text:
    Archer PARR, Appellant, v. Bonnie M. WHITE, Administratrix, Appellee.
    No. 1104.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 29, 1976.
    Rehearing Denied Nov. 24, 1976.

      Oscar Spitz, Corpus Christi, for appellant.
    A. J. Pope, III, Corpus Christi, for appel-lee.
   OPINION

NYE, Chief Justice.

This is a suit filed by appellee Bonnie M. White, Administratrix of the Estate of Jody Martin Parr, Deceased, to determine jurisdiction of the county court of law sitting in probate. This case comes to us by writ of error from an order of the County Court at Law Number 1 of Nueces County. This Court declared that the judgment of the 229th District Court of Duval County in Cause Number 8732 was not final and that the Nueces County Probate Court acquired sole and exclusive jurisdiction and venue over the parties and the subject matter in the Duval County Cause Number 8732 when Mrs. Parr died and the probate proceedings in the Estate of Jody Martin Parr were initiated. The appellant was the husband of the Decedent, Jody Martin Parr. The appellee Bonnie M. White is the sister of the Decedent.

This suit is a part of three years of litigation between the parties now before this Court. Three other separate decisions concerning some aspect of these parties’ property have been handed down this day. Although these particular cases are the first litigation between these parties to reach this Court, other matters arising out of similar litigation have been decided by the San Antonio Court of Civil Appeals and the Texas Supreme Court. A brief history of the state of this litigation which preceded this appeal is necessary to understand the question now before this Court.

On June 23, 1973, Jody Martin Parr filed suit for divorce from Archer Parr in the Court of Domestic Relations of Nueces County in Cause Number 118,573. On July 3, 1973, Archer Parr filed a separate suit for divorce from his wife, Jody Martin Parr, in the 229th District Court of Duval County in Cause Number 8705.

On August 4, 1973, the First State Bank of San Diego, Texas, filed Cause Number 8716 in the 229th District Court seeking judgment against Jody and Archer Parr on an alleged promissory note in the amount of $125,000.00. Pursuant to the suit by the First State Bank of San Diego and a similar suit filed by Alamo Lumber Company in Cause Number 8717, the Judge of the 229th District Court on August 4,1973, temporarily restrained the Parrs from proceeding in their divorce suits and from interfering with any of their assets. Then, on August 15, 1973, this Duval County trial judge ordered a receiver appointed to take charge of the separate and community property of the Parrs. On August 28, 1973, the same trial judge entered another order requiring both of the Parrs to account for and turn over to the receiver all their separate and community property. Jody Martin Parr appealed the order appointing the receiver. The Fourth Court of Civil Appeals reversed the trial court on February 27, 1974, and ordered the receivership closed after approval of the accounts of said receiver. See Parr v. First State Bank of San Diego, supra. The same Duval County trial judge also held Mrs. Parr in contempt of his order of August 28, 1973, and sentenced her to 150 days in jail. Mrs. Parr was subsequently released from jail by the Texas Supreme Court in a habeas corpus proceeding. See Ex Parte Parr, supra.

Meanwhile, on September 11, 1973, the receiver filed Cause Number 8732 in the 229th District Court. This suit sought to set aside certain allegedly fraudulent conveyances from Mrs. Parr to her sister, Bonnie M. White, the appellee herein. Shortly after the judgment of the Fourth Court of Civil Appeals (ordering the receivership closed) became final, the appellant Archer Parr was allowed to intervene in Cause Number 8732. That case was set for trial on June 3, 1974, and a judgment favoring intervenor Archer Parr was entered on June 7, 1974. This judgment dismissed the original receiver as a party plaintiff and ordered Archer Parr to be substituted as a party plaintiff. It was further ordered that the deeds, transfers and assignments of certain described community property made by Mrs. Parr to the appellee Bonnie M. White on August 2, 1973, be set aside. The court also ordered that said property be delivered to an attorney, Werner A. Gohmert, who had previously been appointed and qualified as a receiver in Cause Number 8705 which was the Duval County divorce proceeding. It was there ordered that the property be held by Mr. Gohmert pending the final disposition of the Duval divorce action Cause Number 8705.

On June 13, 1974, Mrs. Parr died. The status of the Duval County suits at this point was: Cause Number 8705, the divorce suit initiated by Archer Parr, was pending; receiver Werner A. Gohmert in Cause Number 8705 was ordered to hold community property which had been the subject of Cause Number 8732; and receiver Emilio Davila appointed in Cause Numbers 8716 and 8717 was dismissed as receiver.

On July 8, 1974, the appellee Bonnie M. White filed an application for probate of the Will of Mrs. Parr and for issuance of letters testamentary in County Court at Law Number 1 of Nueces County in Cause Number 19,757. On September 11, 1974, the judge of the probate court admitted Mrs. Parr’s Will to probate and appointed Bonnie M. White, the appellee as Adminis-tratrix of the Estate.

The record in this and the other three (3) related eases before us are voluminous. Although the appellant Archer Parr brings forward eleven (11) points of error to this Court, it is apparent to us that the controlling question is whether or not the trial court’s order sitting in probate was actually an appealable order and did it adjudicate a substantial right of the parties.

Appellant Archer Parr contends that the probate court’s order decreeing that upon the death of Jody Parr, the full and exclusive jurisdiction and venue over the community property of the Parrs became vested in the County Court at Law Number 1, Sitting in Probate was error.

The probate court held that the judgment in the Duval Receivership Cause Number 8732 was not final because it did not dispose of all the parties. This ruling by the Nuec-es County Probate Court was unnecessary and inconsequential. The judgment in Cause Number 8732 (the Duval County Receivership) was actually valid and final when determined by the Fourth Court of Civil Appeals (White, Administratrix v. Parr, supra.) and could not be collaterally attacked in the Nueces County Probate Court. It did not determine the ultimate disposition of the community property of the Parrs. It only determined the validity of the conveyances from Jody Parr to Bonnie M. White and who should hold the property pending a final judgment in the divorce case, Cause Number 8705. It was stated by the trial judge in the Duval Receivership case, (Cause Number 8732) that the community real and personal property of the Parrs was to be held by the receiver subject to further orders in the Duval County divorce action, Cause Number 8705. When Mrs. Parr died on June 13, 1974, Cause Number 8705 (the Duval divorce action) became moot. It was obvious that it was impossible for the 229th District Court of Duval County to grant any further affirmative relief sought by Archer Parr in the Duval County divorce action, Cause Number 8705.

An action for divorce is purely personal in nature and abates absolutely on the death of either party before judgment. Ex Parte Cahill, 286 S.W.2d 210 (Tex.Civ.App.-Beaumont 1955, no writ). The death of either party prior to entry of the divorce decree withdraws subject matter of the litigation from jurisdiction of the court. Thrash v. Cochran, 360 S.W.2d 587 (Tex.Civ.App.-San Antonio 1962, no writ); Blain v. Broussard, 99 S.W.2d 993 (Tex.Civ.App.-Beaumont 1936, no writ). See “Effect of death of party to divorce or annulment suit before final decree”, 158 A.L.R. 1205. In a divorce proceeding, the court has the power to issue decrees relative to property rights to settle claims between the parties and to make orders relative to the care and custody of the children. These powers, however, are merely incidental to the primary object of changing the status or relation of the parties and this power abates automatically upon the death of either party. See Ex Parte Cahill, supra.

Upon the death of Jody Martin Parr, her property passed immediately to her heirs at law and/or the beneficiaries of her Will as the case might be. Section 37 Tex.Prob.Code Ann. (Supp.1976); Edwards v. State, 162 Tex.Cr.R. 390, 286 S.W.2d 157 (1955); Meadows v. Russell, 203 S.W.2d 647 (Tex.Civ.App.-Texarkana 1947, no writ); Casey v. Kelley, 185 S.W.2d 492 (Tex.Civ.App.-Fort Worth 1945, writ ref’d).

Under Art. 5, § 16 and Art. 5, § 8, of the Texas Constitution and § 5, Tex.Prob. Code Ann. (Supp.1976), original probate jurisdiction was in the County Court at Law Number 1 of Nueces County. There was never any question of the 229th District Court having any jurisdiction over Jody Martin Parr’s property at the time of her death. The simple and controlling fact is that her death relieved the 229th District Court of its jurisdiction to decide the only question it had to decide: should Archer and Jody Parr be granted a divorce? Upon Jody Martin Parr’s death, the 229th District Court could no longer promulgate new orders or enforce existing orders concerning the property of Jody Parr. Her property vested immediately in her heirs at law and/or her beneficiaries under her Will. Upon the opening of probate, the probate court acquired full and exclusive jurisdiction over Jody Martin Parr’s property.

This brings us back to the question of the propriety of the Nueces County Probate Court’s order and the appeal by Archer Parr from such order.

Under § 28, Tex.Prob.Code Ann. (Supp.1976), any person aggrieved by any decision, order, decree or judgment of the probate court shall have the right to appeal said order. This section has been interpreted to permit appeals from only such orders which would be held conclusive, as adjudicative of some controverted question or right unless set aside by some proceeding appellate or revisory in nature. Lehman v. Gajewsky, 75 Tex. 566, 12 S.W. 1122 (1890); Halbert v. Alford, 82 Tex. 297, 17 S.W. 595 (1891). What this seems to mean is that an order is appealable if it finally adjudicates some substantial right, whereas if it merely leads to further hearings on the issue, it is interlocutory. See 17 Texas Practice § 104, p. 91. (See also pp. 91-92 for examples of appealable and non-appealable orders.)

In light of this test, the order by the probate court was apparently a final adjudication as to appellant Archer Parr. It seemed to determine all the issues between the parties that were before the court. However, there does not seem to us to be any substantial controversy for the trial court to have adjudicated. The order in question was, in reality, the sustaining by the trial court of Bonnie M. White’s previously filed and later withdrawn collateral attack on the judgment of the 229th District Court of Duval County in Cause Number 8732.

For the reasons stated herein, the Duval County divorce action and the Duval County receivership judgment became moot upon the death of Jody Martin Parr. When the Will of Jody Martin Parr was filed for probate, the Nueces County Probate Court acquired exclusive jurisdiction and venue over the separate and community property of Jody Martin Parr. Actually there was no substantial right affecting the parties that was before the probate court at that time. The probate court acquired jurisdiction over all of the property pertaining to the Estate of Jody Martin Parr. Tex.Prob. Code Ann. § 5(d) (Supp.1976). If there had been some evidence that the appellant Archer Parr was seeking to enforce the orders of the Duval Court, then a petition for some extraordinary writ might have been proper before the probate court. There is no evidence in this record of any such circumstances. The proponent appel-lee Bonnie M. White simply wanted a clarification of the status of the property as to which court had the power to determine the nature and ownership of the property in question. This question had already been answered when Jody Martin Parr died. Section 5(d) of the Texas Probate Code provides:

“All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate, including but not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills.”

Although we have serious doubts as to the appealability of the trial court’s order, we are convinced that appellant Archer Parr’s points of error have no merit and are, therefore, overruled. Even though the trial court’s reasoning was erroneous, the result was correct. See Rule 434, T.R.C.P.

The judgment of the trial court is accordingly AFFIRMED.

AFFIRMED.

      . Cause No. 1072, styled J. Craig Cowgill, Receiver, Alamo Lumber Company and Archer Parr v. Bonnie M. White, Individually and As Administratrix of the Estate of Jody Martin Parr, Deceased. 543 S.W.2d 437 (Tex.Civ.App.-Corpus Christi, 1976); Cause No. 1036, styled Archer Parr et al. v. Bonnie M. White, Administratrix, et al., 543 S.W.2d 440 (Tex.Civ.App.-Corpus Christi 1976); and Cause No. 1140, styled In Matter of Marriage of Jody Martin Parr and Archer Parr, 543 S.W.2d 433 (Tex.Civ.App.-Corpus Christi, 1976).

      . See Ex Parte Parr, 505 S.W.2d 242 (Tex.Sup.1974); Parr v. First State Bank of San Diego, 507 S.W.2d 579 (Tex.Civ.App.-San Antonio 1974, no writ); White, Administratrix v. Parr, 538 S.W.2d 234 (Tex.Civ.App.-San Antonio 1976, writ filed); and Bonilla v. Parr (Docket No. 15,418) (Tex.Civ.App.-San Antonio 1976).


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Mrs. Pauline FINCH et al., Appellants, v. Emma Dixon McVEA et al., Appellees.
    No. 1109.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 29, 1976.
    Rehearing Denied Nov. 30, 1976.

      James L. Drought, San Antonio, for appellants.
    Jack H. Dillard, Austin, Edward B. Rather, Jr., Gonzales, for appellees.
   OPINION

YOUNG, Justice.

This is a suit based upon fraud and undue influence for cancellation of a deed conveying real property. Trial was to the court without a jury. Upon findings of fact and conclusions of law, the trial court rendered judgment ordering the deed, promissory note, deed of trust and vendor’s lien can-celled. The judgment further ordered the grantor-plaintiffs to return the principal that had been paid on the note, but not the interest. The grantee-defendants appeal from that judgment.

On May 19, 1972, Emma Dixon McVea, a spinster residing in Gonzales County, Texas, executed a warranty deed conveying 160 acres of land to James W. Henrich and wife, Maureen P. Henrich, Steven R. Finch, James A. Finch and Steve 0. Finch and his wife, Pauline Finch. The grantees are all residents of California and are all relatives of Miss McVea.

As consideration for the deed, the grantees executed their promissory note, (there was no down payment), secured by the vendor’s lien and a deed of trust, for $40,000.00 (total purchase price); bearing interest at 6% (below the prevailing rate); payable until paid in full in monthly installments of $300.00 each to be applied first on interest and the balance on principal. The note further provided that “in the event” of the death of Miss McVea prior to the final payment on the note, the remaining obligation would be extinguished. The sale was negotiated by Steven 0. Finch, who was a nephew of Miss McVea and the father of several of the grantees. He died in March of 1973, which was prior to the trial.

At the time of the negotiations, Miss McVea was approximately 75 years old, was diabetic, and was in excess of 100 pounds overweight. Several months before her conveyance and because of her illness, Miss McVea moved from her property to live with her sister, Mrs. Smith, in Waelder, Texas. Approximately five months after her conveyance, Miss McVea suffered a stroke and was hospitalized in Houston, Texas. While recovering from this illness, she executed a power of attorney in favor of her niece, Dessie Patterson, who was a daughter of Mrs. Smith and the sister of Steve O. Finch. Mrs. Patterson then assigned Miss McVea’s rights in the note to her husband, Frank M. Patterson, Sr.

Following her partial recovery, Miss McVea was transferred by the Pattersons in November 1972 to a nursing home in San Antonio, Texas. In January 1974, Miss McVea began living with the Pattersons with whom she was still residing at the time of trial. Then on May 4, 1974, Miss McVea and Mrs. Patterson filed suit in which they alleged fraud and undue influence by the grantees in the inducing of the execution of the deed. Mrs. Patterson joined as a plaintiff in a subsequent amended petition. The trial court ruled for the plaintiffs.

The appellants bring forward seven points of error. We will first consider their fourth and fifth points about fraud. In these points, they complain that the trial court erred in finding that the deed was induced by fraud because there was no evidence, or there was insufficient evidence, that any promise was made without a present intention to carry out such promise.

The testimony of the Pattersons and Mrs. Smith showed that appellants through Steve O. Finch promised, orally and by letter, to sell the land in question and share the profits equally if the money received by Miss McVea from the $300.00 monthly note payments were insufficient to provide for her needs; that after her stroke, her needs began to exceed considerably the $300.00; that they told Mr. Finch, before his death, of the additional needs; that he said he “couldn’t do anything about it” (alleviating the financial needs problem); that other than paying the $300.00 monthly, he did nothing toward Miss McVea’s needs, nor have any of the appellants.

The appellants deny the contention that the sale of the land was conditioned on Miss McVea’s needs. They do this by their introduction into evidence a letter dated May 15, 1972, signed by all the appellants. According to them, the letter is a written summation of their agreement with Miss McVea about the resale of the land. In that letter the appellants agree to pay Miss McVea one-half of any profits “in the event” they should ever sell the land. The controlling question, therefore, is whether the foregoing evidence is both legally and factually sufficient to support the trial court’s finding of fraud based upon the defendant’s intention not to perform their promise at the time it was made. We hold that it is for the following reasons.

The law is well settled that actionable fraud can be based upon a promise to perform a future action without a present intention to perform. Stanfield v. O’Boyle, 462 S.W.2d 270 (Tex.Sup.1971); Chicago, T. & M. C. Ry. Co. v. Titterington, 19 S.W. 472 (Tex.Sup.1892). In Stone v. Williams, 358 S.W.2d 151, 155 (Tex.Civ.App.-Houston [1st Dist.] 1962, writ ref’d n. r. e.), the court said:

“ . . . Where, as here, the representation is a promise to do something in the future and there exists at the time of the representation an intention not to perform, there is the representation of an existing fact. While a mere failure to perform is not sufficient to prove the existence of an intention not to perform at the time the promise is made, where the party allegedly making the promise denies making the promise, there is sufficient evidence to support a finding that there was the absence of intention to perform when it was made.” (Emphasis supplied).

About the effect of denial of the making of a promise, see also Bond v. Duren, 520 S.W.2d 460 (Tex.Civ.App.-Waco 1975, writ ref’d n. r. e.); Myers v. King, 506 S.W.2d 705 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref’d n. r. e.).

In our case, as we have noted, appellants have denied the promise to sell the land conditioned upon Miss McVea’s needs. There is evidence both legally and factually sufficient, together with the refusal to perform, to sustain the trial court’s finding. Therefore, we overrule appellants’ fourth and fifth points of error.

Appellants, in their first and second points of error, assert that there is no evidence, or insufficient evidence, to show undue influence.

As stated by the Supreme Court in Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208 (1954), undue influence is considered to be a species of fraud in Texas. See also Furr v. Furr, 403 S.W.2d 866 (Tex.Civ.App.-Fort Worth 1966, no writ); Smith v. Smith, 389 S.W.2d 498 (Tex.Civ.App.-Austin 1965, writ ref’d n. r. e.). It is also true that undue influence may be exercised through threats or fraud or by influence of the strong over the weak. Curry v. Curry, supra; Smith v. Mann, 296 S.W. 613 (Tex.Civ.App.-San Antonio 1927, writ ref’d). Even though undue influence is a species of fraud, evidence will not support a legal conclusion of undue influence based thereon unless it will support a legal conclusion of fraud. Curry v. Curry, supra. It is clear that the evidence in this case will support a legal conclusion of fraud as we have pointed out in our discussion of appellants’ fourth and fifth points of error. We hold, therefore, that the offered evidence will also support the trial court’s conclusion of undue influence. Appellants’ first and second points are overruled.

Appellants contend, in their third and sixth points of error, that the trial court erred in overruling their special exceptions to appellees’ pleadings. Appellants specifically complain of appellees’ failure to allege: clearly the procurement of a deed by undue influence; an intentional misrepresentation with an intention not to perform. The allegations complained of have been reviewed by us and we find the appel-lees’ petition sufficient. Even so, the trial court is granted a large measure of discretion in passing on exceptions to the pleadings and in the absence of a showing of abuse of discretion or injury resulting from the trial court’s ruling, the ruling will not be disturbed. City of Abilene v. Jones, 355 S.W.2d 597, 600 (Tex.Civ.App.-Eastland 1962, no writ). The appellants have not here demonstrated abuse of discretion or injury regarding the rulings. These third and sixth points are overruled.

Appellants’ final point of error is that the trial court erred in ordering cancellation of the deed without ordering the return of the interest paid by the appellants. This point of error has merit and we sustain it.

The primary purpose of a suit to cancel a contract obtained by fraud is to undo the fraud and place the parties in their original position. Howard v. Burkholder, 281 S.W.2d 764 (Tex.Civ.App.-Amarillo 1955, writ dism’d). Therefore, if relief is granted, the original status of the parties must be restored. A party will not be permitted to repudiate an instrument and retain benefits received under it. Freyer v. Michels, 360 S.W.2d 559 (Tex.Civ.App.-Dallas 1962, writ dism’d). Even more specifically, if an instrument is fraudulently induced, the party defrauded is not entitled to benefits under the instrument. Arnold v. Wheeler, 304 S.W.2d 368 (Tex.Civ.App.-San Antonio 1957, writ ref’d n. r. e.). Consequently, we find that it was error for the trial court to order cancellation without returning the parties to their former status.

In that regard, there is conferred upon us the power to modify the trial court’s judgment and to render such judgment against the appellants as should have been rendered by the court below.. Rule 435, T.R.C.P. Therefore, the trial court’s judgment is reformed to provide that the appellants do have and receive all principal and interest previously paid to Emma Dixon McVea.

As reformed, the judgment of the trial court is AFFIRMED.


author: SHANNON, Justice.

text:
    Dan TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 12508.
    Court of Civil Appeals of Texas, Austin.
    Nov. 3, 1976.
    Rehearing Denied Nov. 24, 1976.
    Larry W. Wise, Sloan & Wise, Austin, for appellant.
    W. W. Bob Richardson, Asst. County Atty., Austin, for appellee.
   SHANNON, Justice.

Dan Turner’s indefinite commitment to the Austin State Hospital is the subject of this appeal. The question is whether the county court properly charged the jury concerning the State’s burden of proof. The charge was that the State had the burden to prove each special issue by “clear and convincing” evidence.

The proceeding originated in the county court of Travis County by the filing of a petition for indefinite commitment of Dan Turner pursuant to Tex.Rev.Civ.Stat.Ann. art. 5547-41 (1975). The State alleged that Turner had been under observation and treatment at the Austin State Hospital for at least sixty days pursuant to a previous temporary commitment order. Further allegations were that Turner was mentally ill and required “. . . hospitalization in a mental hospital for his own welfare and protection or for the protection of others.”

The proof was that Turner suffered a mental derangement diagnosed, “Schizophrenia, Paranoid Type.” Turner had been in and out of mental institutions many times.

The court charged the jury that the burden of proof was “. . . upon the State to prove each of the . . . special issues by clear and convincing evidence. Unless you find that the State has proved each of the . . . special issues by clear and convincing evidence, you will answer for that special issue ‘No.’ If you find that the State has proved a Special Issue by clear and convincing evidence, you will answer that special issue ‘Yes.’ ” Turner’s counsel objected to the court’s charge for the stated reason that the State’s burden was to prove each element necessary for commitment “beyond a reasonable doubt.”

In response to the special issues the jury answered: (1) that Dan Turner was a mentally ill person, (2) that he was a mentally incompetent person, and (3) that he required hospitalization in a mental hospital for his own welfare and protection, or for the protection of others. Based upon the jury’s answers to the special issues, judgment was entered committing Turner as a patient in the Austin State Hospital for an indefinite time.

Turner’s important contention is that the State’s burden in an indefinite commitment proceeding is to prove each element for commitment beyond a reasonable doubt.

In a civil commitment proceeding the State must prove that (1) the proposed patient is mentally ill, and if so (2) that he requires hospitalization in a mental hospital for his own welfare and protection or the protection of others, and if so (3) that he is mentally incompetent. Tex.Rev.Civ.Stat. Ann. art. 5547-51 (1957). Neither art. 5547-51 nor any other provision of the Mental Health Code specifies the State’s burden of proof. The absence of such a provision is not surprising since traditionally the determination of the proper burden of proof has been regarded as one for judicial resolution. Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966).

The State’s burden of proof in an indefinite commitment proceeding is a question of major importance in Texas. The Fifth Court of Civil Appeals has written that in a temporary commitment proceeding the State has only the burden to prove the necessary elements for temporary commitment by “clear, unequivocal and convincing evidence.” Moss v. State, 539 S.W.2d 936 (Tex.Civ.App.1976, no writ). The First Court of Civil Appeals has written that in a temporary commitment proceeding the burden of proof is not that of beyond a reasonable doubt. Greene v. State, 537 S.W.2d 100 (Tex.Civ.App.1976, no writ). The Tenth Court of Civil Appeals on October 27, 1976, held that the trial court correctly charged the jury to determine the required elements for an indefinite civil commitment by a “preponderance of the evidence.” Powers v. State, 543 S.W.2d 194, 2 Tex.Ct.Rpt. 31 (Tex.Civ.App.1976). In Powers, the Waco Court of Civil Appeals stated that “. the burden of proof used by the trial court, to wit, by a ‘preponderance of the evidence’ did not violate due process and is a constitutional burden of proof.”

There is out-of-state authority that an indefinite commitment for mental illness requires proof beyond a reasonable doubt. In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648 (1973); Lessard v. Schmidt, 349 F.Supp. 1078, 1095 (E.D.Wis.1972), vacated on other grounds, 421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975); Suzuki v. Quisenberry, 411 F.Supp. 1113 (D.C.Haw.1976).

Other out-of-state cases hold that in an indefinite commitment proceeding the State has the burden to prove the necessary elements by “clear, unequivocal, and convincing” evidence. Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974); Dixon v. At torney General of Pennsylvania, 325 F.Supp. 966, 974 (M.D.Pa.1971); In re Valdez, 88 N.M. 338, 540 P.2d 818 (1975). The rationale of this line of authority is that since psychology and psychiatry are not exact sciences, the requirement of proof beyond a reasonable doubt would place an inordinate burden on the State.

It occurs to us that because psychology and psychiatry are not exact sciences, greater care should be exercised in indefinite commitments, and accordingly, a stricter burden of proof should be required of the State.

We certainly recognize that the State has a strong interest in the rehabilitation of a mentally ill person. If the proposed patient is dangerous, the State has an equally important interest in detaining him for his own protection and for the protection of others. The commitment framework, then, should not be so burdensome so as to thwart the State in achieving those interests.

On the other hand, the proposed patient has much at stake in an indefinite commitment proceeding. The chief consideration, of course, is that he may be forever deprived of his personal liberty. In addition, and unfortunately, real social and economic stigmas attach to one who is committed involuntarily to a mental hospital. And last, the elements of the State’s case as set out in art. 5547-51 are necessarily somewhat nebulous and speculative. See In re Ballay, supra. All of these considerations warrant the exercise of grave caution by the fact finder in determining whether an indefinite commitment is justified in the particular case. That caution is served in one way by requiring that the State prove an indefinite commitment case beyond a reasonable doubt.

For the reason that the court erroneously instructed the jury concerning the State’s burden of proof, the judgment is reversed and the cause is remanded to the county court for a new trial.

Reversed and Remanded.

      . Appellant has not questioned the propriety of the instruction upon the basis that the burden of proof of “clear and convincing” evidence is but another way of stating the burden of proof of “preponderance of the evidence.” See Meadows v. Green, 524 S.W.2d 509 (Tex.1975). As a result, that problem is not before this Court, and is not considered.


author: JAMES, Justice.

text:
    Deborah L. INGLES, Individually and as next friend of Joseph M. Ingles, a minor, Appellant, v. Robert T. COHEN, Appellee.
    No. 5626.
    Court of Civil Appeals of Texas, Waco.
    Nov. 12, 1976.
    Rehearing Denied Dec. 2, 1976.

      Pat Maloney, San Antonio, for appellant.
    Southers, Goldberg, Lyons & Huson, Inc., San Antonio, for appellee.
   OPINION

JAMES, Justice.

In this case the Appellant asserts a fatal conflict in the jury verdict. The trial court harmonized the apparent conflict and thereby entered judgment that Appellant take nothing against Appellee. We affirm.

Plaintiff-Appellant Deborah L. Ingles, Individually and as Next Friend of Joseph M. Ingles, her minor son two months of age, brought this suit against Defendant-Appel-lee Robert T. Cohen and against Defendants Harold Andrew Harwell, Amy Har-well, Susan Cooley, Jean Love, and Frances Foley. This suit was brought under the Wrongful Death Statute, Articles 4671 et seq., Vernon’s Texas Civil Statutes.

Plaintiff-Appellant alleged that on or about September 9, 1973, her deceased husband James M. Ingles was an invitee at a swimming facility owned and operated by Defendants Harold Andrew Harwell, Amy Harwell, Susan Cooley, Jean Love, and Frances Foley, said Defendants being hereinafter referred to as “the owners.” Defendant-Appellee Cohen was also using the same swimming facility, and Plaintiff alleges that “without keeping a proper lookout said Defendant (Cohen) jumped from a bluff approximately 45 feet in height, and while plunging to the water, struck James M. Ingles, rendering him unconscious and causing his death by drowning.”

The case was submitted to a jury under the Texas Comparative Negligence Statute, Article 2212a, Vernon’s Texas Civil Statutes. Appellant contends there is a fatal conflict in the jury’s answers to Special Issues.

In answer to Special Issue No. 1, the jury failed to find that Defendant Cohen (a) failed to keep a proper lookout, (b) attempted to jump into the water at a time when a person using ordinary care would not have done so, and (c) failed to warn the deceased James M. Ingles of his approach. In other words, the jury failed to find Defendant Cohen guilty of any negligence.

Likewise in answer to Special Issue No. 3, the jury failed to find that the deceased Ingles failed to keep a proper lookout. That is to say, the jury failed to find the deceased Ingles guilty of any negligence.

The jury found in answer to Special Issue No. 5 that the owners were guilty of negligence in failing to provide sufficient supervisory personnel to protect the safety of persons using the premises, and in answer to Special Issue No. 6 that this was a proximate cause of the occurrence in question.

Then in answer to Special Issue No. 7, which was the comparative negligence question, the jury found: (a) the deceased Ingles was 30% negligent, (b) the owners were 40% negligent, and (c) Defendant-Ap-pellee Cohen was 30% negligent.

The jury found zero damages in favor of Plaintiff-Appellant Deborah L. Ingles, the widow (individually), and $25,000.00 damages in favor of the deceased’s minor son.

Based upon the jury verdict, the trial court entered judgment in favor of Plaintiff-Appellant against the owners of the swimming facility in the amount of $25,-000.00, and adjudged that Plaintiff-Appellant take nothing against Defendant-Appel-lee Cohen. Subsequent to said judgment, Plaintiff-Appellant settled with the landowners, and no appeal is sought against said owners. The transcript shows a release of judgment which recites that the owners paid Plaintiff-Appellant $25,000.00, the full amount of the judgment.

Plaintiff-Appellant comes to this court appealing against Defendant Cohen only, asserting a fatal conflict between the jury’s answers to Special Issues Nos. 3 and 7a.

As stated above, the jury failed to find in answer to Special Issue No. 3 that the deceased Ingles failed to keep a proper lookout, thereby acquitting the deceased of negligence; whereas, in answer to Special Issue 7a, the jury found the deceased Ingles to be 30% negligent. Appellant contends this is a fatal conflict which necessitates a reversal and remand for new trial of the case against Cohen. We do not agree.

As stated above, in answer to Special Issue No. 1, the jury failed to find Defendant-Appellee Cohen guilty of any negligence, upon three specific grounds submitted to the jury. These findings (or failure to make findings) are not challenged by Plaintiff-Appellant. Likewise in answer to Special Issue No. 3, the jury specifically acquitted the deceased Ingles of negligence. On the other hand, Special Issue No. 7 is a general type issue, the purpose of which is not to establish liability but to allocate the percentages of negligence between the parties.

The specific findings (or rather failures to find) with reference to liability, control over the general findings of percentages of negligence as answered by the jury to Special Issue No. 7. In other words, in answer to Special Issue No. 1, the jury acquitted Defendant-Appellee Cohen of any negligence; and in answer to Special Issue No. 3 the jury acquitted the deceased Ingles of any negligence. This being so, these specific issues directed toward the liability aspect of the verdict control over the jury’s answers to Special Issue No. 7 to the effect that Cohen and the deceased were each 30% negligent. We have no fatal conflict here, but rather an apparent conflict which was properly harmonized and reconciled by the trial court. See Howard v. Howard, (Tex.Civ.App. Austin 1937) 102 S.W.2d 473, writ refused; Benson v. M. K. and T. Railway Co. (Tex.Civ.App. Dallas 1946) 200 S.W.2d 233, NRE (a Federal Employees Liability Act ease, wherein comparative negligence was at issue); Howard v. Bachman (Tex.Civ.App. Eastland 1975) 524 S.W.2d 414, no writ (a case tried under Article 2212a, Vernon’s Texas Civil Statutes, our comparative negligence statute); Wilkinson v. Southern Farm Supply Association (Tex.Civ.App. Amarillo 1966) 409 S.W.2d 435, NRE. It was held early in our special issue practice that specific findings of negligence and contributory negligence control over general findings of such. See Sproles v. Rosen (Com.App.1935) 126 Tex. 51, 84 S.W.2d 1001, opinion adopted.

It is the duty of the trial court to reconcile apparent conflicts in the jury’s findings if this can be reasonably done in the light of the pleadings and the evidence, the manner in which the issues were submitted, and in view of the other findings when considered as a whole. Ford v. Carpenter (Tex.1949) 147 Tex. 447, 216 S.W.2d 558; 57 Tex.Jur.2d, “Trial”, par. 550, pp. 288 et seq.

For the foregoing reasons, judgment of the trial court is affirmed.

AFFIRMED.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. William ELDRIDGE, Defendant-Appellant.
    No. 36951.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 24, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.
    Robert C. Babione, Public Defender, Joseph W. Warzycki, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Nanette K. Laughrey, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was convicted of three counts of robbery first degree and sentenced on March 7, 1975 to five years imprisonment on each count. The sentences were ordered to run consecutively in the formal judgment entered. No mention of whether they would run consecutively or concurrently was made in the oral sentencing by the court.

First, defendant contends that a mistrial should have been granted due to the extremely prejudicial effect of a witness’ volunteered testimony that two of her companions, who did not testify at the trial, had positively identified defendant as one of the robbers. The testimony of this extrajudicial identification, however, was properly stricken and the jury was instructed to disregard it. The trial court’s action was a proper exercise of its discretion. State v. Hoyel, 534 S.W.2d 266, 270[7], [8-11] (Mo.App.1975); State v. Brown, 528 S.W.2d 503, 506[7] (Mo.App.1975).

Defendant’s second contention is that a pistol clip and shells found in his pocket were irrelevant and prejudicial and therefore should not have been admitted into evidence. This evidence was found in defendant’s pocket about one-half hour after the robbery. Two pistols were used in the robbery, one by the defendant. Evidence that defendant owned or had access to these articles shortly after the crime was relevant and therefore admissible. State v. Martin, 491 S.W.2d 299, 300[2] (Mo.1973); State v. Stancliff, 467 S.W.2d 26, 30[1] (Mo.1971).

Defendant’s third contention is that his right to a fair trial was prejudiced by improper cross-examination on matters which were beyond the scope of his direct examination. The allegedly improper questions elicited information concerning his whereabouts on the morning of the crime. Because defendant fails to demonstrate in what way, if any, he was prejudiced, this issue is not preserved for review. Rule 84.04(d); State v. Booth, 515 S.W.2d 586, 589[9] (Mo.App.1974).

Defendant also asserts that the trial court’s automatic imposition of consecutive sentences was improper under State v. Baker, 524 S.W.2d 122 (Mo. banc 1975). We cannot determine from the record if the consecutive sentences were imposed in the exercise of the court’s discretion or under the compulsion of § 546.480, RSMo.1969, declared unconstitutional in Baker. Re-sentencing, therefore, is in order. State v. Mullen, 532 S.W.2d 794, 800[11] (Mo.App.1975).

Judgment of conviction is affirmed but the sentencing is set aside and the case is remanded for the limited purpose of re-sentencing by the court, in the exercise of its discretion as to whether to impose the sentences consecutively or concurrently.

DOWD and CLEMENS, JJ., concur.


author: STEWART, Judge.

text:
    Larry Edward STEAD, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 37267.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 24, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.
    Application to Transfer Denied Feb. 14, 1977.

      William J. Shaw, Public Defender, Mary E. Fiser, Asst. Public Defender, Clayton, for plaintiff-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Noel Robyn, Asst. Pros. Atty., Clayton, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for defendant-respondent.
   STEWART, Judge.

This is an appeal from a denial of appellant’s petition for writ of error coram nobis. Appellant alleged that his guilty plea on January 31, 1966, to one count of second degree burglary and one count of stealing had not been made voluntarily with understanding of the nature of the charge because at the time appellant did not understand that he was pleading guilty to two separate felonies. We affirm.

In 1965 appellant, who was under a suspended sentence for burglary and stealing, was charged in a two count information with the crimes of burglary and stealing. He retained counsel who had represented him in the prior convictions. Appellant upon the recommendation of counsel entered pleas of not guilty. Subsequently appellant advised his counsel that he wished to withdraw the pleas of not guilty and plead guilty. Immediately after the trial court accepted appellant’s plea the following occurred in the presence of appellant:

“Mr. Alton: [Asst. Prosecutor] I would inquire of the Court first though, if the defendant’s plea of guilty as to— this is technically two charges, burglary second and stealing on this one information; the plea is to both second degree burglary and stealing?
The Court: You understand that, Mr. Wyne [App. Counsel]; you have discussed that with your client?
Mr. Wyne: Yes, Sir.”

At the hearing on this petition appellant testified that at the time he entered the pleas he thought he was entering a plea to one charge of burglary, “believing burglary and stealing” to be one crime; if he had known that two felonies were involved he would not have entered the plea.

Appellant testified that he did not become aware of the fact that he had been convicted of two felonies in 1966, and two felonies in 1964, until U.S. Attorney, who was prosecuting him for attempted larceny in 1968, advised the court that appellant had four prior convictions.

He acknowledged that he had entered pleas of guilty to identical charges in 1964. He was given a suspended sentence. Appellant testified that he had entered the pleas in 1964 on the same erroneous assumption that he was entering a plea to one charge.

A petition for a writ of coram nobis is a civil action. The burden of proving the factual allegations of the petition is upon the petitioner. Deckard v. State, 492 S.W.2d 400 (Mo.App.1973). In our review we are governed by Rule 73.01 as interpreted by Murphy v. Carron, 536 S.W.2d 30 (Mo.1976). We thus review the case upon the law and the evidence as in suits of an equitable nature. We defer to the trial court on matters of credibility.

In this case the issue was whether appellant knew he was pleading to two separate crimes. The only evidence to that effect came from appellant who was present at the plea hearing when the prosecutor emphasized the fact that the plea was to two separate crimes. He was also present when his counsel announced that he had explained to appellant that he was pleading guilty to two separate crimes. Appellant’s counsel testified that he had no independent recollection of explaining this matter to appellant but assumed he did because he would not have misled the court.

This case presented a question solely of the credibility of appellant who was definite only with respect to his subjective understanding of the nature of his plea. His response to questions on both direct and cross-examination, on some 36 occasions, was “I don’t recall,” “I don’t remember,” “I can’t remember,” and “I really don't remember.” The court was warranted in rejecting appellant’s testimony. Shoemake v. State, 462 S.W.2d 772[4] (Mo.1971).

The court did not err in finding that appellant did not carry the burden the law required.

The judgment is affirmed.

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


author: CLEMENS, Presiding Judge.

text:
    Dorothy ELLEBRACHT et al., Appellants, v. BURGER CHEF SYSTEMS, INC., et al., Respondents.
    No. 37111.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 31, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.
    William R. Murphy, St. Louis, for appellants.
    W. Munro Roberts, Jr., St. Louis, for respondents.
   CLEMENS, Presiding Judge.

Plaintiffs Dorothy Ellebracht and her husband A. E. Ellebracht sued the defendant corporation and its employee for damages arising from a rear-end collision by the corporate defendant’s truck, driven by the individual defendant. Under uncontradict-ed testimony that the driver was not at the time within the scope of his employment, the trial court directed judgment for the corporate defendant. Against the individual defendant, the jury returned a $200 verdict for the wife and $300 for the husband. Plaintiffs appeal, but their notice of appeal was untimely and we dismiss the appeal.

On January 23, 1975 the trial court rendered judgment for plaintiffs in accordance with the jury verdict. On February 10, 1975, eighteen days thereafter, plaintiffs filed their motion for new trial. This filing was not within the mandatory fifteen-day limit. Rule 78.04. Since there was no timely motion for new trial, the judgment of January 23, 1975 became final February 23, 1975, thirty days after rendition. Rule 81.05(a). For the appeal to be effective, notice thereof had to be filed within ten days after the judgment became final. Rule 81.04. Plaintiffs did not file their notice of appeal until May 14, 1975— eighty days late.

Since plaintiffs’ notice of appeal was not timely filed we do not have jurisdiction to entertain the appeal. Kuhn v. Bunch, 529 S.W.2d 200[1, 3] (Mo.App.1975).

Appeal dismissed.

STEWART and RENDLEN, JJ., concur.


author: RENDLEN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Clarence McCANN, Defendant-Appellant.
    No. 37163.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 31, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.
    Application to Transfer Denied Jan. 10, 1977.

      Charles D. Kitchin, Public Defender, James C. Jones, Frank R. Fabbri, III, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   RENDLEN, Judge.

Clarence McCann was convicted of possessing heroin, a Schedule I, Missouri Controlled Substance, § 195.200(1) RSMo 1969, V.A.M.S., and sentenced by the court under § 556.280 RSMo 1969, V.A.M.S., to ten years imprisonment. He appeals alleging as error: (1) the court’s denial of his motion to suppress narcotics seized from his person in a search not incident to a lawful arrest nor in compliance “with the constitutional requirements for a search warrant, and none ■ of the exceptions to the warrant apply”; and (2) denial of defendant’s request for disclosure of the State’s informant’s identity. We affirm.

On June 14, 1974, St. Louis Police Officers Robert Letterman and Joseph Mokwa, working in an unmarked police car, met an informant who told them that defendant, whom he named and described, was selling heroin near the intersection of Vandeventer and St. Louis Avenue. The officers had spoken with this informant many times and had used information from him five or six times leading to several convictions during the preceding year.

Driving to an alley near the intersection he had indicated, the three saw defendant and one Wilfred Jones, a known drug user, seated in the doorway of a building fronting on Vandeventer. The informant left the officers after pointing out defendant. Using binoculars, Letterman and Mokwa maintained surveillance of defendant and Jones for about thirty minutes, observing five or six known drug addicts who approached defendant and apparently engaged in transactions in which “exchanges” were made. The officers then placed defendant under arrest; and searching him, Officer Letterman discovered a Kool cigarette package containing thirteen capsules of material which he believed to be heroin. Subsequent police laboratory analysis confirmed this fact and it was these heroin capsules which appellant unsuccessfully sought to suppress by his motion, contending they were not seized incident to a lawful arrest.

If the arrest was lawful, though warrantless, the officers had express statutory authority to conduct the search and seize the evidence. Section 195.135(2) RSMo 1969, V.A.M.S., provides: “Any peace officer of the state, upon making an arrest for a violation of this chapter, shall seize without warrant any controlled substance ... in the possession of the person . . arrested, providing said seizure shall be made incident to the arrest.”

A warrantless arrest on probable cause was held constitutionally sufficient to support a search of the suspect’s person and seizure of heroin found during that search in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); and the search may extend to the area of his immediate control. Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Drake, 512 S.W.2d 166, 169[1] (Mo.App.1974).

The issue turns on the presence or want of probable cause at the time of arrest. “ ‘In dealing with probable cause, . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, supra, [338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)]. Probable cause exists where ‘the facts and circumstances within their [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, [69 L.Ed. 543, 555, 39 A.L.R. 790].” Draper v. United States, supra, 395 U.S. at 313, 79 S.Ct. at 333. Seeking to define the phrase, it has been stated in State v. Gant, 490 S.W.2d 46, 47-48[2-5] (Mo.1973): “‘[W]e are dealing with the probability, and not the certainty, that an offense has been or is being committed. While probable cause implies that the information which has come either directly or indirectly to the arresting officers’ knowledge must rise above mere suspicion of criminal activity, it at the same time need not be tantamount to that quantum of proof which would sustain a conviction of guilt.’ [cases cited] The test is whether the arresting officer had ‘reasonable ground to suspect that the person arrested has committed a felony.’ ” The court went on to note that: “Information from an informer who is reasonably considered by the police officer to be reliable justifies an arrest, and the informer’s information need not be first hand.”

The rule of probable cause has been described as a practical non-technical concept “affording the best compromise that has been found for accommodating . often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” Brinegar v. United States, supra, 338 U.S. at 176, 69 S.Ct. at 1311; Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

Here the officers had substantial detailed knowledge from a demonstrably reliable informant whose assistance had led to several convictions in the preceding year. The informant told them defendant was then selling heroin at a named location. Defendant was found where the informant said he would be and during a thirty minute surveillance the officers observed five or six known drug addicts approach and appear to engage in transactions with defendant in which it appeared exchanges were made. From this we find there was probable cause to arrest defendant and perceive no violation of his constitutional rights in the subsequent search.

Defendant relies on Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); however, in that case the officer merely observed the appellant speaking with a number of drug addicts over a period of eight hours. He had no other knowledge of the appellant’s activities, he saw no transactions taking place, and had no information of the substance of the conversations. The case at bar is clearly distinguishable both on the facts and the issue in dispute. The State in Sibron, unlike the case before us, abandoned any claim on appeal that the officer had probable cause to arrest the appellant.

Other authorities cited by defendant involve either warrantless searches not in connection with lawful arrest or the permissible scope of a search and have little application and are not controlling here. On this record we find no error in the ruling of the trial court denying the motion to suppress. Defendant’s contention is denied.

For his final point defendant contends the court erred in not compelling disclosure of the informant’s identity. In Roviaro v. United States, 353 U.S. 53, 59-62, 77 S.Ct. 623, 627-629, 1 L.Ed.2d 639 (1957), the Supreme Court stated: “What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. [citing cases] The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation . . . Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” See State v. Edwards, 317 S.W.2d 441, 446[4] (Mo. banc 1958), adopting the language of Roviaro; State v. Yates, 442 S.W.2d 21, 25[10] (Mo.1969); State v. Hubble, 494 S.W.2d 358, 361[2-3] (Mo.App.1973). It has been held that the determination of whether a defendant can have a fair trial without

requiring disclosure of an informant “is a matter resting within the discretion of the trial court.” State v. Yates, supra at 25[9]; State v. Hubble, supra at 361[4].

The courts have distinguished between participant informants, that is, those who are active in introducing police officers to the suspect or in setting up the criminal act and simple informants who merely provide information. The likelihood that fundamental fairness will require the disclosure of the identity of the latter group is substantially less. See State v. Edwards, supra at 447[4]; State v. Yates, supra at 25[11, 12]. In the present case the informant’s only role was providing advance information, which was followed by police investigation and fact determination leading to the arrest. His testimony or cross-examination would not have affected the fundamental issue of defendant’s guilt or innocence. “In State v. Sellaro, 448 S.W.2d 595, 598[2] (Mo.1969), this court applied, on this issue, the rule followed in Illinois and which met the approval of the United States Supreme Court in McCray v. Illinois [386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967)]. The rule so applied is that when the issue is not guilt or innocence, but probable cause for an arrest, the identity of the confidential informer need not, as a constitutional requisite to a fair trial, be disclosed ‘if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant.’ ” State v. Boyd, 492 S.W.2d 787, 791-2[3, 4] (Mo.1973), cert. den., 414 U.S. 1069, 94 S.Ct. 579, 38 L.Ed.2d 475 (1973). Here the defense was given the opportunity to cross-examine the officers at great length in the motion hearing. We find no error in the trial court’s refusal to disclose the identity of the informant.

The judgment is affirmed.

WEIER, P. J., and McMILLIAN, J., concur.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Joe Thomas CAMPBELL, Appellant.
    No. 36932.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 7, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.

      George D. Johnson, James B. Herd, St. Louis, for appellant.
    Preston Dean, Douglas Mooney, Asst. At-tys. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Joe Thomas Campbell has appealed from the judgment entered pursuant to jury verdict by which he was found guilty of exhibiting a deadly weapon in a rude, angry and threatening manner in the presence of Dennis Horton, a police officer, in violation of § 564.610 RSMo 1969.

Appellant does not challenge the sufficiency of the evidence, but a brief statement of the circumstances leading up to the charge against appellant is essential.

About seven o’clock in the evening of February 13, 1971, appellant, his brother, Paul, and Jack Daunty left a tavern where appellant worked, and after stopping at several other taverns, they entered the Tip Toe Lounge about eleven o’clock. While there an incident occurred involving appellant, which included a threat with a knife. Shortly after this incident appellant and his brother left the Tip Toe Lounge, but they returned in about fifteen minutes, and when they entered the Lounge appellant was carrying a loaded shotgun.

Two police officers, one of which was Dennis Horton, were in the Lounge. They were there in connection with a previous unrelated incident and had been asked by the owner to remain until the Lounge closed. When appellant entered with the shotgun he made a verbal threat to kill some of the patrons and was “waiving the shotgun around” while holding it parallel to the floor about waist high. Officer Horton identified himself to appellant and told him to drop the shotgun. Instead of doing so, he pointed the gun at Officer Horton, lunged at him, and said, “I’ll kill you too.” The officer knocked the gun away and grabbed appellant and they both fell to the floor. A violent struggle then occurred, with appellant’s brother and the other police officer joining in, over possession of the gun. The officers eventually subdued appellant and his brother and obtained the gun.

Appellant had marked for identification four colored photographs of himself and three of his brother which showed extensive facial and head injuries sustained by them at the hands of the police when they were subdued. The trial court permitted some of these photographs to be shown to witnesses during their cross-examination pertaining to identification, but it refused to permit any of them to be shown to the jury. Appellant assigns this refusal as error in three separate points, but before we consider them individually we shall dispose of certain issues common to each point.

The seven pictures are in color, and without attempting to describe them it is sufficient to say that they are individually and collectively gruesome and inflammatory. This, however, would not result in them being inadmissible in evidence if they have probative value as to an issue in the case, State v. Jones, 515 S.W.2d 504 (Mo.1974), unless the situation is so unusual that the extent of the prejudice overrides the relevancy and probative value. State v. Jackson, 499 S.W.2d 467 (Mo.1973). The relevancy of evidence depends upon whether the fact sought to be shown “tends to prove or disprove a fact in issue, or to corroborate evidence which is relevant and which bears on the principal issue.” State v. Tevis, 340 S.W.2d 415, 420 (Mo.App.1960); State v. Walden, 490 S.W.2d 391 (Mo.App.1973). But, if evidence, whether in the form of oral testimony or photographs, is offered as to matters “which have no bearing upon the matters in issue it should be excluded,” State v. Edmonson, 371 S.W.2d 273, 277 (Mo.1963), and when offered evidence is immaterial and irrelevant it is not error to refuse its introduction. State v. Clemmons, 460 S.W.2d 541 (Mo.1970).

Appellant was charged with exhibiting a dangerous and deadly weapon in the presence of Dennis Horton in a rude, angry and threatening manner. Whether he did so was the sole issue in the case, and the evidence clearly authorized a finding that he did, and the jury so found. The evidence also authorized a finding that after he did so, the two police officers disarmed him and subdued appellant and his brother when the two violently resisted. Whether the injuries sustained by appellant and his brother, as shown by the photographs, were the result of no more than necessary force to subdue them in view of their violent resistance, or whether the injuries in some degree were the result of “over reaction” on the part of the police officers, and we in no way infer or imply that this occurred, the amount of such injuries and their nature would not tend to prove or disprove any fact in issue, or to corroborate any relevant evidence bearing on the principal issue. Therefore, the photographs were not admissible in evidence unless for some other reason they can meet the relevancy test. As noted, appellant urges three reasons.

Impeachment

Appellant asserts that the “exclusion of said photographs, together with supporting testimony, prevented [him] from impeaching State’s witness Mark Crymes’ testimony that he observed appellant (rather than his brother) pull the knife.”

Mark Crymes testified on direct examination that when he arrived at the Tip Toe Lounge appellant and his brother were already there, and that while he and a friend were talking, appellant “turned around with a knife in his hand” and said he would “cut my throat.” Appellant points out that no other witness testified that he saw appellant displa.y a knife during the incident. During the cross-examination of Crymes appellant was permitted to show him three of the photographs of appellant and one photograph of his brother to see if he could identify the person shown therein. Appellant makes no contention that the witness should have viewed the other three photographs. He testified that one of the photographs of appellant shown to him could have been a photograph of a “little bit of anybody,” that another was of the “same man” and that the third was of the “back of his head.” When shown the photograph of appellant’s brother, Crymes testified that the person there shown was not the person who threatened him with a knife.

Appellant’s argument as to why all the photographs should have been shown to the jury is as follows: “If the photographs would have tended to show that the witness was mistaken in his identification of the appellant as the knife-wielding assailant * * * then Crymes’ testimony would have been substantially impeached and the State’s entire theory of motive on the part of appellant in committing the offense charged would have been negated.”

We first note that the photographs did not portray appellant or his brother as they appeared at the time of the knife incident, and we do not agree with appellant’s assertion, that the photographs tended to show that Crymes was mistaken as to his identification of appellant.

Next, motive was not an element of the offense charged against appellant. The act of appellant in entering the Lounge and pointing the shotgun at Officer Horton, and the jury found that he did so, needed no explanation to indicate intent or motive.“The act itself carried the intent with it.” State v. Spray, 174 Mo. 569, 74 S.W. 846, 851 (1903). Therefore, as far as the proof of motive was concerned, it was immaterial who had the knife at the time of the previous incident, or in fact whether anyone displayed a knife. We find no error in the refusal of the trial court to display the photographs, or the ones permitted to be viewed by Crymes, to the jury for the reason advanced in appellant’s Point I.

Self Interest of Horton

Appellant next asserts that the court erred in “excluding testimony and photographs of appellant and his brother” because they showed “the nature and extent of the injuries sustained by appellant and his brother and therefore demonstrated the self-interest of Police Officer Horton’s testimony.” He argues that the nature and extent of his injuries would show they were “far in excess” as to what the “police testimony” was “concerning the amount of resistance offered by appellant and his brother,” and for that reason the photographs would demonstrate the self-interest of the “police officer testimony.”

The testimony of Officer Horton was, in effect, that appellant did not give up the shotgun “willingly,” that after the officer obtained possession of the gun, appellant “tried to get it back,” and that appellant did not stop struggling for the gun until he was completely subdued. Aside from the fact that the amount of resistance by appellant, and the amount of force which was necessary for the officers to disarm him after the commission of the offense was irrelevant to the issue of whether appellant committed the offense charged, the trial court was vested with a substantial degree of discretion as to how far and in what respect appellant would be permitted to go into these matters not bearing directly on the issue of guilt or innocence.

Appellant cites Thorton v. Vonallmon, 456 S.W.2d 795, 798 (Mo.App.1970). In that case it was stated as a general rule that “a witness’ interest in the result of an action, civil or criminal, in the trial he testifies, or his bias or prejudice in favor or against any of the parties thereto, is proper to be shown for consideration by the jury as bearing on the credit which should be given to his testimony. The facts or circumstances showing the interest or bias of a witness and his relation to or feeling toward a party are not irrelevant or immaterial matters, even though they have no evidentiary bearing on the issues tendered by the pleadings.” But, it was further stated that the trial court “may properly limit the scope and extent of cross-examination into the witness’ bias or prejudice * * * but it is not within the trial court’s discretion to prevent it entirely.” In this case the trial court did not entirely prevent appellant from showing the possible interest of Officer Horton. He was permitted to show that a civil suit for damages had been filed against him by appellant, and he was cross-examined at great length concerning the injuries to himself and to appellant and his brother. The court viewed the photographs, it heard the testimony pertaining to the extent of injuries, and the testimony pertaining to the amount of force necessary for the officers to obtain possession of the shotgun and to subdue appellant and his brother. The trial court has considerable discretion in determining how and in what manner, and to what extent, the issue of witness interest should be shown. Assuming that the photographs would have had some bearing on Officer Horton’s interest, and we have serious doubts as to this, under the total circumstances it cannot be said that the trial court abused its discretion in refusing to permit the colored, and admittedly inflammatory, photographs to be exhibited to the jury for the reasons asserted in appellant’s second point.

Loss of Memory

Appellant testified that after visiting at least two other bars he went to the Red Top Bar, and while he could remember going to that bar he had no recollection of leaving it. He also testified that he had no recollection of being in the Tip Toe Bar on the night of February 13, 1971. In his Point III appellant asserts that the trial court erred “in excluding testimony and photographs” because they were “relevant in that they showed the nature and extent of the injuries sustained by appellant and his brother,” and by the court’s action appellant was precluded from “demonstrating the reason he was unable to account for his actions prior to and including his arrest.” He advised the trial court that the purpose of seeking the admission into evidence of the photographs (presumably only the four of appellant) was to show “his injuries, particularly the head injuries,” and he argued that a jury could then “deduce that a person who had sustained that type of an injury might not have a recollection of the event that caused the injury.” He further argued that with the knowledge of what was shown by the photographs the jury “can infer without any medical testimony a post-traumatic amnesia.” We note that the court expressly stated that it was “not precluding [appellant] from bringing in any medical evidence * * * through a competent physician to give his opinion as to whether this trauma would have caused the particular grade of amnesia.”

The cause of appellant’s amnesia, whether it was from intoxication or from head injuries, was not a matter within the ordinary experience and common knowledge of jurors, or a matter subject to be determined by jurors from the proof of physical facts without the aid of the opinion of experts in the field. Therefore, it was within the discretion of the trial court to withhold from the jurors the photographs when offered to prove the cause of appellant’s amnesia, and in view of the total circumstances, and the statement by the court that expert medical testimony as to the cause of appellant’s amnesia would be permitted, we find no abuse of discretion.

Appellant’s final contention is that the trial court erred in submitting to the jury Instruction No. 5, the verdict-directing instruction because it “omitted to require a finding of criminal intent or willful misconduct on the part of the defendant.”

Appellant points out that the indictment charged that appellant, “on the 13th day of February, [1971], at the City of St. Louis * * *, unlawfully and feloniously, in the presence of * * * Dennis Horton did exhibit a certain dangerous and deadly weapon * * Instruction No. 5 was in the precise form of MAI-CR 13.12, and in its material parts was as follows:

If you find and believe from the evidence beyond a reasonable doubt;

First, that on February 13, [1971], in the City of St. Louis, State of Missouri, the defendant exhibited a shotgun in the presence of Dennis Horton, and
Second, that he did so in a rude, angry and threatening manner, then you will find the defendant guilty of exhibiting a deadly weapon in a rude, angry and threatening manner.

Appellant admits that § 564.610 RSMo 1969, which defines the offense charged, “does not specifically set forth criminal intent as an element of the offense.” He contends, however, that the trial court should have required a finding in Instruction No. 5, or by use of another instruction, of criminal intent and that its failure to do so was prejudicial error.

The legislative definition of some crimes include specific intent as an element. For example, assault “with intent to kill, maim, ravish or rob.” § 559.180 RSMo 1969. MAI-CR 6.22 which submits these offenses specifically requires a finding that the accused committed the assault “with intent to (kill) (maim) (rape) (rob).” However, the statutory definition of other offenses do not include specific intent as an element, and the MAI-CR submission of those offenses do not require the finding of a specific intent. See MAI-CR 6.40 Rape: Forcible; MAI-CR 12.40 Molesting a Minor; and MAI-CR 13.20 Driving While Intoxicated. The offense of exhibiting a weapon in a rude, angry or threatening manner falls into this latter group. It is true that there may be exceptions to this general statement. Although § 564.610 RSMo 1969 does not make specific intent an element of the offense of carrying a concealed weapon, the courts have engrafted such an element, State v. Carter, 259 Mo. 349, 168 S.W. 679 (1914); State v. Jordan, 495 S.W.2d 717 (Mo.App.1973), apparently because of a practical acknowledgement that small arms can become unintentionally concealed. The additional required finding by a jury is a benefit to an accused, and cannot be basis for a complaint by him. However, one cannot without the specific intent to do so “exhibit [a firearm] in a rude, angry or threatening manner.” The Supreme Court of this State has not deemed it proper to require a separate finding of specific intent in the submission of the offense charged against appellant, and this court can perceive of no reason why it should be done.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles TATE, Defendant-Appellant.
    No. 37214.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 14, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.
    Joseph W. Warzycki, James C. Jones, Robert G. O’Blennis, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Ronald B. Sa-fren, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Charles Tate, the appellant, was convicted in the Circuit Court of the City of St. Louis of Murder in the First Degree, § 559.-010 RSMo 1969, and Robbery in the First Degree by Means of a Dangerous and Deadly Weapon, § 560.135 RSMo 1969. On appeal he does not question the sufficiency of the evidence to support the conviction, nor the validity of the sentences imposed, to-wit, life imprisonment on the Murder in the First Degree charge and ten years imprisonment on the Robbery in the First Degree by Means of a Dangerous and Deadly Weapon charge.

Two points are presented to this court for review. First, that the trial court erred in refusing his requested instruction “C” for the reason that there was evidence showing that he may not have understood what he was saying or doing by reason of mental defect or by drug addiction or intoxication. Because appellant has failed to set out the proffered instruction which the trial court refused to submit to the jury in the argument portion of his brief as required by Rule 84.04(e) this point is not preserved for review. State v. Lynch, 528 S.W.2d 454, 461[13] (Mo.App.1975). We do not review matters relating to the giving or refusal of instructions under the “Plain Error” rule, “unless the trial court has so misdirected or failed to instruct the jury on the law of the case so that the misdirection or failure to instruct causes a manifest injustice.” State v. Broomfield, 510 S.W.2d 843, 845[1] (Mo.App.1974). We do not find that to be the situation here.

Appellant’s second point is that the trial court erred in denying his motion for mistrial when Samuel Gimpelson identified him in court on the ground that he had not been informed that this witness would be an identification witness in accordance with the requirements of Rule 25.32, V.A.M.R.

Prior to disposing of this point it is appropriate that we now refer briefly to the evidence adduced by the State in support of the charges on which this appellant was tried and found guilty.

On November 15, 1974, at approximately 3:15 p. m., Joseph, Simon, Samuel and Hy-man Gimpelson, brothers and co-owners of the Ajax Iron and Metal Company, were in the company office at 2747 Papin Street in the City of St. Louis. Sheldon H. Marcus, a company supervisor, was also in the office with the Gimpelsons when Leroy Taylor entered, armed with a revolver and announced: “This is a robbery. Back up.” At this point in time another man, identified as Charles Tate, the appellant, entered the office armed with a shotgun. Mr. Taylor walked up to Hyman Gimpelson, who was standing by a counter in the office, and grabbed $700.00 from an open cash drawer, and demanded more money. Hyman Gim-pelson opened a combination safe but no more money was found there. As the two robbers were leaving Hyman Gimpelson tripped over an acetylene torch and knocked down Mr. Taylor, and while both men were on the floor appellant fired the shotgun he was holding and Hyman Gim-pelson was felled by two shotgun blasts fired by appellant. Samuel and Simon Gimpelson were wounded by shots fired from the revolver by Mr. Taylor. Hyman died from his wounds and Simon Gimpelson was confined to a hospital for a long period of time by reason of the wounds he received at the time of the robbery.

At trial Sheldon Marcus and Samuel Gim-pelson identified the appellant as the man who wielded the shotgun during the robbery. Also introduced into evidence was a statement the appellant had given to the authorities admitting participation in the robbery and implicating a third person as the driver of the getaway car.

The basis for appellant’s second point of alleged trial error came about in the following manner. Samuel Gimpelson, whose name appears as a witness for the State on the Indictment on which the cause came on for trial and as the victim of the assault charged in Count III of the Indictment, was called as a State’s witness. During the course of direct examination by the Assistant Circuit Attorney the following occurred:

“Q. (By Mr. Safren). What did you see, then?
A. I saw one man come in with the pistol raised in his hand, and I saw another man come in with the shotgun — station himself on the other side of the counter.
Q. Now the man with the shotgun, will you describe him for us?
A. The gentleman right here.
Q. Do you see him seated here?
A. Yes.
Q. Can you tell us how he is dressed today?”

At this point defense counsel requested permission to approach the bench and a lengthy colloquy between the trial court and respective counsel followed, during which appellant’s counsel objected to any testimony by Mr. Gimpelson relative to the identification of appellant as one of the robbers. Reduced to its simplest terms, the thrust of this objection was that appellant’s counsel, prior to trial, had filed a motion for discovery and a motion to suppress identification; that in complying with his request for discovery the State did not advise him that Samuel Gimpelson would be able to identify appellant as a participant in the robbery and, therefore, he was deprived of the opportunity to adduce evidence from this witness on his motion to suppress identification prior to trial and thereby obtain a ruling on whether Mr. Gimpelson’s identification of appellant was the result of suggestive identification procedures and his in-court identification subject to being excluded at trial. He complained that he was faced at trial with a new issue of identification of which he had not been forewarned and this constituted a violation of at least the spirit of the discovery procedures whose purpose was to allow both sides to know adequately what they faced at trial.

The Assistant Circuit Attorney advised the trial court that Mr. Gimpelson had not attended the lineup because he was in the hospital at the time it was conducted and that the witness had not confronted the appellant between the date of the robbery and the time he entered the courtroom to testify in the trial. The trial court indicated to appellant’s counsel that he was about to overrule his objection, and offered appellant’s counsel the opportunity to voir dire the witness out of the hearing of the jury and defense counsel announced that if the trial court was going to overrule his motion he would request a mistrial, and if the trial court was going to overrule this motion for a mistrial he would then voir dire the witness as suggested by the trial court.

The witness was voir dired and testified that at no time did he see a lineup in connection with this incident. He was shown some pictures by some police officers while in the hospital but he was in no condition at that time to recognize anyone. He admitted that he had given a statement to the same police officers who interviewed him in the hospital that he could identify both men who took part in the robbery. He did not know if the police officers wrote down the statement he gave them, although he thought that they probably did. He denied seeing any pictures since he had recovered from his wounds. He had not seen the appellant between the time of the robbery and when he saw him in court when he entered the courtroom to testify. He never heard the name “Charles Tate” until “today.” He knew after the lineup that at least some of the people in the lineup had been identified as the robbers and when he walked into the courtroom to testify he knew that one of the men who had been identified was being tried. He was able to identify the appellant because, “I looked at the man for ten minutes straight before I got shot.” He had not talked with either Mr. Marcus or his brother Joe about the case until “this morning,” but he talked with Mr. Safren, the Assistant Circuit Attorney handling the trial, “yesterday” at which time he told Mr. Sa-fren that he could identify in court the man who shot him. He also told Mr. Roth, Mr. Safren’s investigator that he could identify the man who shot his brother, and that statement he made to Mr. Roth “this morning.” He knew when he walked into the courtroom that he could pick out the'man who had the shotgun.

At the conclusion of this voir dire defense counsel renewed the same objection previously made, claimed that appellant had been prejudiced in front of the jury and asked for a mistrial. Mr. Safren said that he did not know until that morning that this witness could identify the appellant and defense counsel responded that if that were true, Mr. Safren should have then advised him of this fact. The trial court took the position that under the evidence there was no showing that this witness’ identification of the appellant was tainted. Referring to appellant’s motion for discovery the trial court remarked that it would seem, in the broadest sense, that the only request contained in the motion for discovery relevant to this point was that which asked for the names and last known addresses of persons whom the State intended to call as witnesses at any hearing or at trial, together with a request for their written or recorded statements and existing memoranda reporting or summarizing part or all of their oral statements, and these had been supplied appellant. The trial court thereupon ruled that there was nothing in the witness’ testimony to indicate any pre-trial confrontation which would be suggestive or give rise to a likelihood of irreparable mis-identifieation; that the testimony indicated that the in-court identification was not tainted by any independent pre-trial confrontation nor on any suggestion other than the knowledge of the witness based upon his viewing of the appellant at the time of the robbery. Appellant’s motion for mistrial was denied and Mr. Gimpelson proceeded to testify and identify the appellant as the man holding the shotgun during the perpetration of the robbery and the murder of his brother.

In the trial court the appellant’s objection was that the state violated Rule 25.32 V.A.M.R. by failing to disclose to him the fact that Samuel Gimpelson would be able to identify the appellant as one of the robbers at trial, and that he was thereby deprived of the right to call him as a witness at a hearing on a motion to suppress identification to ascertain whether his in-court identification testimony should be excluded. By reason of the failure of the appellant to incorporate in this transcript his motion for discovery we glean, from the trial judge’s remarks, that the only item sought in said motion germane to the issues here was the request for the names and addresses of persons the state intended to call as witnesses at any hearing or at trial, together with their written or recorded statements and existing memoranda reporting or summarizing part or all of their oral statements. As we have heretofore pointed out, Samuel Gimpelson’s name appeared in at least two places on the Indictment in this case; in Count III thereof and again as an endorsed witness in the cause. What response the state made to the aforesaid question directed to it by appellant’s motion for discovery we do not know except the record reveals that in a pre-trial conference appellant’s counsel, when asked by the trial court if defendant’s motion for discovery had been fully complied with, announced: “Yes, Your Honor.” From this we may assume that Samuel Gimpelson’s name and address was furnished to the appellant in response to his motion for discovery. From other portions of the record we also discern that while Samuel Gimpelson was still in the hospital recovering from his wounds he made a statement to some unidentified police officers that he could identify both of the men who participated in the robbery. While he was of the opinion that the police officers to whom he gave the statement “probably” wrote it down, he was not certain. If this statement was reduced to writing or memorandum form we also deduce that it was neither furnished to the appellant in response to his motion for discovery, nor incorporated in the copy of the police report appellant’s counsel had, and that the Assistant Circuit Attorney had no knowledge of the existence of any writing or memoranda containing this statement nor the identity of the police officers to whom the statement was made.

While Rule 25.32(A)(1) requires that upon request the state furnish defendant the items sought in that request we have gleaned was a part of appellant’s motion for discovery, including the written or recorded statements, and existing memoranda reporting or summarizing part or all of their oral statements, it does not require the state to categorize its witnesses into various classifications, i. e., “identification witnesses.” Its duty is to furnish those items if they exist, not summarize what each witness’ testimony will be at trial.

If we assume, without deciding, that the state in this case violated the spirit and the letter of the Rule, the appellant was nonetheless afforded the opportunity to interrogate Mr. Gimpelson to ascertain whether his in-court identification testimony was tainted by any suggestive procedures so as to preclude his testifying at trial and identifying appellant as one of the robbers if the trial court found that it was so tainted.

Further, despite the provision for sanctions contained in Rule 25.45 V.A.M.R. upon the failure of a party to comply with discovery, the only relief appellant sought was a mistrial. While he objected to the witness’ testimony, he did not specifically request the trial court to exclude the testimony of Mr. Gimpelson, as he might have done, nor did he ask for a continuance so that he could better prepare his examination of the witness. The cases are legion which hold that the granting of a mistrial is a remedy so drastic that it is reserved for those cases where the error is of such dimensions and so prejudicial that the effect of the error cannot be removed in any other way that we need not cite them here. Therefore, even were we to assume that the state violated the spirit, or the letter of the discovery rule, (which we do not) we find no error in the denial by the trial court of appellant’s request for a mistrial under the circumstances of this case as reflected in this record.

We have considered those portions of the record specified in Rule 28.02 for error and find none.

We affirm.

SIMEONE, P. J. and GUNN, J., concur.

      . Appellant was charged in Count III of the Indictment with assault with intent to kill with malice aforethought Samuel Gimpelson and with the same offense in Count IV as against Simon Gimpelson; each charge was submitted to the jury but verdicts of not guilty were returned on both of these Counts.

      . Appellant sought to enlarge the wrong complained of by asserting in this court for the first time that by reason of the state’s failure to advise him that this witness was an “identification witness” he was inhibited in preparing properly for cross-examination of the witness. We do not consider this newly conceived grounds. State v. Larkins, 518 S.W.2d 131, 134[1] (Mo.App.1974).


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Respondent, v. Geraldine CAMPBELL, Defendant-Appellant.
    No. 37137.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 21, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.

      Cady & Godfrey, Dewey S. Godfrey, Jr., St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   McMILLIAN, Judge.

Defendant-Appellant, Geraldine Campbell, appeals from a jury conviction of manslaughter and a prison sentence of ten (10) years. She claims she was deprived of a fair trial because of a prejudicial question asked during the voir dire and by the resubmission of the assignment of punishment to the jury after they initially returned a guilty verdict with an indeterminate sentence. We affirm the judgment.

No question is raised as to the sufficiency of the evidence to support the verdict — we, therefore, need not recount the events of the crime.

Appellant’s first contention is that a question by the prosecutor to the jury panel during voir dire raised the improper inference that she had previously been convicted of crimes or would be paroled if convicted. The question asked was:

“Is there anyone here who knows any members of law enforcement agencies? By that I mean either police officers, City or County, or City marshals, federal agents such as the FBI, any members of the court, any judges or clerks in the courts, Board of Probation or Parole, or anything like . . . .”

We feel that the trial judge properly overruled the defense attorney’s objection to the reference to the Board of Probation or Parole. The purpose of the voir dire examination is to ferret out biases and prejudices of potential jurors, which would prevent them from deciding on the basis of the evidence and the law, State v. Turnbough, 498 S.W.2d 567, 570 (Mo.1973). The trial judge has considerable discretion as to the conduct of the voir dire examination including the use of specific questions, State v. Scott, 515 S.W.2d 524, 527 (Mo.1974). No abuse of that discretion has been shown.

Appellant’s second contention relates to the sentencing procedure. The ease having been submitted to the jury in the afternoon, the jury returned that evening with a verdict of guilty of manslaughter with punishment stated as “imprisonment by the Department of Corrections for not less than two nor more than ten years.” The trial judge then asked counsel their preference as to whether the court should set the punishment or whether the jury should be returned to deliberate further. The defense attorney stated his desire to have the jury set the punishment. Thirty minutes later, the jury returned with an assessment of ten (10) years imprisonment. On appeal, it is claimed that this constituted reversible error because by statute it is mandatory for the judge to assess punishment in situations “[wjhere the jury agree upon a verdict of guilty but fail to agree upon the punishment to be inflicted or do not declare such punishment by their verdict . . . [or] where the jury finds a verdict of guilty and assesses a punishment not authorized by law . . .” Rule 27.03, V.A.M.R., § 546.440, V.A.M.S.

In the present case, even if the action of the trial court was erroneous, State v. Starks, 459 S.W.2d 249, 253 (Mo.1970), cf. State v. Wood, 355 Mo. 1008, 199 S.W.2d 396, 398 (1947), it provides no basis for relief to the appellant because the action was expressly requested by appellant’s attorney. Rule 26.06, V.A.M.R., provides that:

“A defendant in any criminal case shall have no just cause for complaint because: (1) error was committed during the trial at his instance or in his favor . . .

See, e. g., State v. Adams, 497 S.W.2d 147, 154 (Mo.1973); State v. Clark, 277 S.W.2d 593, 601 (Mo.1955); State v. Watson, 511 S.W.2d 890, 893 (Mo.App.1974). Appellant attempts to circumvent Rule 26.06, V.A.M.R., by labelling the punishment assessment procedure as plain error under Rule 27.20(c), V.A.M.R. We need not decide this interesting issue of the interrelationship of the two rules. Even if the plain error rule is applicable, to warrant relief under that rule the court must find that a manifest injustice has occurred. In the present case, however, the ten year sentence received by appellant was within the statutory limits, § 559.140, V.A.M.S. Either the judge or the jury could assess such punishment. Appellant, therefore, cannot demonstrate prejudice resulting from the fact that the jury assessed punishment.

Judgment affirmed.

WEIER, P. J., and RENDLEN, J., concur.