tending to shed light upon the subject .
“Where property, such as household goods and wearing apparel, has no recognized market value, the actual value to the owner must be determined without resort to market value.”

Also see Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.1963), and Mew v. J & C Galleries, 564 S.W.2d 377 (Tex.1978).

Thus, the rule is that where household goods have no recognized market value, the trier of fact may consider, in determining the actual value to the owner at time of loss, the original cost, cost of replacement, opinions of qualified witnesses, including the owner, the use to which the property was put, as well as any other reasonably relevant facts.

The Court of Civil Appeals erred in holding that the testimony of Mrs. Chance was not competent evidence on the value of household possessions at time of trial. This holding is contrary to the Supreme Court’s holding in Crisp. The Court correctly held that Mrs. Chance is not entitled to attorneys’ fees in this case under Article 3.62 of the Texas Insurance Code.

Pursuant to Rule 483, Texas Rules of Civil Procedure, we grant both applications for writ of error and, without hearing oral argument, we reverse the judgment of the court of civil appeals and we render judgment that Helen Chance recover $6,000 from Allstate Insurance Company for personal property and $20,000 for total loss of the insured premises, plus nine per cent (9%) per annum, on the $20,000, calculated from May 19, 1976, and nine per cent (9%) per annum on the $6,000 calculated from August 3,1978, until the date this judgment is paid. All costs of this suit shall be taxed against Allstate Insurance Company.