author: SMITH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Leroy GANAWAY, Defendant-Appellant.
    No. 37458.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 23, 1977.

      James F. Malone, St. Louis, for defendant-appellant.
    Walter Theiss, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., James F. Booth, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendant was convicted by a jury of assault with intent to kill without malice and sentenced to five years imprisonment. He appeals.

No contention is made that the evidence was insufficient to support a conviction. Defendant shot Charles Hardin six times with a pistol. On the stand he admitted the shooting but testified it was done in self-defense. Defendant’s first contention of error is in the failure of the trial court to grant a mistrial after the prosecutor had asked defendant to identify a picture mistakenly believed by the prosecutor to have been taken on the night of defendant’s arrest by the police. In fact, the photograph had been taken two months before. Defendant responded that that was the picture taken at the time of his arrest. The Court denied defendant’s motion for a mistrial but instructed the jury to disregard any reference to the photograph. Defendant also testified he had no previous trouble with the police except traffic violations and at the close of the defendant’s testimony the prosecutor stipulated that defendant had had no “other difficulty with the police at all than he has mentioned.”

Defendant contends the erroneous identification of the photograph indicated to the jury that defendant had been involved in some other crime. First of all, we do not find that apparent simply from an identification of the photograph. Certainly there was no direct reference to any other crimes. The photograph, in and of itself, does not justify a conclusion that the jury would infer prior criminal activity. See State v. Harris, 534 S.W.2d 516 (Mo.App.1976). Secondly, the court's admonition to the jury, defendant’s testimony, and the State’s stipulation of the accuracy of that testimony removed any possible inference which the jury might have drawn from the testimony concerning the photograph. The mistake was inadvertent, the trial court and the prosecutor both acted to remove any potential prejudice to defendant. We find no prejudicial error in the court’s action in refusing the motion for mistrial.

Defendant also contends that the trial court erred in making a protective order preventing defendant from commenting on the failure of the State to call one of the arresting policemen as a witness.

One of the arresting policemen, Thomas, testified that when defendant was arrested he denied having shot Hardin. Defendant testified he called the police to report the shooting and admitted the shooting. The police report was prepared by an Officer Eberle. That report was not introduced into evidence and is not before us. It apparently contains statements not totally compatible with either Thomas’ or defendant’s version. There is testimony that the statement reported by Thomas was made immediately after the arrest, and that Officer Eberle talked to defendant after Thomas had left. Eberle had left the police service prior to trial and would not cooperate in prosecution efforts to have him appear voluntarily.

When a jury is made aware of a witness who would appear from the facts and circumstances to be favorable to a party, and that witness does not testify, an adverse inference may be drawn against the party for whom the witness could be expected to testify. State v. Barron, 465 S.W.2d 523 (Mo.1971); State v. Beasley, 353 Mo. 392, 182 S.W.2d 541 (1944). The rule applies only if the testimony of the witness would be material and relevant to the issues, and not merely cumulative or inadmissible. State v. Wallach, 389 S.W.2d 7 (Mo.1965); State v. Davis, 504 S.W.2d 221 (Mo.App.1973). Additionally, the witness must at the time of trial be more “available” to the party against whom the inference is to be drawn. State v. Barron, 465 S.W.2d 523 (Mo.1971); State v. Collins, 165 S.W.2d 647 (Mo.1944). The “availability” requirement is generally the area of greatest dispute. As stated in State v. Collins, 350 Mo. 291, 165 S.W.2d 647 (1942) the determination of availability is not whether the witness is “merely available or accessible for the service of a subpoena.” (l.c. 648).

“To the contrary, the question of whether a witness is ‘available’ to one or the other of the contending parties depends upon such matters as [1] the one party’s superi- or means of knowledge of the existence and identity of the witness, [2] the nature of the testimony that the witness would be expected to give in the light of his previous statements or declarations, if any, about the facts of the case, [3] and the relationship borne by the witness to a particular party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation and make it natural that he would be expected to testify in favor of the one party and against the other.” State v. Collins, supra, l.c. 649 (Bracketed numbers added).

The tests set forth in Collins, and carried forward largely without analysis in later cases, must be viewed in the present day context of modern discovery. See Rules 25.30 through 25.45. Such an approach to “availability” was utilized in the civil area shortly after adoption of civil discovery rules. See Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506 (banc 1948) [18-20]; Moore v. St. Louis Public Service Co., 251 S.W.2d 38 (Mo.1952) [4-6]. The first two tests set forth in Collins should rarely have application in view of the extensive discovery now available in criminal cases. The identity of witnesses, their prior declarations, and expected testimony are equally available to both parties. The third test is intended to avoid the trial difficulty of a party placing an adverse witness on the stand and thereby vouching for his credibility. But again, much of the need embodied in this test is obviated by the ability of the adverse party to determine before trial the testimony to be expected and to utilize variations therefrom as a basis for impeachment under a claim of surprise.

Discovery procedures have changed the concept of a lawsuit from a “sporting contest” to a “search for truth.” An inference of unfavorability has a valid function only to the extent it constitutes a reasonable inference. If, in fact, it is known or is readily discoverable, that the testimony of the witness would be favorable to one side it does not serve justice to presume the contrary. There are circumstances where the inference is permissible, but the original reasons for the rule have been largely eliminated by the availability of discovery to both sides. The trial judge therefore must be given great discretion in determining whether the facts and the preparation efforts of the litigants warrant an invocation of the inference. The inference is not, after all, a substitute for trial preparation or the truth.

Applying these principles to the facts here we find no error. On the basis of the evidence before the jury the testimony of Eberle was merely cumulative of that of Thomas. It became conflicting only because of an unoffered police report available to the defendant. There is no indication that defendant sought the address of Eberle from the State or made any attempt to interview or depose the witness. Eberle was not an employee of the State when the case was tried and was not cooperative about testifying. Under the circumstances he was no more available to the State than to defendant and there is nothing in the record upon which to conclude his testimony would have been unfavorable to the State. We find no abuse of discretion by the trial court.

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Victor Z. SMITH, Appellant.
    No. 38523.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 23, 1977.

      Robert C. Babione, Public Defender, Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto and Jeffrey W. Schaperkoetter, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., James W. McCartney, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant guilty of second degree burglary and under the Second Offender Act the court sentenced him to five years’ imprisonment.

The evidence showed entry into Della Phillips’ home by breaking a glass transom. A television set was stolen. Bloodstains were found in the house and a police serologist testified several matched defendant’s blood type. He also testified he found another set of bloodstains differing from defendant’s. Defense counsel claimed surprise at this and requested a continuance to review the laboratory reports. The trial court denied a continuance but did allow defense counsel half an hour to interview the police witness.

Police Officer Gary Aubuchon was expected to testify fingerprints found in the home matched defendant’s. Due to Aubu-chon’s illness, just before trial he was replaced by Officer Gerald Hart; defendant objected to the late endorsement but was overruled.

Defendant assigns as error: (1) Denial of a mistrial when the prosecutor during voir dire attempted to define “reasonable doubt,” (2) denial of a continuance to review police laboratory reports containing previously undisclosed evidence of bloodstains of another person, (3) permitting an unendorsed witness to testify and (4) refusal of a mistrial for prejudicial closing argument.

Defendant first contends the trial court erred in denying a mistrial when the prosecutor attempted to define “reasonable doubt” on voir dire by stating that did not mean “any probability of a doubt.” Granting a mistrial rests largely within the trial court’s discretion; it is a drastic remedy and should be exercised only when no lesser action will remove the claimed prejudice. State v. Few, 530 S.W.2d 411[4-6] (Mo.App.1975). Here, the court sustained the defense objection and instructed the jury to disregard the statement. This removed the prejudicial effect and the trial court did not abuse its discretion in denying a mistrial.

Defendant next contends the trial court erred in denying a continuance to review laboratory reports concerning bloodstains of a type other than defendant’s. He contends this deprived him of favorable evidence requested in pretrial discovery. This, despite the fact the court allowed a half-hour delay to permit defense counsel to interview the expert witness.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1962), the court held suppression of material evidence favorable to an accused violates due process. Similarly, our supreme court has held information known to the state must be produced when without it defendant’s trial would be fundamentally unfair. State v. Aubuchon, 381 S.W.2d 807[5-10] (Mo.1964). These rulings have been codified by Rule 25.32, V.A.M.R.

In State v. Gollor, 502 S.W.2d 258[6] (Mo.1973), however, the court held evidence showing the existence of an accomplice was irrelevant to defendant’s guilt. Here, fingerprint and blood-type evidence placed defendant at the burglary scene. Evidence of another’s blood tended to show only that defendant had an accomplice. That was not material to defendant’s guilt and need not have been disclosed before trial. The trial court did not err in denying a continuance.

Defendant next contends the trial court erred in allowing Officer Hart to testify because he was not endorsed until trial. Officer Gary Aubuchon had been endorsed to testify about fingerprints at the burglary scene matching defendant’s. Upon learning Officer Aubuchon was ill the state substituted Officer Gerald Hart. Over defense objection the trial court permitted Officer Hart to testify.

Although delay in endorsement of witnesses is discouraged, a late endorsement is permissible if non-prejudicial. State v. Jordan, 532 S.W.2d 776[1] (Mo.App.1975). A trial court may permit such endorsement when considering such factors as whether the state intended surprise, acted deceptively or in bad faith (State v. Glon, 253 S.W. 364[1] (Mo.1923)), whether defendant was surprised (State v. Webb, 432 S.W.2d 218[1, 2] (Mo.1968)), or whether the testimony given might readily have been anticipated (State v. Gooch, 420 S.W.2d 283[14] (Mo.1967)).

Officer Hart was substituted for Officer Aubuchon to give fingerprint identification testimony. Defense counsel expected Officer Aubuchon to be called and anticipated his testimony. Only the identity of the witness and not its. substance could have surprised defendant. The prosecutor acted in good faith, the substance of the testimony was anticipated and the substitution did not disadvantage defendant. Furthermore, defendant failed to ask for a continuance and fully cross examined Officer Hart.

We will not reverse a conviction when the alleged error has not materially affected the merits of the action. Rule 84.13(b), V.A.M.S.; Mid-Continent National Bank v. DeShong, 538 S.W.2d 914[3 — 5] (Mo.App.1976). Officer Hart’s late endorsement does not rise to the level of material error requiring reversal.

Last, defendant contends the trial court erred in denying a mistrial because the prosecuting attorney remarked during closing argument: “If all these things are not enough, then we might as well open up the city jail and let them come running out of there.” Defense objection was sustained and the jury instructed to disregard the remark, but the trial court denied a mistrial.

Defendant argues he was prejudiced because the remark struck personal fear into the jurors and unfairly characterized him by equating him with people held in the city jail. The argument is far-fetched and was neutralized by the court’s corrective ruling. Compare State v. Raspberry, 452 S.W.2d 169 (Mo.1970).

Judgment affirmed.

DOWD and SMITH, JJ., concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Respondent, v. Sharon Louise ROBINSON, Appellant.
    No. 37135.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 30, 1977.
    Robert C. Babione, Public Defender, 22nd Judicial Circuit, Mary Louise Moran, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   NORWIN D. HOUSER, Special Judge.

Sharon Louise Robinson, convicted of second degree murder and committed for a 10-year period, has appealed, raising the single point that “The trial court erred in refusing to allow [in evidence] the deceased’s criminal record, his reputation and the drugs and paraphernalia discovered in his truck, and the Appellant’s testimony of her knowledge that the victim carried a gun * * * >>

No point with respect to the sufficiency of the evidence to support a conviction having been raised, it is enough to recite that the evidence showed the following: Defendant and Lewis Collins Ford had an argument in the apartment where defendant and Ford’s daughter lived. During the argument Ford struck defendant and threatened to kill her. He left the apartment and went to his truck, parked in front of the building. Defendant followed Ford to the front door. Ford reached in the truck, put something in his pocket and started walking towards defendant. Retrieving a pistol which she had hidden under the front step of the building, defendant shot Ford three times, inflicting mortal wounds. Defendant pleaded self-defense.

On direct examination defendant was asked, “Had you ever seen him [the deceased] in possession of a weapon before?” Objection on the ground of irrelevancy was sustained. “Thereafter no offer to prove was made by appellant, and we are therefore entirely in the dark as to what this excluded evidence was.” State v. Roberts, 280 Mo. 669, 217 S.W. 988, 991 [1] (banc 1920). Appellant did not offer to prove facts showing that the carrying of a weapon on a prior occasion had any relation to or reference to defendant, State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079, 1085 [15] (1931), or that deceased was in the habit of carrying firearms or other deadly weapons, to the knowledge of appellant, 40 C.J.S. Homicide § 272 e., p. 1225, or any other facts showing that the inquiry was relevant. “Absent an offer to prove, we have no sufficient basis upon which prejudicial error may be adjudged.” State v. Roberts, supra; 9A Mo. Dig. Criminal Law

At the commencement of the trial, before opening statements, the State sought and procured a protective order or ruling that the court would not allow defendant to prove deceased’s prior criminal record. Defendant testified that in the course of the argument with Ford he struck her with his fists “more than three times” and knocked her down; said he was going to have to kill her; that he was not going back to the penitentiary, and was going to have to blow her brains out. Defendant argues that testimony showing Ford’s criminal record and defendant’s knowledge of his record “would have been relevant to support [defendant’s] apprehension that her life was in danger” and would “give additional credence in the mind of [defendant] to the threat made by the deceased,” and therefore it was error to refuse to allow defendant to introduce Ford’s criminal record.

In a murder prosecution where self-defense is pleaded evidence that deceased bore a reputation of having a turbulent or violent disposition or character is competent, State v. Parker, 358 Mo. 262, 214 S.W.2d 25, 27 (1948), but specific acts of violence are not admissible to prove character and reputation, State v. Davis, 365 S.W.2d 577 (Mo.1963), and proof of crimes, particularly crimes other than crimes of violence, is excluded. 40 C.J.S. Homicide § 272 f., p. 1228; State v. Naylor, supra. The crimes of which deceased had been convicted were narcotics crimes, not crimes of violence. There was no error in refusing to allow proof of these convictions.

In addition to the court’s interdiction of deceased’s criminal record the protective order preliminarily excluded evidence concerning the general reputation of the deceased, and evidence that following the shooting police found narcotics and drug paraphernalia in deceased’s truck. Defendant’s point that the court erred in excluding evidence of the general reputation of deceased for turbulence and violence has not been preserved for appellate review because (1) defendant made no offer of proof with respect to deceased’s reputation, an offer of proof being necessary to require appellate consideration, State v. Britt, 504 S.W.2d 38, 42 [5] (Mo.1973), and (2) appellant failed to raise the point in her motion for new trial. State v. Peterson, 518 S.W.2d 1, 3 [2] (Mo.1974).

Exclusion of the evidence with respect to narcotics and drug paraphernalia found in deceased’s truck (a specific act of criminality) was proper for the same reasons that it was proper to exclude evidence of the victim’s criminal convictions.

Affirmed.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.


text:
    STATE of Missouri, Respondent, v. June Aaron SANDERS, Jr., Appellant.
    No. 37738.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 30, 1977.

      Daniel V. O’Brien, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Noel Robyn, Asst. Pros. Atty., Clayton, for respondent.
   NORWIN D. HOUSER, Special Judge.

A jury convicted June Aaron Sanders, Jr., of second degree murder. Given a 20-year sentence, he has appealed, contending that the court erred in not giving an instruction on the imperfect right of self-defense, and that it was error to admit in evidence two photographs of the dead body of deceased because they were gruesome, inflammatory and prejudicial.

The court gave instructions on first and second degree murder, excusable homicide (accident), justifiable homicide (perfect self-defense), and Instruction No. 7 that if the jury did not find defendant guilty of first or second degree murder they should find him guilty of manslaughter upon a finding that defendant caused the death of Wilfred Smart by shooting and that his death was not justifiable or excusable homicide as those terms were defined in the other instructions.

Appellant asserts that Instruction No. 7 was not a complete exposition or definition of the law of manslaughter; that the jury should have been given an alternative other than murder or conventional manslaughter, in that appellant was entitled to a reduction of the offense to manslaughter upon a finding that although he provoked the difficulty or fight, in the course of which it became necessary to take the life of one of his adversaries in order to save his own life, appellant did so without any felonious intent or purpose on his part to kill or inflict serious bodily harm.

We have concluded that there was no error in failing to instruct on the imperfect right of self-defense.

A person charged with murder is entitled to complete exoneration on the ground of (perfect) self-defense if defendant did not provoke the use or threat of force against himself, and if defendant had reasonable cause to believe and did believe that he was in immediate danger of death or serious bodily harm and had reasonable cause to believe and did believe that it was necessary to take the life of his adversary in order to protect himself from such danger. Instruction No. 8, framed in the language of MAI-CR 2.40, so instructed the jury.

A person charged with murder is entitled to be acquitted of murder and to have the grade of the homicide reduced to manslaughter on the ground of imperfect self-defense if defendant wrongfully and unlawfully but without felonious intent to kill or do serious bodily harm provoked the use or threat of force against himself at the time of the killing, and if thereafter he had reasonable cause to believe and did believe that it was necessary to take the life of his adversary in order to protect himself from such danger. State v. Partlow, 90 Mo. 608, 4 S.W. 14 (1887); State v. Parker, 106 Mo. 217, 17 S.W. 180 (1891); State v. Bailey, 190 Mo. 257, 88 S.W. 733 (1905); State v. Zorn, 202 Mo. 12, 100 S.W. 591 (1907); State v. Kretschmar, 232 Mo. 29, 133 S.W. 16 (1910); State v. Reeves, 195 S.W. 1027 (Mo.1917); State v. Harlan, 240 S.W. 197 (Mo.1922); State v. Creed, 299 Mo. 307, 252 S.W. 678 (1923); State v. Davis, 268 S.W. 44 (Mo.1924); State v. Miller, 307 Mo. 365, 270 S.W. 291 (1925); State v. Dollarhide, 333 Mo. 1087, 63 S.W.2d 998 (banc 1933); State v. Smith, 240 S.W.2d 671 (Mo.1951); Missouri Bar Committee Comments on Missouri Approved Criminal Instructions, Self-Defense, III Imperfect Self-Defense, pp. 77-89, by Judge Orville Richardson.

The shooting took place in Threaded Needle Tavern, in Kinloch, a tavern frequented 'by blacks. Herman Hudson, Jr., a black patron, had the barmaid call a taxicab. When the cab driver (a large white man named Robert McGuire) arrived he entered the tavern and joined Hudson at the bar to have a beer. Appellant, a black person, seated on a stool at the end of the bar, observing McGuire’s entrance, made a statement, loud enough to be heard by several people in the bar. There were various versions of exactly what appellant said. According to appellant, he said to the customer sitting next to him, “That white hunky [sic, “honky”?] must be crazy coming in this black bar like this. He would get killed in here.” Appellant testified he did not intend to offend anyone by the word “honky”; that most people where he worked were white and “we use that [word] on the job”; that he did not think it made any difference where it was used. The barmaid testified that appellant said to McGuire, “Don’t you know we don’t allow hunkies [sic] or white people in this neighborhood after dark?” The barmaid testified that McGuire made no response to the statement; that he “just laughed.” According to Hudson, appellant’s statement was: “What is this hunky [sic] doing in here?” According to McGuire, appellant’s statement was: “White boy, you’re in a black tavern, you ain’t got no business in here.”

Appellant testified that the following happened after the remark was made: Hudson walked to the place where appellant was seated and said, “I called the cab,” and thereupon struck appellant on the side of the head, knocking appellant’s glasses off, and causing him to fall off the bar stool. Hudson struck the first blow, before appellant had a chance to say a word. Appellant managed to get to his feet. A scuffle ensued. Appellant was struck several times and went down. Wilfred Smart (later shot and killed) entered the fight. Hudson and Smart kicked and stomped appellant, who pulled himself up from the floor twice, made for the front door of the tavern and started outside. Someone grabbed him by the sweater and pulled him back and the fight resumed. The tussle went all the way to the open space of the dance floor, where the “fight really got on.” Two or three people were beating appellant on the side of the head. He was kicked in the nose. His vision was affected. He sustained a broken nose and a broken toe. After the fight he was in a hospital for 10 days. Appellant was a special deputy and a licensed watchman. He was carrying a .38 calibre pistol loaded with six magnum bullets. He had a permit to carry this weapon. Toward the end of the fight Smart tackled appellant from the front, about the belt line, “like a football player.” Dazed from the kick he received in the head, appellant managed to get his pistol out of the holster and that is when the gun went off. The gun discharged 3 times. Smart was wounded three times and died from gunshot wounds. When the fight began and as appellant was fighting with Smart in the lounge area, appellant was in fear of being beat up or killed.

Hudson’s version: When McGuire entered the tavern appellant “started messing with him.” By “messing with him” he meant “calling him names.” Asked what appellant said, Hudson answered that he said, “What is this hunky [sic] doing in here?” Hudson, who was about three bar stools distant from appellant told appellant that he, Hudson, had called the cab and “it don’t make no sense to mess with him.” Appellant said, “Well, are you upholding for him?” They got to arguing. Hudson walked around “to where he was at” and hit appellant with his fist on the side of the jaw. Hudson admitted he struck the first blow. After that they fought, using their fists. Hudson was “punching.” After the fight had continued for a while Hudson “let him go.” Appellant grabbed Hudson and Hudson grabbed appellant, who called out to “another fellow” to bring him a pistol. When the other fellow did not do so appellant left the tavern, went to his car, leaned over the front seat on the driver’s side, got a pistol, turned around, fired it into the air while yet on the outside of the tavern, then reentered the tavern, looking for his assailants. People scattered and ran out of the tavern. Wilfred was down on his knees, hiding under a table. Hudson was hiding in a corner, lying on the floor. Appellant walked over to the table where Wilfred was down on his knees, referred to Smart in vulgar language and “shot down” at Smart while Smart was still on his knees. Hudson heard four shots inside the tavern.

According to the barmaid, Smart was on his knees, begging appellant not to shoot him but not touching appellant, when appellant discharged the pistol at Smart.

In general and indefinite language, without specifying how or in what way, appellant evidently contends that he provoked the difficulty which ultimately resulted in the homicidal act. By use of a quotation from State v. Bailey, 190 Mo. 257, 88 S.W. 733, 745 (1905), he implies that he committed the original wrong or assault. Appellant says, “The evidence as recited in the Statement of Facts displays at minimum the possibility of the issue of imperfect self-defense.” From a quotation from State v. Dollarhide, 333 Mo. 1097, 63 S.W.2d 998 (banc 1933), he would draw an inference that he brought on or voluntarily entered into the fight or difficulty.

The evidence does not support that implication or contention. Appellant made a statement to or concerning the cab driver. Hudson, taking umbrage at appellant’s remark, initiated the action which followed: either an argument that lasted several minutes, or an immediate and unprovoked assault upon appellant. The fist fight between appellant and Hudson was precipitated by Hudson striking the first blow. Without any previous exchange of any kind between appellant and Wilfred Smart the latter entered the fight between appellant and Hudson. In the course of the fight between appellant on one side and Hudson and Smart on the other Smart kicked, stomped and tackled appellant who, in fear of his life, shot and killed Smart. In these circumstances appellant was not entitled to an instruction submitting the imperfect right of self-defense because he was not the wrongdoer or aggressor and there was no showing that appellant entered into the fight entertaining any unlawful purpose or that he brought on or provoked the difficulty between him and the victim of the homicide. The reduction in grade of offense from murder to manslaughter is reserved for those guilty of original sin . those who provoke or bring on the difficulty or enter into the combat unlawfully or wrongfully. Appellant fails to qualify in these respects. Under appellant’s testimony the only untoward thing he did was to make the “honky” remark, a racially oriented remark or reproach, addressing it to or concerning a white man for entering a black man’s tavern. Appellant’s remark was uncalled for, unfortunate, indiscreet, and could be considered provocative from the viewpoint of the cab driver, but however it may be characterized the remark was not wrongful or unlawful and there is nothing to indicate that it was uttered with intent to cause trouble of any kind with Hudson, or with Smart. Appellant had a right to say what he said in the exercise of his right of free speech, however impolitic or even foolish it may have been, with the attendant risk of insulting the cab driver. The cab driver, however, laughed and did not take the remark seriously. He left the tavern as soon as trouble started. The fight that followed upon the heels of appellant’s “honky” remark was a fight between appellant and Hudson and did not involve Smart, the victim of the homicide, in any way until Smart injected himself into the fight. Appellant said nothing to Smart at any time, as far as this record shows, until just before the shooting when, according to state witnesses, he referred to Smart vulgarly. Appellant’s “honky” remark did not provoke the difficulty between appellant and Smart. By the time Smart intervened and became a combatant the effect of appellant’s racial slur against the cab driver had long since been dissipated. Appellant’s “honky” remark, remote from the homicide, has no bearing on the question of imperfect self-defense.

Recapitulating, appellant was not in the wrong and was doing nothing unlawful at the commencement of the sequence of events eventually leading to the homicide. Appellant did not start the fight. The physical violence commenced when Hudson, the aggressor, struck the first blow. Hudson’s aggression (not that of appellant or of the victim of the homicide) started the melee. After the fight had been in progress for a period of time Smart, according to appellant’s testimony, entered the conflict on Hudson’s side, kicking, beating and stomping appellant and finally tackling him, immediately before the fatal shots were fired, all the while putting appellant in fear of being beaten or of losing his life. There is nothing in this version of the facts entitling appellant to reduction of the grade of the homicide from murder to manslaughter. Appellant’s act of killing Smart was either murder or justifiable homicide and the jury was properly so instructed.

Two color photographs of deceased’s body, taken at the morgue, were marked as exhibits and admitted in evidence over the objection of appellant. They show the physiognomy of deceased, the clothing he was wearing and blood, cuts and marks on the face. One photograph shows what appears to be a bullet wound, or point of entry of a bullet, in the hairline above the right part of the forehead. While graphic, the exhibits are not gruesome in any prejudicial sense. They were properly admitted in evidence (1) for the purpose of identification; (2) to corroborate testimony that appellant “shot down” at deceased while the latter was on his knees, and (3) that the fight was a violent affair.

Affirmed.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.


author: PER CURIAM:

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerry Don WALTMAN, Sr., Defendant-Appellant.
    No. 10317.
    Missouri Court of Appeals, Springfield District.
    Sept. 9, 1977.

      John D. Ashcroft, Atty. Gen., Jefferson City, Preston Dean, Frank J. Murphy, Jefferson City, for plaintiff-respondent.
    John L. Woodward, Steelville, J. D. Rohrer, Steelville, for defendant-appellant.
   PER CURIAM:

This case was transferred to the court en banc upon the question of the propriety vel non of invoking the plain error rule. Rule 27.20(c), V.A.M.R. We adopt in to to the opinion written by Special Judge George Henry, as follows:

“Defendant was tried on December 29, 1975, in the Circuit Court of Crawford County, the information charging an act of incest (fornication) occurring on November 23, 1974, with (prosecutrix), the sixteen-year-old daughter of defendant. The jury found the defendant guilty of incest but failed to agree upon punishment. On January 28, 1976 (thirty days following the verdict) a motion for new trial was filed. On March 19, 1976, the motion for new trial was overruled and the defendant was sentenced by the court to the State Department of Corrections for a period of seven years. Rule 27.03, V.A.M.R. Defendant appealed.

“Defendant’s brief relied on two points, the second being that the court erred in admitting the statement given by defendant. The requirements of Rule 27.-20(a) relating to the time for filing a motion for new trial have been held to be mandatory and a motion filed beyond the time is a nullity. State v. Maddox, 549 S.W.2d 931, 932 (Mo.App.1977). The record does not reflect that the defendant requested or was granted an extension of time. Defendant filed his motion for new trial thirty days after the verdict was returned and twenty days out of time. This point will not be reviewed.

“The remaining point raised in defendant’s brief is that of plain error affecting substantial rights resulting in manifest injustice or miscarriage of justice. This issue, although not preserved by timely filing of a motion for new trial, may be reviewed under Rule 27.20(c), V.A.M.R.

“The evidence in chief was fairly well confined to testimony concerning sexual acts between the defendant and the prose-cutrix or between the defendant, prosecu-trix and her fifteen-year-old sister, prosecu-trix usually having been also involved on each occasion when the 15-year-old was involved. Objectionable references, testified to without objection, came in questions or responses referring to sexual relations between defendant and ‘children’ or ‘daughters’ or ‘the girls.’ Cross-examination of the defendant included a long series of questions concerning an alleged rape of the 15-year-old by defendant some six to eight years prior to the act charged. Objection was finally made by defense counsel and sustained by the court. The court’s ruling was then reversed when the prosecuting attorney stated he was laying groundwork for impeachment.

“On rebuttal by the state, the wife of the defendant testified under cross-examination to accusations of sexual acts unrelated to the act for which defendant was being tried. These accusations were: (1) the 15-year-old accused defendant of having sexual relations with her; (2) the 15-year-old accused defendant’s father of having sexual relations with her; (3) another, younger, sister of prosecutrix accused defendant’s brothers of having sexual relations with ‘the children’ (the Waltman sisters); (4) the youngest sister also accused defendant’s brother of ‘molesting’ her; and the wife suggested that defendant was guilty of an act of sodomy with one of the couple’s sons.

“Also on rebuttal, prosecutrix testified in detail both on direct questioning and cross-examination about the alleged rape of the 15-year-old by defendant. Defense counsel made one objection after some forty questions dealing with the rape of the 15-year-old.

“Defendant put on rebuttal followed by surrebuttal by the state in which the aforementioned son testified to several acts of sodomy upon him by the defendant; the youngest sister testified to having had intercourse with her grandfather about ten times and to having been molested by defendant’s brother; the 15-year-old testified to having had sexual relations with defendant’s father.

“This court in the case of State v. McElroy, 518 S.W.2d 459 (Mo.App.1975), reviewed at length cases involving the admission of testimony of crimes separate and distinct from the one charged. The conclusion reached in McElroy is determinative of the issue here. In McElroy this court reiterated the rule that ‘proof of the commission of separate and distinct crimes generally is not admissible unless proof thereof has a legitimate tendency to establish the defendant’s guilt of the particular charge for which he is on trial.’ In that ease, this court reviewed the exceptions which would permit evidence of other offenses to prove the specific crime charged. The only exception remotely applicable in this case would have been for the purpose of showing ‘a common plan or scheme embracing the commission of two or more crimes so related one to another that proof of one tends to establish the other.’

“The effect of testimony of separate and distinct acts by the defendant, the defendant’s father and the defendant’s brother with persons other than the prosecutrix, could only have added to the prejudices naturally created by the sordid evidence properly received. Such evidence was highly prejudicial and constituted reversible error for which the judgment is reversed and the cause remanded.”

All concur.


author: HARBISON, Justice.

text:
    Russell E. JOSE, Appellant, v. EQUIFAX, INC., Appellee.
    Supreme Court of Tennessee.
    Oct. 3, 1977.
    J. Gregory O’Connor, Bond, Carpenter & O’Connor, Knoxville, for appellant.
    Arthur G. Seymour, Jr., W. Kyle Carpenter, Knoxville, for appellee; Frantz, McConnell & Seymour, Knoxville, of counsel.
   OPINION

HARBISON, Justice.

In this workmen’s compensation case the employer’s motion to dismiss for failure to state a claim was sustained by the trial judge. The allegations of the complaint are quite brief and are very general in their nature. The record does not indicate that any attempt was made to amend them, either before or after the employer’s motion was ruled upon.

The complaint alleges an employer-employee relationship under the workmen’s compensation law, notice to the employer, and an entitlement to disability benefits together with medical and hospital expenses. The factual allegations upon which recovery is claimed, however, are contained entirely in the following paragraph:

“That up until approximately May, 1976, Plaintiff was employed by Defendant as a Claims Director and Field Representative for many years. That in those capacities Plaintiff alleges that he was exposed to a tremendous amount of pressure and tension in order to meet the obligations placed upon him as an employee of the Defendant. That as a result of the pressures and tensions of his work Plaintiff alleges that he sustained a severe psychiatric illness. That furthermore, to alleviate his psychiatric problems the Plaintiff developed an habitual alcoholic problem. That furthermore, as a result of his illnesses, Plaintiff was treated at the Peninsula Center Psychiatric Hospital on several occasions.”

There is no delineation of the duties which the employee was required to perform, nor of the nature of the “psychiatric illness” alleged.

Predicated upon these general and conclusory allegations, which were not amended in the face of a motion challenging their legal sufficiency, the employee, appellant here, asks this Court to hold as a matter of law that a claim for workmen’s compensation benefits has been stated. This we are not prepared to do.

In support of his assignments of error, appellant has cited a lengthy article dealing with mental and nervous injury in workmen’s compensation cases written by Professor Arthur Larson, appearing at 23 Vand.L.Rev. 1243 (1970). The Court is urged to hold that a mental stimulus causing nervous injury is sufficient to allow workmen’s compensation benefits, and to leave to the trier of fact the matter of the sufficiency of medical evidence and of causation.

This Court on several occasions has dealt with the question of mental illnesses, such as traumatic neurosis, in workmen’s compensation cases. In the case of Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760 (1968), the Court dealt with a claim that anxiety and worry over job termination caused or precipitated an employee’s fatal heart attack. The Court found the medical evidence insufficient to sustain the allegations. It also found the stress or worry involved was that usual to the termination of any temporary employment and not unique to the particular job.

In the case of Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39 (1952), an award of total and permanent disability was allowed as a result of traumatic neurosis. In that case the employee was struck by a vehicle and sustained some injury, including a slight laceration, to his neck. There were no broken bones, however, and no evidence of any other serious physical injury. Nevertheless from conflicting medical testimony, the Court concluded that there was sufficient evidence to establish the authenticity of the traumatic neurosis and its permanence. See also Pocahontas Fuel Co. v. Orick, 218 Tenn. 514, 404 S.W.2d 500 (1966); McKenzie v. Campbell and Dann Mfg. Co., 209 Tenn. 475, 354 S.W.2d 440 (1962). In the case of Minton v. Leonard, 219 Tenn. 642, 412 S.W.2d 886 (1967) the Court recognized that there could be recovery for traumatic neurosis resulting from a back injury, but a new trial was ordered because of insufficiency of the testimony as to whether the condition was permanent. In the case of Gluck Brothers, Inc. v. Pollard, 221 Tenn. 383, 426 S.W.2d 763 (1968) the employee suffered mental illness diagnosed as chronic undifferentiated schizophrenia. The Court found sufficient evidence of a causal connection between this condition and an industrial accident to justify a total permanent disability award. In that case the employee had sustained slight physical injuries; he was mentally retarded and possessed a schizoid personality “which grew into a fullblown psychosis as a result of the trauma of the boiler accident and the subsequent psychological headaches . . . 221 Tenn. at 387, 426 S.W.2d at 765.

The foregoing does not purport to be an exhaustive analysis of all Tennessee cases which have dealt with the subject of mental or nervous illness in workmen’s compensation cases. It is clear that such disorders are compensable when shown to be caused by an industrial, work-related accident.

In the article above referred to, Professor Larson indicates that courts have not hesitated to allow compensation benefits for mental or nervous conditions where some “physical” or traumatic injury was proved, but that there has been a reluctance to permit recovery where only a “mental” stimulus occurring on the job caused the alleged mental or nervous illness.

This Court is not inclined to limit recovery to cases involving physical, traumatic injury or to impose any other artificial limitation upon the coverage afforded by the compensation statutes. In proper cases, we are of the opinion that a mental stimulus, such as fright, shock or even excessive, unexpected anxiety could amount to an “accident” sufficient to justify an award for a resulting mental or nervous disorder. It must be recalled, however, that the Tennessee statute, unlike the statutes of several other states mentioned in the Larson article, confines recovery to “injury by accident arising out of and in the course of employment.” At the time when the present complaint was filed, the statute covered only certain named or listed occupational diseases. These diseases were included within the terms “injury” and “personal injury” by amendment to T.C.A. § 50-902(d), but without such inclusion, occupational diseases or illnesses would not have been covered.

The Tennessee cases are clear that recovery is not permitted, under existing statutes, for the natural processes of aging or progression of unscheduled diseases. Kroger Co. v. Johnson, 221 Tenn. 649, 430 S.W.2d 130 (1967); Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760 (1968). A liberal interpretation has been given to the statutory criterion of “injury by accident,” St. Paul Ins. Co. v. Waller, 524 S.W.2d 478 (Tenn.1975); Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65 (1961), but this still does not embrace every stress or strain of daily living or every undesirable experience encountered in carrying out the duties of a contract of employment. Workmen’s compensation coverage is not as broad as general, comprehensive health and accident insurance.

At best, giving appellant the benefit of the most liberal interpretation of the compensation law, the claim attempted to be stated here would be on the periphery of coverage provided by the statute. When challenged by motion to dismiss, it was incumbent upon appellant to state with some specificity and clarity what sort of “accidental injury” was being claimed. We do not hold as a matter of law that no such claim as is here attempted could ever be established, but we are of the opinion that nothing more than conclusions and generalities were stated here. Tested by a motion to dismiss, the complaint failed to allege an injury by accident arising out of and in the course of employment. Therefore, the trial judge correctly sustained the motion.

Judgment affirmed at the cost of appellant.

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


author: COOPER, Chief Justice.

text:
    Jack ROMINES and wife, Mildred G. Romines, Appellants, v. K & S ENGINEERING & CONTRACTING CO., INC., and C & Y Painting Co., Inc., Appellees.
    Supreme Court of Tennessee.
    Oct. 3, 1977.
    Sidney W. Gilreath, Robert E. Pryor, Knoxville, for appellants.
    H. Francis Stewart, Stewart, Estes & Donnell, Nashville, for K & S Engineering.
    Darryl G. Lowe Kennerly, Montgomery, Howard & Finley, Knoxville, for C & Y Painting Co.
   OPINION

COOPER, Chief Justice.

This appeal presents the question: When properly attacked by motion, can counterpart service of process be sustained where the only resident defendant was dismissed by the trial judge in ruling on motions filed preliminary to trial? We hold that it cannot.

For the purpose of this appeal, the record shows that Jack Romines was injured in an automobile accident that occurred in Rutherford County, Tennessee. Mr. Romines and his wife filed actions in Knox County, Tennessee, to recover damages resulting from the accident, naming as defendants the United States Gypsum Company, a Delaware Corporation with agent for service of process in Knox County, the K & S Engineering and Contracting Company, Inc., which is located in Wilson County, Tennessee, and C & Y Painting Company, Inc., which has its place of business in Lawrence County, Tennessee. Service of process was obtained upon the United States Gypsum Company in Knox County, with counterpart process running to Wilson County and Lawrence County for the other defendants.

A motion for summary judgment filed by the United States Gypsum Company was sustained. Motions to dismiss filed by the non-resident defendants then were sustained on the ground of “improper venue.”

Unless otherwise expressly provided for in special statutes, venue of a transitory action is in the county where the cause of action arose or in the county where the defendant resides or is found. T.C.A. § 20-401. On service of original process on a real and material defendant in a county having venue of a transitory action, defendants residing in counties other than the one where the cause of action was filed can be brought before the trial court by counterpart process. T.C.A. § 20-401; Isbell v. Strider, 192 Tenn. 685, 241 S.W.2d 828 (1951); Deaton v. Evans, 192 Tenn. 348, 241 S.W.2d 423 (1951). Where a transitory action is filed in a county other than the one where the cause of action arose, if service of original process is on a party that is not a real and material defendant, venue does not lie in the county where the action was commenced and the trial court is not able to acquire jurisdiction over the person of defendants summoned by counterpart process, in the face of a motion to dismiss the action for lack of venue. See Isbell v. Strider, supra.

The key then is: Was United States Gypsum Company a real and material defendant so as to locate venue and legitimate the service of counterpart process on the other defendants? Appellant insists that it was, since the action was filed in the bona fide belief that plaintiff had a cause of action against United States Gypsum and not with the fraudulent intention of depriving the non-resident defendants of their right to be sued in their own county or in the county where the cause of action arose. Appellees, on the other hand, insist that since, prior to trial, it was shown that plaintiff had no cause of action against United States Gypsum, United States Gypsum was not a real and material defendant.

We are of the opinion and hold that irrespective of the motive of a plaintiff in bringing an action against a resident defendant, if the action cannot survive motions made preliminary to trial, the resident defendant is not a real and material defendant for the purpose of locating venue or the acquisition of jurisdiction over non-resident defendants by counterpart process. This is in accord with the basic holding in Isbell v. Strider, 192 Tenn. 685, 241 S.W.2d 828 (1951). See also 77 Am.Jur.2d Venue § 34.

The action of the trial judge in dismissing the cause of action for lack of venue is affirmed. Costs incident to the appeal are adjudged against Jack Romines and Mildred G. Romines and their surety.

FONES, HENRY, BROCK and HARBISON, JJ., concur.

      . The State of Tennessee also was a party, but was dismissed on motion. The fact that the State was once a party has no bearing on the question at issue.


text:
    CLAIBORNE COUNTY BEER BOARD, Hubert Muncy, Chairman, and Bill Brooks, Secretary, Appellants, v. William Ray POORE and Wife, Kathy Poore, Appellees.
    Supreme Court of Tennessee.
    Oct. 3, 1977.
    James D. Estep, Jr., Tazewell, for appellants.
    William R. Stanifer, Tazewell, for appel-lees.
   OPINION

COOPER, Chief Justice.

This is an appeal from a decision of the Chancery Court of Claiborne County, ordering the appellants, the Claiborne County Beer Board, to issue an amended beer permit to the appellees, William and Kathy Poore.

In November, 1973, the appellees were granted a permit to sell packaged beer at their store, Bill & Kathy’s Superette. More recently, the appellees have constructed an addition to the store, in which they operate a small restaurant. On November 13, 1976, the appellees filed a petition with the appellant, asking that their license be amended to permit the sale of beer for on premises consumption at the restaurant. The Beer Board denied the petition, asserting that the sale of beer at that location would endanger the public health, safety, and morals of the County, and, furthermore, that the issuance of the amended permit had been objected to by Fred Chumley, the owner of a residential dwelling located within three hundred (300) feet of the restaurant. In 1975, the County had adopted a resolution pursuant to T.C.A. § 57-205 forbidding the sale of beer within three hundred (300) feet of a residence, provided that the owner of the residence entered a formal objection. The chancellor reversed the decision of the Board, holding that there was no evidence to support the Board’s finding that the sale of beer at the location in question would pose any hazard to the safety or morals of the County. He further held that the application could not be refused on the basis of Chumley’s objection, as the provision relied upon by the Board does not apply to locations where a license had been issued prior to the adoption of the implementing resolution. The Board has appealed his decision on both issues.

The pertinent portion of T.C.A. § 57-205 provides as follows:

Class A counties, by resolution of their county court, may forbid the sale of beer within three hundred (300) feet of a residential dwelling . . . provided the owner of the residential dwelling . objects to the issuance of such a permit or license. This provision . . . shall not apply to locations where beer permits or licenses have been issued prior to the date of adoption of such resolution by the county court. . . . [emphasis supplied]

The principal question presented is whether that clause of the cited statute making this provision inapplicable to “locations where beer permits have been issued prior to the date of adoption of such resolution by the County Court” renders the protest made to the issuance of the amended license ineffective. We concur with the chancellor’s decision that it does. The only construction that we can give the cited language is that it removes from the ambit of this provision any application or petition made with respect to a location where a permit had been issued prior to the adoption of such a resolution by the County Court. In the instant case, it is undisputed that the appellees had a license to sell beer at the location in question prior to the adoption of the resolution by the Claiborne County Court.

The appellants also contest the finding by the chancellor that the sale of beer at this location would not endanger the public health, safety, or morals of Claiborne County. In cases involving beer permits, there exists on appeal a presumption of the correctness of the findings of the trial judge. Those findings will not be disturbed on appeal unless the evidence preponderates against them. Coffman v. Hammer, 548 S.W.2d 310, 311 (Tenn.1977). We do not find that the evidence preponderates against the decision of the chancellor on this question.

The decree of the chancery court is affirmed. Costs will be taxed against the appellants.

FONES, HENRY, BROCK and HARBI-SON, JJ., concur.


author: RUSSELL, Judge.

text:
    Darnell BANKS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 16, 1977.
    Certiorari Denied by Supreme Court Sept. 26, 1977.

      Edwin C. Lenow, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, William E. Frulla, Joe B. Dailey, Asst. Attys. Gen., Memphis, for appellee.
   OPINION

RUSSELL, Judge.

Darnell Banks appeals his conviction for rape. Sentence was set at twenty years in the penitentiary. A total of eighteen errors have been assigned. A careful review of the record leads to our judgment that no reversible error was committed.

Five assignments of error question the legal sufficiency of the convicting evidence. The rape victim positively identified Banks as the man who broke into her apartment by way of the bedroom window at approximately 5:30 A. M. on September 13, 1975. She identified him at a line-up, and also in-court during the trial, and testified that her in-court identification was based upon her recollection of the man during the time of the rape, uninfluenced by her later view of him in the line-up. Her testimony was accredited by the jury, and sufficiently makes out the State’s case. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

Error is assigned upon the refusal of the trial judge to strike “alias Johnny Banks” from the indictment. The State attempted to prove that Banks had used the alias when talking with the police about another offense. Banks denied that he had ever used the alias, and suggested that the police must have misunderstood him.

We recognize the rule that where there is no proof of the use of an alias by an accused no alias should be set out upon the indictment. Mallicoat v. State, 539 S.W.2d 54 (Tenn.Cr.App.1976). Here, apparently the State made a good faith effort to prove the use of an alias and we hold any such error in this case to be harmless. See Mallicoat v. State, supra.

Banks questions the admissibility of the in-court identification by the victim, on the ground that it was tainted by the prior line-up. First, we hold that the evidence does not preponderate against the finding that the in-court identification was based upon the victim’s view of the rapist at the time of the crime. That being so it is not required for admitting the in-court identification that the line-up be free of suggestiveness. Daugherty v. State, 478 S.W.2d 921 (Tenn.Cr.App.1972). Secondly, the line-up identification was definite enough to be proper and admissible into evidence. Our Supreme Court set out criteria on this question in the recent case of Rippy v. State, 550 S.W.2d 636, filed May 2, 1977. This rape victim (1) had ample opportunity to get a close look at the rapist, (2) her description of the rapist given prior to the line-up was similar to his general description, (3) no other person or activity was present to distract her attention, (4) the line-up identification was certain and unequivocal, and (5) the line-up was conducted less than two weeks after the crime. The assignment is overruled.

Three assignments of error relate to evidence of a burglary which occurred in the same apartment complex three days prior to the rape in issue. The appellant allegedly committed this prior offense, but at the time of this trial he had not been indicted on that charge. Banks contends that under his pretrial discovery motion in this case that he is entitled to the fingerprint report from the burglarized premises, and to the police report containing the statements of eyewitnesses to that prior burglary. He also contends that testimony on the fingerprint analysis done in the burglary case should have been admitted to impeach the incriminating identification testimony of the eyewitness to the burglary. The appellant has raised no question as to the admissibility of this evidence of another crime, but wants the records and testimony admitted. He bases his demand for the fingerprint and full police reports upon the holding in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a case which forbids the prosecuting authority from suppressing exculpatory evidence. Here, Banks apparently knew about the records and their contents; and it further appears that the State did not have the records in its possession. We find no Brady violation here.

The third complaint relative to evidence of the prior burglary is that the evidence that fingerprints found at the burglarized apartment were not those of the appellant should have been admitted, upon the theory that such evidence impeached the testimony of the eyewitness who identified Banks. We hold that the trial judge did not abuse his discretion in this instance, because there was no evidence that the fingerprints were lifted from objects which the burglar touched. The evidence was not probative of the proposition for which it was offered. It was therefore irrelevant, and hence inadmissible, as the trial court correctly ruled.

The next alleged error is based upon a remark made by the prosecuting attorney in his closing jury argument, wherein he asked the jury if they thought the defendant would be sitting on the second row in the courtroom if he had passed the polygraph test (alluded to during the course of the trial, as hereinafter set out). The argument was objected to, the objection sustained, and the jury instructed not to consider the statement. The issue of the polygraph test was first opened by the defendant, who introduced evidence that the defendant took the test voluntarily. The polygraph results would have been admitted into evidence, but the State was unable to locate the person who administered the test to testify as to the results. Bank’s evidence that he had voluntarily taken a polygraph test probably left the impression with the jury that he had passed it. The State was apparently unable, at that time, to get the witness who could say that Banks failed the test, it being certainly unexpected that this normally incompetent proof would be needed. The frustration generated by this situation probably brought about the prosecuting attorney’s improper argument. In view of the entire record, including the prompt curative instructions, we hold that the argument does not require reversal. See Judge v. State, 539 S.W.2d 340 (Tenn.Cr.App.1976).

We cannot overrule a long line of Supreme Court cases by holding that the alibi instruction given to this jury was improper. Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768 (1966).

It is contended that the judge’s charge on setting the sentence was inherently misleading. The charge was that upon a finding of guilt of rape, the jury should sentence him to “imprisonment for life in the penitentiary or for a period of time not less than ten years”. The jury first returned a verdict setting the sentence at twenty to forty years. The judge again explained the determinate sentencing for rape, and the jury retired and subsequently returned a verdict setting the sentence at twenty years. The assignment is without merit.

The appellant contends that the court erred by failing to grant him a copy of the trial transcript prior to his motion for a new trial. He cites neither law nor fact in his brief, and makes no showing of how this alleged error prejudiced him upon appeal. We overrule the assignment. Rockett v. State, 475 S.W.2d 561 (Tenn.Cr.App.1975); Tennessee Supreme Court Rule 15.

Likewise without merit is the assignment of error based upon the allowance of twenty-eight days, rather than thirty, for the filing of the motion for a new trial. No prejudice is made to appear.

The complaint that a witness was permitted to testify as to statements made by the rape victim immediately after the crime is patently without merit, under long established law permitting the introduction of such hearsay. Phillips v. State, 28 Tenn. 246 (1848).

The final contention is that the appellant was entitled to slides or samples of the sperm for his experts to examine and determine the assailant’s blood type. This evidence was not shown to be in the possession of the State, nor was it introduced upon the trial. The rule of State v. Gaddis, 530 S.W.2d 64 (Tenn.1975) does not apply in that context.

Affirmed.

GALBREATH and DAUGHTREY, JJ., concur.


author: DAUGHTREY, Judge.

text:
    Charles R. RUSSELL, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 8, 1977.
    Certiorari Denied by Supreme Court Oct. 3, 1977.

      Larry B. Nolen, Athens, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Richard A. Fisher, Dist. Atty. Gen., Cleveland, for appellee.
   DAUGHTREY, Judge.

OPINION

The defendant-appellant, Charles R. Russell, was convicted of possessing a controlled substance with intent to sell, and sentenced to three to six years in the penitentiary. The trial court denied the defendant’s motion to have the sentence suspended and to be placed on probation. We affirm the conviction but reverse the decision as to the denial of probation and remand the ease for further proceedings on the motion for a suspended sentence.

The defendant and a companion were arrested for public drunkenness late one night in an isolated area of Athens, Tennessee. The police came upon the defendant in a phone booth and discerned from his demeanor and from the odor of alcohol on his breath that he was intoxicated. According to the arresting officers, the defendant attempted to flee when arrested, but went only a few yards before heeding their order to halt. Upon recapture, the officers searched the defendant and found two plastic baggies, one in each sock. One of the bags contained 2.8 grams of marijuana, the other 25.8 grams (or about 50 dosages) of phencyclidine (PGP), a Schedule III drug under the Tennessee Drug Control Act, T.C.A. § 52-1404 et seq. The defendant, testifying in his own behalf, attempted to explain the possession by saying that he had found the bag of PGP in the phone booth, did not know the nature of its contents, and put it in his sock because he had no pockets in either his shirt or trousers. He offered no explanation for the bag of marijuana in his other sock. From this evidence the jury was justified in finding the defendant guilty of possession with intent to sell, and the proof does not preponderate against the verdict, as it must if we are to reverse the conviction. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

The defendant was indicted only for the possession of the PGP, and not the 2.8 grams of marijuana. The trial court permitted the prosecution to introduce evidence of the marijuana possession, over defense objection. This proof was properly admitted. The fact that the defendant possessed two similar packets, containing two different drugs, one in each sock, was relevant to the determination which the jury had to make concerning the defendant’s intent, his guilty knowledge, and his credibility as a witness. We therefore overrule this assignment of error.

Together with his motion for a new trial, the defendant filed a motion for suspended sentence. While the usual procedure is to file a petition for probation, T.C.A. § 40-2901 requires only “application duly made.” In this case, since a hearing was held and the defendant permitted to put on proof in his behalf, we will consider the motion for suspended sentence as an “application duly made” for probation.

The record does not include a probation report, nor indicate that one was ordered. The proof presented by the defendant and not contested by the State shows that this was the defendant’s first offense, that he is married and the father of a young child, and that he was gainfully employed. The trial court overruled the motion and refused to suspend the sentence, saying in part:

With maybe one or two exceptions I have never interfered where a jury set the punishment. I have never felt like I had the right to unless clearly there was an injustice being done.

But the legislature has specifically given the trial court the right to grant probation. T.C.A. § 40-2901 provides that trial judges in criminal cases “are authorized and empowered to suspend the execution of sentence and place the defendant or defendants on probation. . . .” Therefore, the fact that the jury has set a sentence upon conviction, so long as the sentence does not exceed the limits of eligibility for probation under the statute, is not sufficient justification per se for denial of probation.

The only other stated reason for the court's ruling was that the defendant was thought by local law enforcement agents to be involved in drug trafficking, “because [the officers] say that Duke is” so involved, Duke being the defendant’s brother. However, there was no probation investigation and no resulting report, and no proof offered at the hearing. Thus, there is no evidence in the record to show that the defendant had committed any offense other than the one for which he was convicted. Indeed, the trial judge conceded that he did not know whether the information which had come to him (apparently ex parte from the prosecutor’s office) was correct, saying “. . . whether it is true or not, whether it is imaginative or whether it is true, I don’t know.” We think that when the hearing judge has reason to think that there is relevant information concerning the defendant’s suitability for probation, certainly the better practice is to order an investigation into the facts, prior to the court’s probation determination,

The issue of the discretion of the trial court in granting or denying probation has been the subject of much recent litigation. From these cases, a procedure has been developed for dealing with this question. To begin with, the trial court should order a probation report concerning the “circumstances of the offense, criminal record, social history, and present condition of the defendant.” T.C.A. § 40-2904. While the contents of the report are not necessarily available to the defendant, the report should be forwarded, under seal, to the appellate court for review. Stiller v. State, 516 S.W.2d 617 (Tenn.1974). The State’s role should be more than “detached neutrality,” i. e., the State has an obligation to support the cause of a meritorious petitioner. Franks v. State, 543 S.W.2d 613 (Tenn.Cr.App.1976); Stiller v. State, supra. If the application is denied, the trial court is obligated to set out fully the reasons motivating that denial, so that the appellate court can adequately review this discretionary determination. Mattino v. State, 539 S.W.2d 824 (Tenn.Cr.App.1976).

The record before us is devoid of any justifiable cause for denying the defendant’s application for suspended sentence. We order the case remanded for a new hearing on this issue, and a new determination of the merits of the motion, in accordance with the procedure outlined above.

GALBREATH, J., concurs.

SAM LEWIS, Special Judge, concurs in result.


author: McCLOUD, Chief Justice.

text:
    R. H. SEALE v. Robbie Seale CLICK.
    No. 5037.
    Court of Civil Appeals of Texas, Eastland.
    July 28, 1977.
    Rehearing Denied Oct. 13, 1977.
    Barry K. Bishop, Clark, Thomas, Winters & Shapiro, Austin, for appellant.
    Terrence Kendall, Randle, Finch & Osborn, Austin, for appellee.
   McCLOUD, Chief Justice.

This case involves the interpretation of an appellate court’s mandate limiting the remand of a case to a specific issue.

In a prior appeal, R. H. Seale sued Robbie Seale Click seeking specific performance of an option to purchase real estate. Click asserted coverture as a defense and also filed a cross action seeking damages for the wrongful detention and use of the property by Seale. Both parties moved for summary judgment. The trial court granted Seale’s motion. On appeal, the Austin Court of Civil Appeals in Click v. Seale, 519 S.W.2d 913 (Tex.Civ.App.1975, writ ref. n.r.e.) reversed the judgment of the trial court, granted Click’s motion for summary judgment, rendered judgment that Seale take nothing by his suit, and remanded the cause to the trial court for “trial only of the issue of (Click’s) damages pleaded by her cross action.” The opinion of the Austin Court of Civil Appeals contains a full discussion of the facts and issues involved in the original appeal and we will discuss only matters considered pertinent to this appeal.

After the case was remanded, plaintiff, Seale, amended his answer to Click’s cross action, and sought $300,000 for improvements made to the property, or alternatively, an “offset or credit” for the improvements against the “rent” damages claimed by Click. The trial court, in a nonjury trial, held that it was not authorized to consider evidence of improvements made by Seale under the limited mandate issued by the Austin Court of Civil Appeals. Seale perfected a bill of exception showing that he had made substantial improvements that greatly enhanced the value of the property. Based on evidence of the reasonable rental value of the property, the trial court entered judgment for Click for $55,000.

The trial court expressly found in its conclusions of law that Seale’s claim for improvements was not barred by the statute of limitations, res judicata, or law of the case, but was precluded solely by the limited mandate.

Click argues that because of the limited mandate and the take nothing judgment rendered against Seale by the Austin Court of Civil Appeals, Seale is precluded by the doctrine of res judicata from asserting any claim for improvements, either as a primary claim or a defense to Click’s claim for damages.

The limited mandate issued by the Austin Court of Civil Appeals in the first appeal states that the cause is remanded “to the district court for trial only of the issue of (Click’s) damages pleaded by her cross action.”

Seale contends he has been improperly denied an opportunity to litigate the issue of reimbursement for improvements. He asserts he “factually pleaded the improvements as a primary claim prior to the summary judgment proceeding.” In Seale’s first amended original petition, which was on file at the time he was granted a summary judgment in the trial court, he referred to improvements, but the reference was in connection with allegations that Click was estopped to deny the enforceability of the option, or alternatively, that Click had ratified the option contract. At the time the summary judgment was granted by the trial court, Seale’s answer to Click’s cross action for damages consisted of a general denial. There was no pleading affirmatively seeking reimbursement for improvements or an offset against Click’s demand for damages.

The effect of a limited remand was discussed in the recent case of Wall v. East Texas Teachers Credit Union, 549 S.W.2d 232 (Tex.Civ.App.-Texarkana 1977, writ ref’d), wherein the court said:

“. . . When the Supreme Court remands a case and limits a subsequent trial to a particular issue, as in this instance, the trial court is restricted to determination of that particular issue. McConnell v. Wall, 67 Tex. 352, 5 S.W. 681 (1887); Humble Oil & Refining Co. v. Kishi, 299 S.W. 687 (Tex.Civ.App. Beaumont 1927, writ ref’d); 4 Tex.Jur.2d, Rev., Part 2, Appeal and Error — Civil Cases, Sec. 979 . . .”

In interpreting the mandate of an appellate court, we should look not only to the mandate itself, but also to the opinion of the court. Wells v. Littlefield, 62 Tex. 28 (1884). When Seale’s motion for summary judgment was granted, he had no alternative plea seeking reimbursement for improvements in the event the option was held to be unenforceable. The Austin Court of Civil Appeals, therefore, did not discuss the matter of improvements.

Click argues that if Seale’s reference to improvements in his first amended original answer constituted an affirmative plea for improvements then the issue was decided against Seale when the take nothing judgment rendered by the Austin Court of Civil Appeals became final. She says further that if the allegation failed as a plea for improvements then Seale was precluded from asserting any claim for improvements on the remand because his plea was a compulsory counterclaim under Rule 97, T.R. C.P., and had to be asserted prior to the granting of the take nothing summary judgment in favor of Click.

First, we note that the trial court expressly concluded that Seale’s claim for improvements was not precluded by res ju-dicata. Click has no cross-points attacking that conclusion. We think, however, even if proper cross-points were filed, the doctrine of res judicata would not prevent Seale’s claim because the issue of damages sustained by Click was remanded and Seale could file his compulsory counterclaim, as he did, before that issue was decided.

The case was expressly remanded, however, for the purpose only of determining Click’s damages, if any, resulting from Seale’s wrongful detention and use of the property. We think the limited language contained in the mandate does prevent Seale from establishing his “affirmative claim for improvements”. We do not think, however, the mandate prevents Seale from asserting as a defense an “offset” against Click’s claim for damages. Seale’s claim for improvements arose out of the transaction or occurrence that was the subject matter of Click’s cross action. Such claim could be asserted as a defense to Click’s cross action for damages. Nalle v. Harrell, 118 Tex. 149, 12 S.W.2d 550 (1929); Christian v. First National Bank of Weatherford, 531 S.W.2d 832 (Tex.Civ.App.-Fort Worth 1975, writ ref. n.r.e.).

Dick Matz Agency v. Storey, 542 S.W.2d 116 (Tex.1976) and O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex.1976) cited by Seale are distinguishable. In Dick Matz Agency, the judgment of the court of civil appeals was clarified by the Supreme Court on application for writ of error. In O’Neil, the mandate was recalled. In the instant case, the limited remand by the Austin Court of Civil Appeals was not modified by the Supreme Court on application for writ of error, nor was the mandate recalled.

The judgment of the trial court is reversed and the cause is remanded for trial of the issue of Click’s damages, if any, resulting from Seale’s wrongful detention and use of the property, and Seale’s defenses, if any, to Click’s alleged damages.


author: WARD, Justice.

text:
    John Perry MILLER et ux., Appellants, v. Charles L. SCHUMAN, d/b/a Bonanza Mobile Homes Subdivision, Appellee.
    No. 6601.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 24, 1977.
    Rehearing Denied Sept. 14, 1977.

      Schwartz & Earp, Robert D. Earp, El Paso, for appellants.
    Edward C. Hughes, El Paso, for appellee.
   OPINION

WARD, Justice.

This suit was filed by the Plaintiffs under the terms of Section 27.01, Tex.Bus. & Comm.Code Ann., to recover their alleged actual and exemplary damages sustained in their purchase of a mobile home lot. The trial Court granted the Defendant’s motion for an instructed verdict when the Plaintiffs rested. We affirm.

The Plaintiffs, John Perry Miller and wife, Lola N. Miller, purchased the mobile home lot in November, 1971, from Charles L. Schuman, d/b/a Bonanza Mobile Homes Subdivision. Their trial pleadings alleged that prior to the purchase, the Defendant’s agent had falsely represented that the Subdivision had good water; that this representation was false as the water was not potable and was substandard and in violation of the State Health Department’s standards for potability; that the Defendant’s agent had further falsely represented to them that the Defendant would supply as much water as would be needed to the lot for a standard monthly fee for as long as the Plaintiffs owned the lot; and that the value of the lot as represented was $4,227.00, and actually was virtually worthless due to the poor quality of the water and the secret intention of the Defendant to discontinue the water service. They sued for their actual damages in the amount of $4,227.00 and for their exemplary damages under the Statute not to exceed twice the amount of the actual damages.

The directed verdict presents the no evidence point and the rules for our appellate review are well summarized in Campbell v. Booth, 526 S.W.2d 167 (Tex.Civ.App. — Dallas 1975, writ ref’d n.r.e.). We will accept as true the evidence in the record supporting the Appellant’s allegations both of fraud and damages, and will disregard all evidence to the contrary. That case points out that the Courts allow a wide latitude in determining the issue of fraud which can be deducible from artifice and concealment, as well as from affirmative conduct. Even under those prescribed rules, the defects in the evidence in this case are obvious.

The Plaintiffs, on November 1, 1970, went to the mobile home Subdivision to secure a rental lot. The available water came from two wells located on the Subdivision. In inquiring of a rental lot, one of the Defendant’s salesmen, a Mr. John Knopp, referred them to a lot which was owned by a Mrs. Ludy. They inquired of Mr. Knopp as to the water, and he told them that the water was good for the two years that he had been there. The Plaintiffs then rented the mobile home lot from Mrs. Ludy for a period of some eleven months. In September, 1971, they ascertained that the lot directly across from theirs was available for sale due to the death of one of the owners. They contacted the widow, but due to the estate problems involved were unable to purchase the lot directly from her. In securing the necessary conveyance, it was necessary for the Defendant to foreclose on the deed of trust securing the note on the lot owned by the decedent and the widow. Thereafter, the Defendant was able to convey the lot to the Plaintiffs. Admittedly, no oral representations regarding the water were made to the Plaintiffs at that time. However, at that time, the Plaintiffs did know of advertisements indicating that the water from the wells in the Subdivision would be available to the lot owners for a fixed monthly fee. In addition, at the time of the original leasing, Knopp had stated to the Plaintiffs that they could have all the water they wanted for a flat rate fee a month. After the sale, the Plaintiffs became aware that representatives of the State Health Department had complained to the Defendant that the drinking water at the Subdivision was substandard. At no time before the sale had the Defendant ever disclosed that he was receiving these complaints.

As to the purchase of the lot, the Plaintiffs’ evidence was that they bought the lot in November, 1971, at the price of $4,227.00, and in January, 1974, they sold the lot for $3,250.00.

The Plaintiffs argue that the representation regarding the good water made by Knopp was imputable to the Defendant as Knopp was his regular salesman and the Defendant eventually benefited from the representation because of the purchase that was made of the lot a year later. The argument ignores the admission made by the Plaintiffs in their testimony that Knopp was acting for Mrs. Ludy at the time of the rental agreement and that they knew that he was not acting for the Defendant.

Regarding the representation that water would be furnished by the Subdivision owner to the lot owner, there was testimony that the Defendant wanted to cut the water supply off and let the lot owners purchase their water from the City of El Paso. This so-called threat was later withdrawn, the water was not cut off, and the Plaintiffs were assured that they would be furnished water as long as they owned their lot.

As to the claim of the Plaintiffs that the water was not potable, the only evidence offered by the Plaintiffs was from a representative of the State Health Department who admitted that there were no Health Department standards regarding potability, and that the water, though undesirable, was potable at all times. He did criticize the water as containing excessive amounts of sulphate and chloride solids over amounts which the Health Department recommended. In summary, he testified that the water met all bacteriological standards regarding coloform organisms; that the excessive amounts of the chemicals made the water undesirable, but that it was not unfit; and that the water was potable.

Finally, there was no proof under either the statutory or common law measure of damages by which the trial Court could have rendered a judgment in favor of the Plaintiffs. The common law or “out of pocket” rule for damages recoverable by a defrauded purchaser of property was the difference between the value of that which he parted with and the value of that which he received under the agreement. The more liberal measure was designed to allow the victim the “benefit of the bargain” and is now codified as Section 27.01(b), Tex.Bus. & Comm.Code Ann. There, the measure is the difference between the value of the real estate as represented and its actual value in the condition in which it was delivered at the time of the contract. No evidence was offered as to the value of the real estate which the Plaintiffs purchased, nor to the value of the real estate as represented, nor as to the value at the time it was delivered. Special damages were neither alleged nor proven. There was no basis in law by which the trial Court could have rendered a judgment for the Plaintiffs. Frey v. Martin, 469 S.W.2d 316 (Tex.Civ.App. — Dallas 1971, writ ref’d n.r.e.).

The judgment of the trial Court is affirmed.


author: McDONALD, Chief Justice.

text:
    KANDY, INC., Appellant, v. Sarah PRESSLOR, Independent Executrix of the Estate of Richard Presslor, Appellee.
    No. 5753.
    Court of Civil Appeals of Texas, Waco.
    Aug. 25, 1977.
    Rehearing Denied Oct. 6, 1977.

      John D. Raffaelli, Raffaelli & Hawkins, Texarkana, for appellant.
    Robert Harms Bliss, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Kandy, Inc. from judgment for plaintiff Presslor for $16,943 plus $1500 attorneys’ fees; and further decreeing defendant take nothing against plaintiff on its counterclaim.

Plaintiff Dick Presslor sued defendant on a sworn account for forming equipment rented, ties sold, and items not returned, in a total amount of $16,943 plus reasonable attorneys’ fees. Defendant answered by general denial and counterclaimed for amounts allegedly due defendant from plaintiff.

The trial court granted interlocutory summary judgment for plaintiff on the sworn account for $16,943 plus $1500 attorneys’ fees; and tried defendant’s counterclaim to a jury. The jury by its answer to Issue 1 returned a take-nothing verdict on such counterclaim.

The trial court rendered final judgment for plaintiff for $16,943 plus $1500 attorneys’ fees, and further decreed defendant take nothing on its counterclaim.

Defendant appeals on 7 points contending among other matters:

The finding of the jury to Issue 1 is so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

The record reflects plaintiff agreed with defendant to furnish all forms required for the construction of the 10 Mile Creek Project for $15,000; that some of the forms furnished were rejected by the engineer on the job; that plaintiff did not have sufficient forms to replace those rejected; that plaintiff agreed with defendant that defendant rent forms from Symons and pay for same, and that the amounts so paid would be deducted from amounts due plaintiff; and that defendant paid Symons some $20,869 for additional forms.

The trial court submitted Issue 1 to the jury inquiring: “What do you find from a preponderance of the evidence was the reasonable cost of the rentals paid by Kandy, Inc. to Symons Mfg. Company for the additional forms required for the 10 Mile Creek Project?” The jury answered: “-0-”.

We think such answer so contrary to the great weight and preponderance of the evidence as to be clearly wrong. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Defendant’s Contention is sustained.

The judgment based on such finding in answer to Issue 1 is in error.

Plaintiff by Crosspoint 1 asserts the trial court erred in admitting testimony of Frank King concerning his oral agreement with Presslor, contending such barred by the Dead Man’s Statute (Art. 3716).

Plaintiff took King’s deposition but did not introduce it in evidence. When the testimony of a witness who would otherwise be incompetent to testify regarding the matters covered by Art. 3716 is taken by deposition and the “opposite party” initiated an inquiry relative to a transaction with the decedent, the statute is waived and the witness may testify fully regarding such transaction, whether or not the deposition be offered in evidence. Allen v. Pollard, 109 Tex. 536, 212 S.W. 468; Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801. Crosspoint 1 is overruled, as is Crosspoint 2 which is immaterial in view of our disposition.

We reverse the judgment and remand the case in the interest of justice. Accordingly the case is remanded to the trial court in its entirety, so that the parties may, if they wish, amend, and try plaintiff’s cause of action and defendant’s counterclaim together. Morrow v. Shotwell, S.Ct., 477 S.W.2d 538; Scott v. Liebman, S.Ct., 404 S.W.2d 288; Adams v. Herd, Tex.Civ.App. (Waco) NWH, 526 S.W.2d 295.

REVERSED and REMANDED.

      . Presslor died and his widow Sarah Presslor, Independent Executrix of his estate was substituted as plaintiff.


author: ROBINSON, Justice.

text:
    INDUSTRIAL ACCIDENT BOARD, Second Injury Trust Fund and State of Texas, Appellants, v. Mary Zerne (Gafford) LANCE et al., Appellees.
    No. 8750.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 29, 1977.

      John L. Hill, Atty. Gen., Jimmy R. Weaver, Asst. Atty. Gen., Austin, for appellants.
    Michael D. Schattman, Jacobs & Taylor (Kelly Jacobs), Fort Worth, for appellees.
   ROBINSON, Justice.

In this workmen’s compensation suit, the trial court, sitting without a jury, found that plaintiffs, Mrs. Woodward and Mrs. Lance, were dependent children of the deceased workman and entered judgment against the defendant compensation carrier awarding plaintiffs death benefits and denying relief to the Second Injury Trust Fund which claimed the same death benefits claimed by plaintiffs. The Second Injury Trust Fund appealed contending that the admissible evidence was legally and factually insufficient to support express findings that the plaintiff daughters expected and relied upon and were dependent upon the support and assistance of the deceased workman to increase their standard of living. Affirmed.

The right of dependent children of the deceased employee to recover death benefits is to be determined by the facts as they exist at the time of the death of the deceased. Tex.Rev.Civ.Stat.Ann. art. 8306, § 8a. An adult dependent child is entitled to death benefits under the compensation act. Hartford Accident & Indemnity Co. v. Crowley, 509 S.W.2d 939 (Tex.Civ.App.-Waco 1974, writ ref’d n. r. e.). Further, a claimant who is partially dependent on the deceased workman for support is entitled to compensation. Aetna Casualty & Surety Company v. Cassavaugh, 486 S.W.2d 815 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref’d n. r. e.); Stanaland v. Traders & General Ins. Co., 145 Tex. 105, 195 S.W.2d 118 (1946); Lumbermen’s Reciprocal Ass’n v. Warner, 234 S.W. 545 (Tex.Civ.App.-Beaumont 1921) aff’d 245 S.W. 664 (Tex.Com.App.1922, jdgmt. adopted).

In Lumbermen’s Reciprocal the court stated the rule as follows:

. It is an accepted rule in compensation cases that partial dependency may exist although the alleged dependent could have subsisted without the labor of the employe, or is not without the necessities of life. The test is: Was the alleged beneficiary relying in whole or in part upon the labors of the deceased for support?

The evidence in the case before us shows small but regular cash contributions from the deceased to his married daughters, which continued over a period of several years and up to the time of his death. The contributions were used for regular living expenses. The evidence also shows gifts and isolated larger contributions when the daughters needed assistance in paying for such items as rent, tires, and a baby bed.

We overrule appellant’s contention that the trial court erred in admitting evidence of support, gifts, and contributions made by the deceased to his daughters prior to the year of his death. In Georgia Casualty Co. v. Campbell, 266 S.W. 854 (Tex.Civ.App.-Amarillo 1924, writ dism’d), this court rejected a similar argument stating:

The propositions might be correct when applied to a case where dependency had existed, but had ceased at the time of the death of the employe. If Miss Campbell and Mrs. Michael, at the time of their brother’s death had ceased to be dependent upon him, the testimony tending to prove former dependency would be wholly inadmissible. But where the dependency is shown to have existed, testimony of a continued dependency is certainly admissible. The Legislature never intended to limit the proof of dependency to a time shortly before or at the time of death of the deceased, and evidence showing continued dependency up to the time of the death of the deceased is admissible.

The trial judge found that Mrs. Lance and Mrs. Woodward were dependent children of the deceased workman within the meaning of Art. 8306 § 8a (1971). It is fundamental that in a case tried before the court without a jury, the court sits as a trier of fact as well as law and stands in the same relation to the factual aspect of the case as does a jury when one is had. He is the judge of the credibility of witnesses and the weight to be given their testimony, and his findings are entitled to the same weight and conclusiveness on appeal as the verdict of a jury. Republic Casualty Co. v. Obregon, 290 S.W.2d 267 (Tex.Civ.App.-Waco 1956, writ ref’d n. r. e.).

We have considered the evidence in the light most favorable to the trial judge’s findings, disregarding all evidence to the contrary and we conclude that those findings are supported by some evidence of a probative value.

We will not detail here all of the evidence adduced. We have, however, also considered all of the evidence and, after doing so, do not find that the findings are supported by insufficient evidence or are so against the great weight and preponderance of the evidence as to be manifestly unjust.

Each of appellant’s points of error is overruled. The judgment of the trial court is affirmed.


author: DUNAGAN, Justice.

text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY and/or New York Underwriters Insurance Company, Appellant, v. Leonard T. LUCAS, Appellee.
    No. 989.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 1, 1977.
    William D. Perkins, Lufkin, for appellant.
    F. P. Granberry, Granberry & Hines, Crockett, for appellee.
   DUNAGAN, Justice.

This is a workmen’s compensation case wherein the trial court rendered and entered a judgment on the jury verdict awarding appellee total and permanent disability benefits as the result of an injury received while in appellant’s employment. We have heretofore held in this case that there was no evidence of probative force to support the jury’s finding that the injury sustained was the producing cause of any total incapacity. 547 S.W.2d 386. The Supreme Court granted a writ of error and subsequently held that there was some evidence to support said finding of the jury and remanded the case so this court may pass on appellant’s points attacking the “insufficiency of the evidence” to support the verdict and that “the findings were against the great weight and preponderance of the evidence.” 552 S.W.2d 796.

In this case, the only evidence to support the jury’s affirmative finding to Special Issue No. 1 comes from Dr. Nathan W. Caldwell. It is, thus, our duty to “. consider only the evidence which supports the finding . . . ” to determine if “. . . the finding is so uncertain, inconsistent, improbable, or unbelievable that, although constituting some evidence of probable force when considered in its most favorable light in support of the finding, it would nevertheless be clearly unjust to permit the judgment to stand . . ..” Calvert, “Insufficient Evidence Points of Error”, 38 Texas L.Review 361, 367; See “The Question of Insufficient Evidence on Appeal”, 30 Texas L.Review 803; and In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952).

We so find.

Dr. Caldwell who testified on behalf of the appellee was the only medical witness. Essentially all the testimony as to the causal connection between the injury and the thrombophlebitis was given by Dr. Caldwell. Appellant did not offer any evidence. Dr. Caldwell’s testimony as to the causal connection between the injury in question and the thrombophlebitis, which allegedly was the producing cause of appellee’s total incapacity, is couched in such terms of “I think” or “I think probably”, “I thought”, “possible”, “who knows”, and “it can”.

The facts are set out more fully in opinions of this court in 547 S.W.2d 386 and the Supreme Court in 552 S.W.2d 796.

“We are well aware of the often cited rule that in workmen’s compensation cases, the Workmen’s Compensation Act will be liberally construed. Nevertheless, in a workmen’s compensation case, the same as in a negligence case or a malpractice case, the burden of proof remains on the plaintiff to prove his case by a preponderance of the evidence.” American Surety Company v. Semmons, 413 S.W.2d 732, 737 (Tex.Civ.App. — Tyler 1967; writ ref’d n. r. e.).

We have again carefully considered Dr. Caldwell’s testimony in its entirety, as well as the record as a whole, as we are required to do, and in our opinion the evidence is “factually insufficient” to support the jury’s answer to Special Issue No. I.

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

Reversed and remanded.

      . “SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that the injury sustained on or about August 24, 1974, was a producing cause of any total incapacity?
      “ANSWER: We do.”