author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gregory Bryant JONES, Defendant-Appellant.
    No. 37613.
    Missouri Court of Appeals, St. Louis District, Division 4.
    March 7, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1978.

      Charles E. Kirksey, Jr., Harris, Kirksey & Thomas, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty. St. Louis, for plaintiff-respondent.
   DOWD, Presiding Judge.

Defendant-appellant, Gregory Bryant Jones, was found guilty by a jury of attempted rape, § 559.260 RSMo 1969, and was sentenced by the court to six years imprisonment under the Second Offender Act. § 556.280 RSMo 1969. He appeals. For reasons hereinafter stated we affirm.

Since defendant questions the sufficiency of the evidence, we will review the evidence in the light most favorable to the State together with all reasonable inferences deducible therefrom and will disregard defendant’s evidence except as it aids the cause for the State. State v. Scruggs, 551 S.W.2d 306, 308 (Mo.App.1977). It is from the testimony of the prosecutrix that the State draws most of the facts of this case.

A jury could reasonably find the following facts. On December 1, 1973, the prose-cutrix, then age 15, and her girl friend were walking down Virginia Avenue in the City of St. Louis, travelling from a store to prosecutrix’s home. The time was approximately 6:00 p. m., and it was dark. The victim saw the defendant on the sidewalk and because she was slightly acquainted with him recognized him as Gregory Jones. Defendant approached her making persistent efforts to talk to her. When the victim rebuffed him he pulled her across the street. The victim then hollered, and defendant twisted her arm and pulled her to the back porch of an unlit house. When they got to the back of the house defendant threw a brick at the victim’s friend and then, at prosecutrix’s urging, she left to get help. After the friend left, defendant picked the victim up and placed her in a prone position on the porch. Because she was struggling he slapped her in the face. He then pushed up her dress and pulled her panties down to her ankles. She did not see defendant unzip his trousers and did not actually see defendant’s penis. Prosecutrix testified that during the struggle she felt his penis on her leg. At this point, before penetration was achieved, the friend returned with the victim’s brothers and defendant got up and ran away.

Prosecutrix’s friend, also acquainted with the defendant, identified him as the assailant. Her testimony corroborated that of the victim as to all events before she left for aid and after she returned.

The arresting police officer also testified. He stated that after he placed defendant under arrest and advised him of his rights and the charges against him, the defendant said, “I ain’t going to jail for trying to get some pussy”.

Defendant first contends that there was insufficient evidence to support a conviction for attempted rape because the prosecutrix never saw defendant’s penis or saw him with his trousers opened. We disagree. We believe there was strong evidence to support the conviction of attempted rape. Here the defendant took the victim by force to the back of a house, picked her up and forced her into a prone position, slapped her, pushed up her dress, and pulled down her panties to her ankles. The victim felt his penis on her leg. The defendant was thwarted in his attempt to rape the victim when her brothers came to the scene and the defendant fled. The defendant then admitted to the police, “I ain’t going to jail for trying to get some pussy”. State v. Stewart, 537 S.W.2d 579[2] (Mo.App.1976). The point is without merit.

Defendant next contends “the trial court committed reversible error in giving an instruction No. 4 which was inconsistent with the offense charged.” The State maintains that defendant has failed to preserve this point for review because he has not strictly complied with Rule 84.04(e) requiring that challenged instruction be printed in the argument portion of defendant’s brief. Although defendant did not print the instruction in the argument portion of his brief, he did attach the instruction to the brief. While we discourage this practice, we will not dismiss the point for this reason.

The State also maintains that this point is not preserved for review because defendant did not specifically object to the challenged instruction either at trial or in his motion for a new trial. It is true that defendant did not specifically object to the instruction before submission to the jury, but that is not fatal to defendant’s challenge so long as specific objection is made in the motion for a new trial. Rule 20.03; State v. Williams, 524 S.W.2d 137, 139 (Mo.App.1975). In his motion for a new trial defendant did allege, “That the court erred in presenting the verdict directing instruction offered by the State wherein the victim’s age was made an essential element of the case.” The problem with the language of that assignment of error is that it is ambiguous. It can be understood either as a description of the allegedly defective instruction or as a vague explanation of the alleged instruction’s deficiency. In either case, this allegation in the motion for new trial does not comport with Rule 27.20(a) in that it is not specific and a general allegation preserves nothing for review. State v. Butler, 534 S.W.2d 832, 835 (Mo.App.1976); State v. Harper, 553 S.W.2d 895, 899 (Mo.App.1977). This allegation has preserved nothing for appellate review.

Likewise, the point relied on as stated here is that the trial court committed reversible error in giving the verdict directing instruction “which was inconsistent with the offense charged”. This point preserves nothing for appellate review because it totally violates the directions of Rule 84.04(d) which are mandatory. The point fails to set out concisely wherein and why the instruction is inconsistent with the offense charged. State v. Robinson, 551 S.W.2d 309, 312[2] (Mo.App.1977).

Plain error Rule 27.20(c) has not been alleged and instructions are not reviewable under plain error unless the trial court has misdirected or failed to instruct the jury on the law of the case so as to cause manifest injustice. State v. Johnson, 546 S.W.2d 725, 72-[2, 3] (Mo.App.1977). Our examination of the instruction reveals that the trial court failed in neither respects and no manifest injustice is found.

The judgment is affirmed.

SIMEONE, C. J., and SNYDER, J., concur.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    Timothy Larry JONES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39257.
    Missouri Court of Appeals, St. Louis District, Division 1.
    March 21, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1978.

      David V. Uthoff, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Mitchell F. Stevens, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant has appealed from denial of his Rule 27.26 motion. We affirm.

Defendant entered pleas of guilty to first-degree robbery and attempted rape and the trial court set punishment at eight years’ imprisonment. Thereafter, defendant filed his Rule 27.26 motion alleging involuntary pleas of guilty and ineffective assistance of counsel. The trial court held an evidentiary hearing, denied defendant’s motion and found defendant’s plea was voluntarily entered with effective assistance of counsel. Defendant appeals.

First, defendant testified his guilty pleas were involuntary — that he pled guilty because his attorney told him he would be released on probation. Defendant’s attorney, Mr. Beatty, denied this and testified he specifically advised defendant probation was not a possibility. The trial court was not required to believe movant’s testimony. State v. Hurtt, 509 S.W.2d 14[5] (Mo.1974).

Defendant further contends his pleas were coerced by the improper participation of the trial judge in the plea-bargaining process. At the Rule 27.26 hearing, Mr. Beatty testified that after a tentative plea agreement had been reached the trial judge advised him that all the circumstances would be considered in sentencing and that defendant might receive a lesser sentence than that recommended by the prosecuting attorney. Mr. Beatty related this information to defendant. Here, the trial judge did not participate; he merely commented on the tentative recommendation after the plea bargain had been struck. The trial judge’s actions are properly within the guidelines in State v. Tyler, 440 S.W.2d 470[4 — 7] (Mo.1969):

“If a tentative plea agreement has been reached which contemplates entry of a plea of guilty ... in the expectation that other charges before that court will be dismissed or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate to the prosecuting attorney and defense counsel whether he will concur in the proposed disposition if the information in the pre-sentence report is consistent with the representations made to him. . . . ”

Here, the guilty plea record shows defendant’s pleas were voluntary. He admitted the truth of the facts of robbery and attempted rape alleged by the state. Judge Walsh thoroughly examined defendant, pursuant to Supreme Court Rule 25.04, VAMR., with respect to each charge, and concluded: “Let the record show that the Court finds beyond a reasonable doubt that the plea of guilty on behalf of the defendant is a free and voluntary one on his part, that he understands the consequences of his plea and that he’s pleading guilty because he is, in fact, guilty of this charge.”

We find defendant knowingly and voluntarily entered the pleas of guilty. The trial court’s findings and conclusions are not in error.

Second, defendant contends he was denied effective assistance of counsel because of counsel’s failure to move for a psychiatric examination before the plea hearing. Counsel’s inaction, he contends, caused him to involuntarily enter pleas of guilty.

In the absence of some warning sign or suggestion of mental aberration there is no duty on counsel to initiate an investigation of the mental condition of an accused. Chapman v. State, 506 S.W.2d 393[2, 3] (Mo.1974). The record fails to show defendant suffered from any mental disease or was incompetent to stand trial. Defendant argues his refusal to cooperate with his attorney signified his mental incompetency. We cannot agree. The record shows defendant refused to cooperate because he wanted a private attorney, not a public defender to represent him. This is not evidence of mental instability and we find defendant was not denied effective assistance of counsel.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: SMITH, Judge.

text:
    Kirk COLLINS, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 38925.
    Missouri Court of Appeals, St. Louis District, Division 1.
    April 4, 1978.
    Robert C. Babione, Public Defender, Mary E. Dockery, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Kirk Collins appeals from the action of the trial court dismissing movant’s Rule 27.26 motion without appointment of counsel or evidentiary hearing. Collins was convicted of first degree murder and assault with intent to kill with malice. He was sentenced to life imprisonment for the murder and 25 years for the assault. On appeal his convictions were affirmed. See State v. Collins, 520 S.W.2d 155 (Mo.App.1975). We reverse and remand for further proceedings.

The motion contained 20 grounds, with subpoints to some grounds. On appeal movant premises error upon the refusal to appoint counsel and hold an evidentiary hearing as to his allegations of ineffective assistance of counsel. We find it unnecessary to discuss each of the allegations of ineffectiveness as we find one allegation to be sufficient to warrant appointment of counsel and evidentiary hearing. Under Rule 27.26(h) counsel will have an opportunity to amend the motion if warranted to present all grounds available to movant whether properly pleaded in the original motion or not.

The allegation we find sufficient reads as follows:

“Defendant was denied effective assistance of counsel under the sixth amendment in that counsel did not investigate the case, nor talk to important witnesses in behalf of defendant’s defense . (d) ‘Defendant requested from counsel to go and talk with three witnesses who were employed where defendant also worked, but counsel did not go and seenor (sic) talk with said witnesses who were favorable to the defense’, shorty (sic) after defendant was convicted, Beatrice Collins went to where the three witnesses were employed, (said witnesses would testify at trial) and asked why they didn’t come to trial to testify, where-upon they stated that no lawyer ever got in touch with them, and that they ‘called’ counsel’s office to try and learn when could they see him, and left their number with his office for counsel to return their call, counsel never got in touch with them at any time concerning the defendant’s case, and told defendant, while at trial, that he got in touch, had a subpeona (sic) sent to them, but didn’t know why theyweren’t (sic) at trial, their testimony would have seriously questioned the statement of positive identification made by the states witnesses, Beasley v. United States, 491 F.2d 687 held that, ‘Defense counsel must investigate all apparently substantia] defenses available to thedefendant (sic) and must assert them in a proper time and-manner (sic).’ The names of the three witnesses are, Clarence Miller, Laverne Taylor, and Sara Sewell, all were employed at the Supreme Cab Co. They all were to testify as to defendant’s physical appearance on the date of Sept. 18, 1972, and that defendant’s face was so badly swollen at that day and time that defendant was unrecognizable to them, let alone to someone who claimed they only saw defendant for a couple minutes, as the states witness testified. Counsel failed to go and see these witnesses, and have their favorable testimony at trial.”

The trial court concluded this allegation was conclusory, immaterial, and constituted only impeachment of the state’s only eyewitness to the crime. See State v. Garton, 396 S.W.2d 581 (Mo.1965). Movant’s conviction was based upon one victim’s identification of movant as one of the men who shot him and a companion. The identification was based upon a brief look at movant and upon the witness’ testimony that he recognized movant from having seen him twice within the week before the crime.

Movant’s allegation identifies by name three witnesses he requested his counsel to interview. It alleges counsel did not interview them and failed to respond to their efforts to contact him. It sets forth the substance of their testimony and in what respect it was beneficial to movant. This meets the requirements of the allegations necessary to entitle movant to an evidentia-ry hearing. See Smith v. State, 513 S.W.2d 407 (Mo.banc 1974); Thomas v. State, 516 S.W.2d 761 (Mo.App.1974). The trial court did not find and the state does not contend these allegations are refuted by the record. The allegation by movant goes beyond merely an impeachment of the state’s eyewitness as involved in the Garton case, supra, relied upon by the trial court. That movant on the day of the crime had a face so badly swollen as to be unrecognizable by his fellow workers goes directly to the question of whether movant was in fact the person seen at the scene of the crime. His identity was the key to the state’s case and misidentification was movant’s only real defense. It was counsel’s obligation to investigate any witnesses who might support a claim of misidentification, particularly if their identity was revealed to him by mov-ant. Movant stated facts which if proven would be sufficient to support a finding of ineffectiveness of counsel. He was entitled to the appointment of counsel and an evi-dentiary hearing under the provisions of Rule 27.26.

Judgment reversed and cause remanded for further proceedings.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: McMillian, Judge.

text:
    Marvin D. HEDGER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39339.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 4, 1978.
    O. J. Gibson, Jr., Cape Girardeau, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, for respondent.
   McMillian, Judge.

Appellant appeals from an order of the circuit court denying, without an evidentia-ry hearing, his Rule 27.26, V.A.M.R., motion. Appellant asserts that the trial court abused its discretion in failing to grant an evidentiary hearing because allegations and issues of fact presented in his motion were sufficient as a matter of law. We disagree and affirm.

We have reviewed the record of the guilty plea and read the briefs of the parties. The facts alleged in support of appellant’s grounds for relief are refuted by the record made at the time of his plea of guilty to the charge and his answers given therein to the court. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974); and Collins v. State, 556 S.W.2d 225 (Mo.App.1977).

Any further discussion of appellant’s allegations would not have any precedential value, and would only serve to lengthen this opinion.

Judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas Michael EDDY, Defendant-Appellant.
    No. 39103.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 4, 1978.

      Robert C. Babione, Joseph W. Webb, Frank R. Fabbri, St. Louis, for defendant-appellant.
    John D. Ashcroft, Paul R. Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of robbery in the first degree and resultant 10 year sentence imposed by the court. We affirm.

The evidence established that defendant approached an automobile at a stop sign in St. Louis City near midnight. Defendant held a gun on the driver from the front passenger window and demanded and received the driver’s leather jacket and wallet. The driver attempted to flee by starting his car suddenly and moving into the middle of the street, where his car stalled directly in front of an unmarked police car. The plain clothes policemen in that vehicle noticed defendant move away from the victim’s car as it started up and noticed he had a jacket wrapped around his hand. They observed the defendant go into an alley and one of the policemen followed him at a walk. That officer then observed defendant remove the jacket from his hand and saw that defendant was holding a pistol. The police officer gave chase, and ordered defendant to stop, which he did. Upon stopping, the defendant threw the jacket and gun over a fence where they were subsequently recovered. The jacket was later identified by the victim as his and the gun as the one the robber held on him. Defendant was arrested for carrying a concealed weapon. The police officer took defendant to the police car which had, during the chase, gone to a location in front of the house in the backyard of which defendant was apprehended. Upon arrival at the car, the police officers heard a radio broadcast advising of the robbery of the automobile driver. The victim had, after once again starting his car, located a taxi cab in close proximity. The taxi driver notified his dispatcher of the robbery and the dispatcher in turn notified the police. The police officers drove to where the victim and the cab driver were located and the victim identified defendant as the man who had robbed him. This identification occurred within ten minutes after the robbery. Defendant was then searched and the victim’s wallet was found in his possession. Cards and papers from that wallet were subsequently found in the backyard where defendant was arrested.

Defendant testified that he had left his home, two houses from where he was arrested to go to a liquor store. He testified he was arrested by the police on the street in front of his house, that he had never had possession of the jacket, gun or wallet, and that he did not commit the robbery. His girl friend and a brother testified in general support of defendant’s story.

On appeal, defendant raises two points. The first concerns the trial court’s refusal to allow a witness for the defense to testify because of a failure by the defendant to disclose such witness during discovery. Rule 25.45 provides that exclusion of non-disclosed evidence is one of the sanctions which the trial court may impose for violation of the rules of discovery. We find no abuse of discretion in the court’s action here. This is particularly true because defendant made no offer of proof of what the excluded witness would testify to and made no specific statement in his motion for new trial of the testimony which would have been given. Neither we nor the trial court can assess the admissibility, relevancy, or importance of the excluded testimony.

Defendant’s second point is that the court erred in posing the following question to defendant during his testimony:

“I take it, Mr. Eddy, that you feel that the police framed you in this ease.”
Defendant responded: “Yes, your Honor, I think so.”

No contention is advanced that the question was asked with any inflection or facial expression indicating a disbelief of defendant’s story. The only challenge raised to the question is that it violated the standards of fairness and impartiality required of the trial court. It is axiomatic that a trial judge must not indicate by his comments or questions his opinion of the merits of the case or of evidence in the case. On the other hand, the judge does have authority to ask questions to clarify testimony. State v. Cain, 485 S.W.2d 60 (Mo.1972); State v. Campbell, 556 S.W.2d 742 (Mo.App.1977). Under the circumstances here, we find no error nor prejudice in the court’s inquiry. Given the total divergence between the testimony of the police officers and that of defendant the only explanation of defendant’s story was that the police planted the exhibits introduced at trial — in short that they framed defendant. We do not believe it was improper for the court to ask the question so long as it was posed in an impartial way. Where the defense was based upon a theory that defendant was framed, as this one by necessity was, we do not find that a direct question upon the matter is either erroneous or prejudicial.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: KELLY, Judge.

text:
    Mary Lee BRADLEY, Appellant, v. STATE of Missouri, Respondent,
    No. 39349.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 4, 1978.

      Wilson Gray, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Michael Finkelstein, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   KELLY, Judge.

Mary Lee Bradley, movant-appel-lant, appeals to this court from the judgment of the Circuit Court of the City of St. Louis denying her amended motion to set aside her conviction of murder in the second degree and to permit her to withdraw her plea of guilty to said charge entered on October 26, 1976, pursuant to the provisions of Rule 27.25 V.A.M.R. A motion to withdraw a plea of guilty under the provisions of Rule 27.25 V.A.M.R. after imposition of sentence entitles a movant to relief only to correct manifest injustice. Finding no manifest injustice in this proceeding, we affirm.

The rule in this state is that an application made pursuant to Rule 27.25 V.A.M.R. after imposition of sentence is necessarily an attack on the validity of the sentence within the meaning of Rule 27.26 V.A.M.R. and the procedure to be followed is the same as that set out in Rule 27.26 V.A.M.R. for a proceeding under that Rule. State v. Mountjoy, 420 S.W.2d 316, 323[7] (Mo.1967).

On appeal the grounds for reversing the judgment on review are stated under the “Points and Authorities” section of mov-ant-appellant’s brief as follows:

“Trial Court did not make findings of fact and conclusion (sic) of law on all points presented by the Movant in her 27.25 Motion.
“(a) The plea of guilty was not voluntarily made, as required by law, but was made out of fear, desperation and the promise of probation.
“(b) Inadequacy of and lack of effective assistance by counsel * * * (the Assistant Public Defender) stated that he did not talk with any of movant’s witnesses, even though she had given him a list of those witnesses, and he had a copy of the police report, which had a list of all principal witnesses, that he had this list since he had talked with movant in April of 1976, yet he never talked with a single witness.”

Briefly stated, the facts out of which this motion arose were that movant-appellant was initially charged by indictment with the offense of murder in the first degree growing out of her shooting to death Oscar Lee Bradley, her husband, on December 14, 1975. On October 26, 1976, after some plea bargaining, a substitute information in lieu of indictment, charging her with the offense of murder in the second degree was filed by the state and movant-appellant withdrew her former plea of not guilty to murder in the first degree and entered a plea of guilty to the substituted charge. A pre-sentence investigation was ordered, and on December 30,1976, allocution was granted and movant-appellant was sentenced to confinement in the Missouri Department of Corrections for a period of eighteen years. Execution of sentence was suspended and she was placed on probation, under supervision of the court, for a period of three years. While still on probation movant-ap-pellant filed this Motion to Set Aside Judgment of Conviction and Permit Petitioner to Withdraw Her Plea of Guilty on February 22, 1977. An evidentiary hearing was conducted on March 17, 1977, and on April 21,1977, the trial judge entered Findings of Fact, Conclusions of Law and an Order of Court denying the Motion. This appeal followed.

On appeal from a judgment in a proceeding of this kind, the trial court’s findings of fact and conclusions of law are presumed to be correct and should not be overruled unless the reviewing court finds them to be clearly erroneous. Rule 27.26(j) V.A.M.R.; Hurse v. State, 527 S.W.2d 34, 35[2] (Mo.App.1975); McCarthy v. State, 502 S.W.2d 397, 402[1] (Mo.App.1973). The findings of the trial court are “clearly erroneous only when the reviewing court on the entire record is left with a firm conviction that a mistake has been committed.” Deckard v. State, 492 S.W.2d 40G, 402[4] (Mo.App.1973). For a trial court’s findings of fact to comply with Rule 27.26(i) it is not necessary that specific findings be made as to every fact testified to by each witness, or that they be in model form; rather, all that is required is that the findings of fact be sufficient to permit the reviewing court to ascertain whether they are clearly erroneous. Thomas v. State, 512 S.W.2d 116, 121 (Mo. banc 1974). On appeal, however, we are required to rule only on those contentions preserved for review, and the appellant abandons those allegations appearing in his motion as a basis for relief which are not raised in the Points Relied On portion of his brief. State v. Mountjoy, supra, l.c. 324; Camillo v. State, 555 S.W.2d 386, 387[1] (Mo.App.1977).

In a proceeding on a motion to withdraw a plea of guilty under Rule 27.25 V.A.M.R. the movant has the burden of establishing the grounds for relief by a preponderance of the evidence. Rule 27.26(f) Y.A.M.R.; Camillo v. State, supra, l.c. 388[2]. The trial court found that movant-appellant’s plea, according to the testimony of the Assistant Public Defender, who represented her both at and prior to the time she entered her guilty plea, and the Assistant Circuit Attorney, who participated in the plea bargaining and the plea taking, was knowingly and voluntarily entered with an understanding of the nature of the amended charge. It also found that movant-ap-pellant’s counsel was not ineffective and that he met with the movant-appellant at least three times, and both he and his staff conferred with her on other occasions; that there was adequate pre-trial investigation by both defense counsel and his staff of investigators; that defense counsel was an experienced and able counselor and had made a full and complete investigation of the case and had advised movant-appellant to reject the offer of the state for a plea of guilty to the reduced charge but that she accepted the state’s offer and entered her guilty plea nonetheless.

With respect to movant-appellant’s contention that her witnesses were not interviewed by defense counsel, the trial court found that an investigator attached to the office of the Public Defender, at the direction of defense counsel, had contacted the people whose names had been given to defense counsel by the movant-appellant as witnesses and that those witnesses had been subpoenaed by the investigator. The subpoenas, the trial court’s findings stated, were introduced into evidence at the evi-dentiary hearing on the Motion and showed service had been obtained on these witnesses. From these findings of the trial court we conclude that the trial court did not err as movant-appellant contends.

In her brief movant-appellant argues other reasons why she should have the judgment of conviction set aside and why she should be allowed to withdraw her plea. These, however, are not incorporated as a part of the statement of the points to be reviewed under “Points and Authorities” contained in her brief and are not, for that reason, preserved for review.

The judgment of the trial court is affirmed.

GUNN, P. J., and WEIER, J., concur.

      . Under Rule 84.04 V.A.M.R. this should be “Points Relied On.” Rule 84.04(d) V.A.M.R.


author: STEPHAN, Judge.

text:
    Dorsey GRANT et al., Plaintiffs-Appellants, v. Carol FLETCHER, Defendant-Respondent.
    No. 38962.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 11, 1978.
    Morris B. Kessler, St. Louis, for plaintiffs-appellants.
    Ervin D. Davis, Charles Schroeder, St. Charles, for defendant-respondent.
   STEPHAN, Judge.

Plaintiffs appeal from the dismissal of their petition for failure to state a claim upon which relief can be granted. We reverse and remand.

In the case of a dismissal of a petition for failure to state a claim, the petition is to be construed favorably and the pleader given “the benefit of every reasonable and fair intendment in view of the facts alleged, and if the pleader’s allegations invoke principles of substantive law which may entitle it to relief, the petition is not to be dismissed.” Watson v. Franklin Finance, 540 S.W.2d 186, 188 (Mo.App.1976); Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 629-630 (Mo.App.1975). In such light the facts alleged in the petition may be stated thusly: Defendant was employed as a court reporter by the Division of Workmen’s Compensation of the Missouri Department of Labor and Industrial Relations. In such capacity, she recorded the testimony at hearings in cases in which each of the plaintiffs were claimants and received awards. In each case, the employer filed an application for review necessitating the preparation of a transcript of the testimony at the hearings. The defendant not only failed and refused to prepare such transcripts but concealed her records, requiring each of the plaintiffs to present his claim a second time at additional expense. Defendant’s conduct in this regard is alleged to have been willful, malicious, and in violation of certain statutes discussed infra. Plaintiff Grant seeks five hundred dollars as his “additional expense”, one hundred dollars for the loss of use for three years of the money awarded to him, and ten thousand dollars as punitive damages. Plaintiff Blackwell seeks three hundred dollars as his “additional expense” and ten thousand dollars as punitive damages.

In dismissing the two-count petition, the trial court found that there was no privity of contract between the defendant and either of the plaintiffs and, therefore, “no cause of action accrues to benefit of plaintiffs as a result of the alleged failure of defendant to transcribe said record.” We do not believe that a contractual relationship, vel non, between a party to an administrative hearing and the court reporter who records the hearing is determinative of the issue at hand. Rather, we look to whether defendant owed plaintiffs a duty to prepare the transcripts when the necessity therefor arose and, if so, whether plaintiffs are accorded any redress for her willful refusal to do so. We believe such duty is imposed on defendant by statute and that willful refusal to discharge it, as alleged, is actionable.

Section 287.460, RSMo 1969, provided that the division of workmen’s compensation shall hear evidence relating to claims upon which the parties cannot agree “through a referee”, and that “[a]ll evidence introduced at any such hearings shall be reported by a competent reporter appointed by the division.” Sections 287.470 and 287.480 provide for rehearing and review by the Missouri labor and industrial relations commission. At such stage, “the commission has discretion to hear further evidence, if deemed proper.” Reece v. St. Joseph Lead Company, 465 S.W.2d 849, 852 (Mo.App.1971) (emphasis added). However, the transcript of the proceedings at the initial hearing is an essential element of the record upon such rehearing or review as well as upon judicial review of the final award. With respect to judicial review, § 287.490 provides in part:

“Such appeal may be taken by filing notice of appeal with the commission, whereupon the commission shall under its certificate return to the court all documents and papers on file in the matter, together with a transcript of the evidence, the findings and award, which shall thereupon become the record of the cause.” (Emphasis added.)

Absence of such transcript as part of the record warrants dismissal of an appeal as it is “essential”. Adams v. American Paving and Construction Company, 488 S.W.2d 283 (Mo.App.1972). The foregoing demonstrates the absolute necessity for a transcript in a disputed case and underscores the helplessness of parties who find themselves situated as the plaintiffs in this case. The lack of privity between claimants and the reporter, relied on by the trial court to dismiss the petition, cannot be argued to absolve the reporter from any duty to the claimants, for such duty derives from the statutory machinery. Indeed, the only conceivable reason for the requirement that the evidence be “reported” is that it be transcribed should the need arise. The privity of employment contract implicit in the fact of a reporter’s appointment by the division cannot be interpreted as a legislative fiat immunizing reporters from an action of this nature. On the contrary, we believe the purpose of the provision in question is to ensure the presence of a person, selected impartially, who will perform the tasks contemplated by the statutes.

There is no novelty to the concept that a public officer or employee who negligently performs or refuses to perform a ministerial duty imposed on him by law can be made to respond in damages to one thereby injured. Noting this principle in Smith v. Berryman, 272 Mo. 365, 199 S.W. 165, 167 (Mo. banc 1917), the court said:

“ . . .an action will lie against an officer whose duty it is to perform, but who refuses to perform a ministerial act. There can be no doubt upon this point, and no one would be so bold as to contend otherwise, especially in a case which does not call for the exercise of official discretion. If the rule were not so, no suit would lie against an officer upon his official bond by a citizen, injured by a failure to correctly or timely perform a ministerial duty.”

In State ex rel. City of St. Louis v. Priest, 348 Mo. 37, 152 S.W.2d 109 (1941), suit was brought against a circuit court clerk for failure to issue executions on judgments obtained by the city. The court said, at' 112:

“The clerk of a circuit court is an administrative officer, whose functions are largely ministerial in character. Where the law specifically enjoins upon him the performance of certain actions which he negligently performs, he is liable on his bond to the person injured by his negligence.”

And in McLallen v. Henderson, 492 F.2d 1298 (8th Cir. 1974) it was held that, where a convicted felon had to wait for almost a year for the preparation of a transcript for use on appeal, he could maintain an action for damages against the court reporter. In reversing the action of the trial court which had dismissed because of the doctrine of judicial immunity, the court said at 1299-1300:

“This Court has held that court functionaries such as clerks are not clothed in judicial immunity because their duties are ministerial, not discretionary, in nature. Barnes v. Dorsey, 480 F.2d 1057 (8th Cir. 1973). Judicial immunity is only granted to non-judicial officials who, like judges, must not be unduly inhibited to exercise discretionary authority by the constant fear of personal liability for damages. * * * Reporters are like clerks, in that their duties are ministerial in nature and thus are not protected by quasi-judicial immunity.”

We are not unaware of cases which have extended the protection of judicial immunity to court clerks and reporters simply by reason of such officers’ titles. See, for example, Davis v. McAteer, 431 F.2d 81 (8th Cir. 1970) and Stewart v. Minnick, 409 F.2d 826 (9th Cir. 1969). Believing that the cases discussed above correctly articulate the law of this state, we decline to follow the others. Except for the most compelling reasons, we do not believe it appropriate to extend the doctrine of judicial immunity to one, like this defendant, whom the law accords a unique position from which to do harm to others.

Reversed and remanded for further proceedings consistent herewith.

STEWART, P. J., and REINHARD, J., concur.

      . Each plaintiffs claim is stated separately in the counts. The propriety of such joinder is not questioned, and we do not decide it. See Rule 52.05 V.A.M.R.

      . By recent amendment, the reference to “a referee” in the section was changed to “an administrative law judge.” Section 287.460 otherwise remains unchanged.

      . In McLallen, the court noted that the reporter might be entitled to an absolute defense of “qualified immunity” if it were made to appear “that he was acting pursuant to his lawful authority and following in good faith the instructions or rules of the Court and was not in derogation of those instructions or rules." Id. 1300. Defendant, of course, will have the same opportunity here on remand.


author: BROCK, Justice.

text:
    STATE of Tennessee, Petitioner, v. James Thomas BANKS, Respondent.
    Supreme Court of Tennessee.
    April 17, 1978.

      David L. Raybin, Asst. Atty. Gen., Nashville, for petitioner; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
    Robert L. Tucker, Roger A. Stetter, U. T. Legal Clinic, Robert W. Ritchie, Knoxville, for respondent.
   OPINION

BROCK, Justice.

The defendant was convicted of second degree murder and sentenced to 99 years imprisonment. He appealed and the Court of Criminal Appeals conditionally granted a new trial.

The defendant Banks and the victim, Sidney Edward Smith, Jr., attended a party together on the night of the slaying. Banks offered to take Smith home from the party. The next morning Smith’s nude body was found lying in a ditch in a Knoxville park. Death had been caused by multiple wounds to the face and head, apparently by the use of a heavy blunt object. Circumstantial evidence pointed strongly to the defendant as the killer. He was seen sitting in his car near the location of the body on the night of the homicide and was also seen in his car with the victim on that night. There was evidence of homosexual or deviate sexual activity between Smith and the defendant. A nightstick of the type used by the defendant in his employment as a security guard and which was capable of inflicting the fatal wounds was found in the defendant’s automobile. This nightstick had traces of blood on it. A blood stained leaf found in the defendant’s ear matched the deceased’s blood type. Defendant’s automobile was found unlocked in a parking lot a mile or more from the defendant’s home. The defendant told conflicting stories about his activities on the night of the slaying.

At the trial the State, over the objection of the defendant, introduced into evidence color photographs, both prints and slides, which depicted the victim’s battered head and body. As noted, the defendant objected to the introduction of these photographs upon the ground that they were not relevant to any contested issue in the case and were introduced solely for the purpose of prejudicing the jury against the defendant. The defendant also renewed these objections in his motion for a new trial but did not assign the introduction of these photographs as error in the Court of Criminal Appeals. Nevertheless, that court concluded that the introduction of the photographs amounted to plain error, T.C.A., § 40-3409; Baldwin v. State, 213 Tenn. 49, 372 S.W.2d 188 (1963), which it was bound to notice and, accordingly, held that a new trial must be afforded the defendant unless the State agreed to accept a reduction of the sentence from 99 years to the minimum of 10 years provided by statute for second degree murder. This Court granted the State’s petition for certiorari to consider this single issue.

I

Traditionally, this Court has followed a policy of liberality in the admission of evidence in both civil and criminal cases, State ex rel. Smith v. Livingston Limestone Co., Tenn., 547 S.W.2d 942 (1977), including the admission of photographs. Hughes v. State, 126 Tenn. 40, 148 S.W. 543 (1912); Brown v. State, 186 Tenn. 378, 210 S.W.2d 670 (1948); Livermore Foundry & Machine Co. v. Union Storage & Compress Co., 105 Tenn. 187, 58 S.W. 270 (1900); D. Paine, Tennessee Law of Evidence § 238 (1974). This policy of liberality is often expressed in the “rule” that the admissibility of photographs lies within the discretion of the trial court whose ruling in this respect will not be overturned on appeal except upon a clear showing of an abuse of discretion. Strickland Transportation Company v. Douglas, 37 Tenn.App. 421, 264 S.W.2d 233 (1953); 29 Am.Jur.2d Evidence § 785 (1967); D. Paine, Tennessee Law of Evidence § 238 (1974). Moreover, the trend of modern authority is to vest more discretion in the trial court in this respect. Cagle v. State, Tenn.Cr.App., 507 S.W.2d 121 (1973); See: Uniform Rules of Evidence, Rules 4 and 45, National Conference of Commissioners on Uniform State Laws (1953).

Of course, before any photograph can be admitted into evidence it must be verified and authenticated by a witness with knowledge of the facts.

Once authenticity has been established relevance must be shown. We approve the following definition of relevance found in Rule 401 of the new Federal Rules of Evidence:

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” See also Uniform Rules of Evidence, Rule 1, supra.

A requirement of probability any more stringent than this would be unworkable and unrealistic.

Of course, relevance varies as the elements of the particular offense and the means employed in its commission vary. It has been declared by one court that photographs of the victim and other physical evidence are always relevant to the material facts in a homicide prosecution if the defendant pleads not guilty, Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959), but other courts pursue a more narrow analysis of the elements each side must prove and may rebut. For example, where “extreme cruelty and atrocity” constitutes one of the categories of first-degree murder, that fact is legitimately a part of the State’s case, and photographs are a proper mode of proving it. Commonwealth v. Osman, 284 Mass. 421, 188 N.E. 226 (1933). But where the basis of first-degree murder is a clear-cut case of felony homicide, there is no occasion to prove the character and extent of the wounds at all, and certainly not by inflammatory photographs. Commonwealth v. Powell, 428 Pa. 275, 241 A.2d 119 (1968).

Photographs showing the injuries of the victim are properly admitted if the defendant admits he killed the victim but seeks to show a non-criminal homicide or that the offense was of a lesser degree than murder. Where malice and intent to kill are denied, the State may prove by a photograph that greater force was used against the victim than is consistent with the defendant’s account of the facts. Wilkerson v. State, 170 Tex.Cr.R. 525, 342 S.W.2d 431 (1961). Where the accused claimed he acted in an insane frenzy, the court approved the use of photographs showing the systematic manner in which he tied up his several victims before killing them one by one. People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208 (1968).

In Cullaro v. State, Fla.App., 97 So.2d 40 (1957), photographs were held properly received to rebut a claim of self defense because they showed that there were no powder bums on the body, such as would have been inflicted had the shots been fired at close range during a struggle.

In Aleorta v. State, Tex.Cr.App., 294 S.W.2d 112 (1956), where the defendant denied stabbing the victim thirty-two times as the State charged, and contended that one Natividad had delivered the fatal blow by striking the victim on the head with a rock, photographs belying his story were shown to the jury as shedding light upon a material and controverted fact.

In cases of vehicular homicide where the state must establish criminal culpability by the degree of negligence on the part of the defendant, the observable condition of the victim may be a proper matter for the jury to consider in determining the manner and speed at which the defendant was operating his automobile. Pribyl v. State, 165 Neb. 691, 87 N.W.2d 201 (1957). See also People v. Donaldson, 8 Ill.2d 510, 134 N.E.2d 776 (1956); Price v. State, Miss., 54 So.2d 667 (1951); State v. Butler, 27 N.J. 560, 143 A.2d 530 (1958).

Photographs showing the brutally beaten body of the defendant’s twenty-one-month-old daughter were admitted to show he did more than discipline her with a small switch in Hancock v. State, 209 Miss. 523, 47 So.2d 833 (1950). And, where a crucial issue in establishing guilt was whether a particular type of flex-handled wrench found near the defendant’s home was the murder weapon, a photograph of the body showing the wound was peculiarly helpful to the jury. People v. Carter, 48 Cal.2d 737, 312 P.2d 665 (1957).

In this state, deliberation or premeditation is an element of the crime charged against this defendant, viz., first degree murder. We have held that in attempting to establish the degree of the homicide, the state may properly introduce evidence bearing on that issue. In State v. LaChance, Tenn., 524 S.W.2d 933 (1975), we observed:

“We think that the intent to kill may be inferred from the brutality of the attack.
* * * * * *
“ ‘[T]he succession of blows, the patently vicious manner of their infliction, the enormity of the cruelty and the horrendous injuries suffered provide further evidence of a wilful execution of an intent to kill.’ ” 524 S.W.2d 937, 938.

We quoted with approval from McGill v. State, 4 Tenn.Cr.App. 710, 475 S.W.2d 223 (1972):

“ ‘Concerning the weight and sufficiency of evidence to establish premeditation, and particularly with reference to thenature of the act causing death, many courts have held that deliberation and premeditation may be inferred from the manner in which the killing was committed; and that repeated shots, blows, and other acts of violence are sufficient evidence of premeditation.’ ” 524 S.W.2d at 938.

And in State v. Bullington, Tenn., 532 S.W.2d 556, 560 (1976), we held that one circumstance from which the inference of premeditation may be drawn is “repeated shots or blows inflicted upon the victim.”

We conclude, therefore, that the photographs here in issue may be considered to have passed the test of relevancy with respect to the issue of deliberation.

II

The traditional rule is said to be that photographs of the corpse are admissible in murder prosecutions if they are relevant to the issues on trial, notwithstanding their gruesome and horrifying character. People v. Jenko, 410 Ill. 478, 102 N.E.2d 783 (1951). Conversely, if they are not relevant to prove some part of the prosecution’s case, they may not be admitted solely to inflame the jury and prejudice them against the defendant. Milam v. Commonwealth, Ky., 275 S.W.2d 921 (1955).

But even relevant evidence should not be admitted if its prejudicial effect outweighs its probative value. Fed. R.Evid. 403; Uniform Rules of Evidence 45, supra.

Federal Rule 403 provides:

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

In the explanatory note to Rule 403, “unfair prejudice” is defined by the Advisory Committee as:

“An undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”

See also Haddad v. Kuriger, Ky., 437 S.W.2d 524 (1968); State v. Martinez, 92 Idaho 183, 439 P.2d 691 (1968); Thibodeau v. Connecticut Co., 139 Conn. 9, 89 A.2d 223 (1952); Moeller v. Hauser, 237 Minn. 368, 54 N.W.2d 639, 57 A.L.R.2d 364 (1952).

We regard this rule as one that is fair and just and strikes a reasoned balance between probative value and unfair prejudice; we approve it as a proper guide to be followed by our courts in both criminal and civil cases.

Cases recognizing the inherently prejudicial character of photographic depictions of a murder victim enunciate a test whereby certain factors are to be considered by the trial judge. The matters to be taken into consideration include the value of photographs as evidence, that is, their accuracy and clarity, and whether they were taken before the corpse was moved, if the position and location of the body when found is material;' the inadequacy of testimonial evidence in relating the facts to the jury; and the need for the evidence to establish a prima facie case of guilt or to rebut the defendant’s contentions. If the inflammatory nature of the photograph is thus outweighed, it is admissible.

The more gruesome the photographs, the more difficult it is to establish that their probative value and relevance outweigh their prejudicial effect. Commonwealth v. Scaramuzzino, 455 Pa. 378, 317 A.2d 225 (1974). In the presence of an offer to stipulate the facts shown in the photograph, the State’s burden of justification is often difficult to sustain. People v. Chavez, 50 Cal.2d 778, 329 P.2d 907 (1958); Poe v. Commonwealth, Ky.App., 301 S.W.2d 900 (1957). Failure of the defense to dispute the testimony that the photographs illustrate may have the same effect. People v. Falkner, 389 Mich. 682, 209 N.W.2d 193 (1973); State v. Bucanis, 26 N.J. 45, 138 A.2d 739 (1958).

In some cases, photographic evidence has been excluded because it does not add anything to the testimonial descriptions of the injuries. Archina v. People, 135 Colo. 8, 307 P.2d 1083 (en banc, 1957); Dyken v. State, Fla., 89 So.2d 866 (en banc, 1956); State v. Morgan, 211 La. 572, 30 So.2d 434 (1947). Those made during or after an autopsy are most often condemned, Kiefer v. State, 239 Ind. 103, 153 N.E.2d 899 (1958); State v. Bucanis, supra, because they present an even more horrifying sight and show the body in an altered condition and because lay jurors normally do not have the experience necessary to draw correct inferences from the appearance of internal organs. State v. Morris, 245 La. 175, 157 So.2d 728 (1963).

In many cases, the facts concerning the injuries and the cause of death may be adequately established and better explained by a pathologist. In this case, for instance, except for one aspect mentioned below, the testimony gives a far better description of the nature and extent of the wounds inflicted on the victim than the pictures do. The defense did not seriously dispute the cause of death; it sought mainly to show the good relationship of the deceased and the defendant. It did not offer any alternate theory of how the deceased met his death. Thus, the factual issue was not squarely raised in the manner of self-defense, accident or manslaughter cases. Cullaro v. State, supra; Pribyl v. State, supra; Alcorta v. State, supra.

It is true that the defense, upon cross-examination of the pathologist, Dr. Jones, elicited the testimony that the head wounds could have been made by a car running over the victim. Perhaps those pictures may have been slightly relevant to that issue. Nevertheless, their worth seems slight, especially in view of the fact that the slides were taken after the body had been moved from the scene so that the condition of the ground, which would have been highly relevant in resolving that narrow question, was not shown.

As above observed, the number of blows and the brutality of the crime was a circumstance bearing on the element of deliberation or premeditation. A case can be imagined in which a photograph could supplement the medical testimony to give a better understanding of the number of wounds inflicted and the manner in which the killing was carried out, but this was not one. The pathologist catalogued the injuries and described them in detail. He gave more information about them than the photographs do. His explanation is readily understandable without a pictorial portrayal. There is no question, from the whole of the testimony, that death was inflicted from a succession of blows to the head and other parts of the body. The mere recital of the internal injury caused by an object shoved into the anus of the victim establishes premeditation far more vividly than the photographs in issue do.

The State’s argument that the photographs are relevant to the assessment of punishment is candid but unpersuasive. Shocking and horrifying the jury emotionally does not assist them in making a reasoned determination of how serious the crime is, how much deterrence is necessary to prevent like crimes in the future, or what danger the defendant poses to society. It is precisely because of the danger that they will inflict excessive punishment that unnecessarily inflammatory evidence is kept from them. Kiefer v. State, supra; People v. Jackson, 9 Ill.2d 484, 138 N.E.2d 528 (1956). The fact that death is now an available penalty for homicide poses, in view of the existing law on that thorny subject, a strong consideration in opposition to appealing to the emotions of jurors in the assessment of punishment.

The Court of Criminal Appeals noted that the trial judge’s reasons for admitting the photographs do not appear of record. We regard this as an omission of some seriousness. Without a statement of reasons, the appellate court is constrained to some extent to second-guess the trial judge in a determination lying within his sound discretion. See People v. Ford, 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892 (1964). There is authority for reversing a conviction for failure of the trial judge to weigh the probative value of photographs against their prejudicial effect. The record should show the factors considered by lower courts and their reasons for receiving the evidence.

On balance we conclude, as did the unanimous Court of Criminal Appeals, that the prejudicial.effect of these photographs far outweighs their probative value. Therefore, it was error for the trial court to admit the photographs in evidence.

However, it does not follow that the Court of Criminal Appeals was correct in reversing the judgment of the trial court. T.C.A., § 27-117, provides:

“No verdict or judgment shall be set aside or new trial granted by any appellate court, in any civil or criminal case, on . account of the improper admission ... of evidence . . ., unless, in the opinion of the appellate court to which application is made, after an examination of the entire record in the cause, it shall affirmatively appear that the error complained of has affected the results of the trial.”

Following an examination of the entire record in this ease, we are of the opinion that it does not affirmatively appear that the error in admission of the photographs has affected the results of the trial. The circumstances of this homicide, aside from the photographs, are so brutal and horrible that they fully explain and support the verdict of guilty and the severity of the sentence.

Accordingly, the judgment of the Court of Criminal Appeals is reversed and that of the trial court reinstated. Costs are taxed to the defendant. The cause is remanded to the trial court for such further proceedings as may be appropriate.

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


author: FONES, Justice.

text:
    D. L. SIMPSON and Hartsville Livestock Market, Appellants, v. Charlie SATTERFIELD, Appellee.
    Supreme Court of Tennessee.
    April 24, 1978.

      James A. Donoho, Donoho & Taylor, Hartsville, for appellants.
    R. K. Witcher, Jr., Lafayette, for appel-lee.
   OPINION

FONES, Justice.

Defendant Simpson, doing business as Hartsville Livestock Market, appeals from a workmen’s compensation award of eighty-three weeks temporary total disability, and $5,000 medical benefits.

The only assignment of error is as follows:

“It was error to allow recovery for temporary total disability and medical expenses because there was no expert medical testimony to show medical causation between the injury and the loss.”

On Saturday, August 8, 1970, plaintiff, Charles Satterfield, was employed to work at the Hartsville Livestock Market. One of his duties was “separating cattle and driving them in and out.” Plaintiff testified that there were four black Angus cattle in the stall next to the scale gate, when three white Charoláis cattle belonging to another owner were driven into that stall by the use of a “hot stick” which agitated the white cattle; that in trying to separate and drive the four Angus onto the scale to be weighed, one of the Charoláis kicked him in the stomach with both hind feet. Plaintiff was rendered unconscious and promptly taken to the hospital in an ambulance. On Sunday, August 9, 1970, an operation was performed on his stomach.

No medical testimony was presented by plaintiff or defendant. Plaintiff testified that he spent three weeks in the hospital at Hartsville followed by four weeks in the hospital at Nashville; that while he could not describe the nature of the operation on his stomach, an infection developed and that at one time they had seven tubes in him “to draw poison out”; that after release from the hospital he was seen by the doctor for more than a year, at first twice a week, then once a week, and finally every month; that he was not able to return to work until June, 1972.

Plaintiff’s wife testified about his hospitalization and that plaintiff was not able to work when he did return to another job. Before she could supply any further details, the trial judge interrupted her testimony with these comments:

THE COURT: I don’t think there’s really any contest really to the fact that he didn’t go back to work for eighteen (18) months to two (2) years.
THE COURT: ... I rather assume that he was rather accurate about the hospitalization and about when he went back to work, and I don’t think that’s any contest. That’s not any issue at all. I don’t know how he got back to work that quick from the operations and things the fellow had. So you needn’t to recover [sic] all that again because I think there’s no contest. They don’t agree to it. They don’t admit it, but they don’t deny it. I mean they don’t know anything about that, they say.

Defendant did not contradict or attempt to qualify the statement of the trial judge and Mrs. Satterfield’s testimony was terminated. The issues litigated in the trial court, but not in issue here, were (1) whether the stockyard employed five or more persons and (2) whether H. H. Mitchell was a partner in its operation.

The trial judge found that plaintiff had incurred medical expenses totaling $9,336.71 as a result of the injury suffered on August 8, 1970, while in the course and scope of employment by defendant.

Defendant relies upon a number of cases wherein this Court has said that expert medical testimony to establish medical causation and permanency of an injury was required, in all but the most obvious situations. Defendant cites Employers Ins. Co. v. Heath, 536 S.W.2d 341 (Tenn.1976); Washington County Brd. of Educ. v. Hartley, 517 S.W.2d 749 (Tenn.1974); Tom Still Transfer Co. v. Way, 482 S.W.2d 775 (Tenn.1972); see also American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643 (1965); Magnavox Co. v. Shepherd, 214 Tenn. 321, 379 S.W.2d 791 (1964). But the issue under consideration in those cases was the proof necessary to establish a permanent disability, either partial or total. There is no claim made in this case for permanent disability, partial or total.

Redmond v. McMinn County, 209 Tenn. 463, 354 S.W.2d 435 (1962), contains an extensive analysis of temporary total disability. After noting that our statutes classify compensable disabilities into four distinct classes, temporary total disability, temporary partial disability, permanent partial disability and permanent total disability, the Court said:

“Each of these four kinds of disability is separate and distinct and is separately compensated for by different methods provided by the several sub-sections of § 50-1007; and each of such provisions is independent and unrelated. Wilkinson v. Johnson City Shale Brick Corp., 156 Tenn. 373, 382, 299 S.W. 1056, 2 S.W.2d 89; Clayton Paving Co. v. Appleton, 163 Tenn. 27, 39 S.W.2d 1037; Liberty Mut. Ins. Co. v. Maxwell, 164 Tenn. 1, 46 S.W.2d 67; Griffith v. Goforth, 184 Tenn. 56, 66, 195 S.W.2d 33.
“Under statutes like ours, ‘temporary total disability’ refers to the injured employee’s condition while disabled to work by his injury and until he recovers as far as the nature of his injury permits; and it is separate and distinct from any of the other four kinds of disability. Jackson v. Bethlehem-Fairfield Shipyard, Inc., 185 Md. 335, 44 A.2d 811; Vishney v. Empire Steel and Iron Co., 87 N.J.L. 481, 95 A. 143.” 354 S.W.2d at 437.

Where the injury suffered by the employee results in a permanent disability, the period of temporary total disability is “cut off” when the employee has reached his maximum recovery. E. g. Gluck Brothers, Inc. v. Coffey, 222 Tenn. 6, 431 S.W.2d 756 (1968).

It is clear, therefore, that to make out a prima facie case of entitlement to temporary total disability, an employee must prove that he was (1) totally disabled to work by a compensable injury; (2) that there was a causal connection between the injury and his inability to work; and (3) the duration of that period of disability. Temporary total disability benefits are terminated either by the ability to return to work or attainment of maximum recovery.

In McKenzie v. Campbell and Dann Manufacturing Co., 209 Tenn. 475, 354 S.W.2d 440 (1962), a workmen’s compensation case, the Court said:

“The rule in this State is that a lay witness may testify to his own physical condition or that of another person provided that the witness first states the detailed facts and then gives his opinion or conclusion. Norton v. Moore, 40 Tenn. 480; Stephens v. Clayton, 22 Tenn.App. 449, 124 S.W.2d 33; Hamlin & Allman Iron Works v. Jones, 200 Tenn. 242, 292 S.W.2d 27.” 354 S.W.2d at 442.

In Magnavox Co. v. Shepherd, supra, Mr. Justice White writing for the Court said:

“While it is true that lay testimony, including that of the claimant, is of probative value in establishing such simple matters as the existence of pain, its location, petitioner’s inability to work, etc., there are areas in which lay testimony is • obviously incompetent. See Fidelity and Casualty Co. of New York v. Treadwell, 367 S.W.2d 470, 474 (Tenn.1963). (Emphasis added.) 379 S.W.2d at 792.

It is clear that the testimony of an employee, and other lay witnesses who first establish a proper factual foundation, may be admitted on the issue of the employee’s inability to work and may be sufficient to establish that fact without expert medical testimony.

Where the nature of the injury and the result produced thereby as testified to by lay witnesses is such that it is evident to the lay mind based upon the common knowledge and experience of mankind that a causal connection exists between the injury and employee’s inability to work, no expert medical testimony is required. On the other hand, where the nature of the injury and the resulting circumstances do not in and of themselves supply the element of causal connection when tested by the common knowledge and experience of mankind, expert medical testimony is necessary.

Causal connection is clearly supplied by the facts of this case. Plaintiff, who denied any prior stomach trouble was kicked in the stomach by both hind feet of a bovine animal large enough for slaughter, rendered unconscious and promptly hospitalized and an operation performed on the stomach area approximately twenty-four hours later, with recovery therefrom hampered by extensive infection. These facts, prima facie establish a causal connection between the injury and plaintiff’s temporary incapacity to work. No evidence to the contrary was adduced by defendant nor was the duration of the period of disability as testified by plaintiff and his wife disputed.

The trial judge terminated the period of temporary total disability approximately two months before the time plaintiff and his wife testified he was able to return to work and since there is material evidence to support a longer period we are bound by the finding of the trial judge.

Affirmed. Costs adjudged against defendant.

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


author: NEARN, Judge.

text:
    CONTINENTAL LEASING CORPORATION OF MEMPHIS, Alta Baer Dickey Wood, E. Oliver Fowlkes III, Administrators of the Estate of Bert G. Dickey, Jr., Deceased, and Union Planters National Bank of Memphis, Executor of the Estate of Bert G. Dickey, Appellees, v. ECONOMY LEASING CO., LTD., Economy Finance Corporation, Indianapolis Morris Plan Corporation, C. R. Weir and Co., and U. S. Aviation Underwriters, Inc., Appellants.
    Court of Appeals of Tennessee, Western Section.
    Aug. 17, 1977.
    Certiorari Denied by Supreme Court April 10, 1978.

      Max Shelton, Memphis, for appellants.
    Max D. Lucas, Jr., Memphis, for appel-lees.
   NEARN, Judge.

The issue of in personam jurisdiction is determinative of this appeal.

Indianapolis Morris Plan Corporation, an Indiana corporation with offices in Indianapolis, is a subsidiary of Economy Finance Corporation, also an Indiana corporation located in Indianapolis. These two entities have interlocking directors and officers, none of whom reside in Tennessee. The record shows no Tennessee stockholders. The defendant lessor, Economy Leasing Company, Ltd. was a limited partnership organized under the laws of Florida with principal offices therein. Hereinafter, they will be referred to as Morris Plan, Economy Leasing and Economy Financing.

The plaintiff Continental Leasing Corporation, in defiance of its name, is not a corporation, but was a partnership composed of Bert G. Dickey, Jr. (now deceased) and Fred Hooper. Both Dickey and Hooper were residents of the State of Arkansas. Continental had an office in Memphis, Tennessee in the M & M Building. Whether it was its principal office we are not sure. The complaint says it was, the answer denies it and demands strict proof. We have no proof before us on the issue, strict or otherwise.

The Tennessee defendant C. R. Weir & Company is a Tennessee insurance agent who, at the request of Bert G. Dickey, Jr., caused a policy of all risk hull insurance on one Beechcraft airplane to be issued through U. S. Aviation Underwriters, Inc. of Georgia, naming Economy Leasing as the insured.

An analysis of the facts shows that Dickey, a resident of Arkansas and a well to do Arkansas farmer with large land holdings in Arkansas, decided to acquire a new aircraft from Tulsair Beechcraft in Tulsa, Oklahoma via an Arkansas dealer. For tax reasons, Dickey determined that it was better to straight lease the aircraft and charge it off to his farming enterprises. Dickey then authorized Hooper, also an Arkansas resident and Dickey’s partner in what can best be termed a finance brokerage firm, to obtain advantageous lease financing of the desired aircraft. The financial brokerage partnership (Continental) which had an office in Memphis, acting through Hooper, corresponded with Morris Plan seeking financing for Continental’s “customer”. Hooper, using the stationery of Continental, contacted Morris Plan stating that Continental represented a wealthy prospect for an airplane who did not want to purchase same, but wanted to straight lease it with no option to purchase. Hooper, on behalf of Continental’s “customer” went to Indianapolis where the final details were worked out and it was agreed that Economy Leasing would purchase the airplane with aid from a loan from Economy Finance. Economy Leasing was then to lease the airplane to Dickey and Continental Leasing was to receive a one and one-half percent commission. Because Dickey and his father jointly owned the family farming enterprise, Economy Leasing required that the father also execute. the lease. Continental is also named as a lessee. The lease contract was prepared in Indianapolis and executed by all lessees in the State of Arkansas, except Continental which executed same in Memphis by Hooper affixing his name thereto as “partner” in Continental. The lease was subsequently accepted in Florida by the lessor. The lease covered an aircraft that originated in Oklahoma, was delivered in Arkansas, to be hangered and licensed in Arkansas, to be used and flown by an Arkansas resident and which aircraft ultimately crashed and burned in a wooded area in the State of Mississippi killing an Arkansas resident whose estate is being administered in the State of Arkansas.

The only real party seeking relief in this cause is the Estate of Bert G. Dickey, Jr., on the theory that Dickey had acquired an equity interest in insurance proceeds received by Economy Leasing from the aircraft insurer for the destroyed aircraft. We need not go into the merits of the claim, as we are of the opinion that the Chancellor should have allowed the plea in abatement as to the Indiana and Florida businesses as we are of the opinion the Trial Court was without in personam jurisdiction over those defendants.

Unlike the Federal Court, diversity of citizenship does not confer jurisdiction upon Tennessee Courts. In this instance in per-sonam jurisdiction over non-residents is acquired by T.C.A. § 20-235, or not at all. Specifically, jurisdiction in this case is contingent upon satisfaction of the requirement of subsection (a) thereof. The other subsections are not applicable. Therefore, the Tennessee Courts would have jurisdiction for a “claim for relief arising from: (a) The transaction of any business within the state.”

In our opinion, the cases of Darby v. Superior Supply Company (1970) 224 Tenn. 540, 458 S.W.2d 423 and Budget Rent-A-Car v. Car Services (1971) 225 Tenn. 342, 469 S.W.2d 360, were ones with facts far stronger than the instant case in favor of jurisdiction, but the Supreme Court held such facts would not confer jurisdiction upon Tennessee Courts. The defendant in Darby, had, through his servant, acted in this state relative to a completed contract with a Tennessee citizen. In Budget Rent-A-Car the defendant had been present in the state on five separate occasions to negotiate with Tennessee citizens. In this case the true lessees signed and acknowledged the lease in Arkansas. The aircraft was to be invoiced and paid through a business concern located in West Memphis, Arkansas. The last act to create the lease occurred when it was accepted by Economy Leasing in Florida. We do not believe that even the dissenting opinion in Darby would afford any basis for conferring jurisdiction over the foreign defendants in this case. It seems to us that the Tennessee contacts in this matter may, at the most, rise to a scintilla of a contact, but never reach “the necessary minimum contacts” required. Even the dissent in Darby argued that jurisdiction should not be allowed if a “sense of fair play” is offended. Our “sense of fair play” is offended in this case by dragging the non-resident defendants to the State of Tennessee. Not that they may not be dragged elsewhere, but not to Tennessee.

The real parties to this suit are the estate of an Arkansan, and Indiana and Florida business entities. Neither this state nor its citizens have the slightest interest in the outcome of this lawsuit.

Over 170 years ago, Mr. Justice White, speaking for our Tennessee Supreme Court, in the case of Avery v. Holland (1806) 2 Tenn. 71, made certain pertinent observations, the persuasiveness of which has not been diminished by the passage of time and we feel they are peculiarly applicable to this case:

[I]f it appears upon the face of the pleadings that both of the litigant parties are foreigners and a foreign contract, we ought not to interpose. By the nature of all governments, courts were constituted to administer justice in relation to their own citizens; and not to do the business of citizens or subjects of other States. The judges of their own State are employed, and paid for that purpose.
To encourage the resort of foreigners to our courts would be doing injustice to our own citizens who have business here to be attended to.

The result is that the judgment below is reversed and the suit is dismissed as to the Indianapolis Morris Plan Corporation, Economy Leasing Corporation and Economy Finance Corporation and all costs are adjudged against the Estate of Bert G. Dickey, Jr.

Done at Jackson in the two hundred and second year of our Independence and in the one hundred and eighty-second year of our Statehood.

CARNEY, P. J„ and MATHERNE, J„ concur.

      . Reading somewhat between the lines; it would seem that Hooper acted under the name of Continental Leasing Corporation of Memphis (which was really a partnership of Hooper and Dickey) usually as a financial agent for Dickey, an undisclosed partner, in finding suppliers of money for Dickey’s business acquisitions and would obtain a “finders fee” from the furnisher of funds to Dickey for bringing the matter to the attention of the lender or financier. Presumably, Dickey and Hooper quietly split the “finders fee”.


author: O’BRIEN, Judge.

text:
    Bobby D. FRANKS and James Thompson aka Dwight Matthews, Petitioners, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    Dec. 7, 1977.
    Harold D. Archibald, Asst. Public Defender, Shelby County, Memphis, for petitioners.
    Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, for respondent.
   O’BRIEN, Judge.

OPINION

This matter came on to be heard before a full panel of the Court sitting at Jackson on November 14th, 1977, by petitions for cer-tiorari and supersedeas to Division II of the Criminal Courts of Shelby County, Tennessee.

The petition alleges that the Criminal Court Judge acted illegally in granting a petition for certiorari and supersedeas to the Municipal Court of Memphis, Tennessee, and in ruling that the judge of that court acted illegally and exceeded his authority in requiring a court reporter, paid at State expense, to attend a preliminary hearing.

The petition shows that petitioners came before the Judge of Division VI of the Memphis Municipal Court for a preliminary hearing on a number of criminal charges. Through the office of the Public Defender motions were filed requesting that the testimony of witnesses appearing at the preliminary hearing be reduced to writing through the services of a court reporter to be paid at State expense. The Municipal Court Judge issued an order directing the State to have a court reporter present to record the testimony of the witnesses. The State, through the office of the District Attorney General for the Fifteenth Judicial Circuit of Tennessee filed the petition for writ of certiorari and supersedeas in the Criminal Court. The matter was heard on a motion to dismiss the petition in Criminal Court and resulted in the order set out above. The petition in this Court included requests that the District Attorney General for the Fifteenth Judicial Circuit be enjoined from submitting the charges against petitioners to the Grand Jury of Shelby County for indictment, and for an order directing the Municipal Court of Memphis to conduct an immediate preliminary hearing with a court reporter present to be paid at State expense as directed by the judge of that court.

Petitioners assert that the provisions of T.C.A. Sec. 40-1115 are mandatory. That the statute specifically allows the magistrate discretion in the method of compliance with its provisions and that it is within his inherent power to direct the State to provide a court reporter at State expense. It is further asserted that the Criminal Court Judge acted beyond his jurisdiction in issuing the writs of certiorari and supersedeas. They say such authority is not conferred on courts of limited jurisdiction but only on courts of general jurisdiction as provided in T.C.A. Sec. 27-804. It is argued that the Criminal Courts of Shelby County were organized by the Public Acts of 1869, Chapter 28, which did not confer the authority to grant extraordinary relief.

The petition must be denied. We do not rule on the legality of the acts of the Municipal Court Judge. These are matters for disposition on direct appeal, as are the acts of the Circuit Judge in the issuance of the writs to the Municipal Court. The proper procedural course to obtain a ruling on the legality of the actions of the Municipal Court Judge was by way of certiorari. There was no other route of appeal available from the order of that court. T.C.A. Sec. 16-512 vests appellate jurisdiction in the Circuit Court of all suits and actions, of whatsoever nature, unless otherwise provided. (underlining added) instituted before an inferior jurisdiction, whether brought by appeal, certiorari, or in other manner prescribed by law. T.C.A. Sec. 40-408 vesting jurisdiction of small offenses in magistrates, and T.C.A. Sec. 40-426, providing for appeals from General Sessions Court, each mandate that appellate review is to the Criminal Court having criminal jurisdiction in the county. Reason and logic dictate that jurisdiction of an appeal of the nature involved here would also vest in the criminal courts of the county. A study of the Public Acts of 1869-70, Chapter 28, does not sustain petitioners assertion that the authority to grant extraordinary relief was not conferred by the Act. We hold otherwise.

The proper mode of procedure in this case would have been by motion to dismiss the indictments, (T.C.A. Sec. 40-2301), for failure to afford a proper preliminary hearing, (T.C.A. Sec. 40-1131), and in event of conviction, to assign as error on direct appeal any adverse action of the trial court on the motion to dismiss. The ingenuity of trial counsel to formulate and postulate technicalities makes it a practical impossibility to entertain by certiorari any and every adverse interlocutory ruling by an inferior court.

The petitions for certiorari and superse-deas are dismissed. The matter is remanded to the trial court for such other and further proceedings as may be warranted in accordance with this opinion, including a hearing on a motion to dismiss for failure to afford a proper preliminary hearing if an application is duly made.

TATUM and BYERS, JJ., concur.


author: DAUGHTREY, Judge.

text:
    Horace Wayne LAIRD, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 9, 1978.
    Certiorari Denied by Supreme Court May 1, 1978.

      Hughie Ragan, Jackson, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, James G. Woodall, Asst. Dist. Atty. Gen., Jackson, for appellee.
   OPINION

DAUGHTREY, Judge.

The defendant-appellant, Horace Wayne Laird, was charged with escaping from the Madison County Workhouse, where he had been confined on a felony conviction for forgery. The jury found Laird guilty and sentenced him to serve an additional eleven months and twenty-nine days on the escape conviction. On appeal the defendant raises multiple assignments of error, the most serious of which concern (1) the sufficiency of the evidence to support the verdict, (2) the admissibility of evidence of other crimes committed by the defendant, (3) the exclusion of certain testimony offered by the defendant’s wife and mother, and (4) the trial court’s instructions to the jury. Two other assignments involve the trial judge’s discretionary rulings in limiting voir dire and in announcing sequestration of the jury. We find no abuse of discretion as to those assignments, nor any reversible error in connection with the other assignments, and we therefore affirm the conviction.

The evidence in the record, as accredited by the jury’s verdict, establishes that the defendant was assigned to a county road work truck, from which he jumped after the driver slowed down to make a sharp turn. A guard and three other prisoners were also in the back of the truck at the time. Regaining his balance after he landed in the road, the defendant ran quickly from the area; he was recaptured four days later, while hiding behind a chimney in the attic of his home. Another workhouse prisoner testified that earlier that same day the defendant had expressed a desire to be with his wife and had said that he was going to run away.

Testifying in his own defense, the defendant denied that he intended to escape and claimed that he fell off the truck accidentally. He said that he ran after falling because he was afraid he would be charged with escape, and that he did not turn himself in because he was “in shock” and had received information from his wife which made him “scared [he] would be shot.”

The jury rejected the defendant’s theory of the ease, and we are unable to say that the evidence preponderates against their verdict, as it must in order to support reversal on appeal based on the sufficiency of the proof at trial. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). We therefore overrule the related assignment of error.

The defendant next attacks the introduction of evidence of two prior convictions for escape from the county workhouse that was elicited from him on cross-examination. In effect, his attorney objected to this evidence on the grounds that it was being adduced solely for propensity purposes, in violation of the general rule which prohibits the use of evidence of bad character in order to produce an inference that the accused acted in conformity with that bad character on the occasion in question and that he is, therefore, guilty of the crime charged. See E. Cleary, McCormick on Evidence § 190 (2d ed. 1972); D. Paine, Tennessee Law of Evidence § 3 (1974); Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963).

In response to this objection, the prosecutor countered that the evidence was being offered “only as it affects [the defendant’s] credibility.” The trial judge made no specific ruling, saying only that the prosecution could not “go into details of the other escapes.” Moreover, there was no limiting instruction given the jury concerning the appropriate use of this testimony. On the other hand, there was also no request for such an instruction nor any contemporaneous objection to its omission.

In his brief, the defendant now contends that the testimony concerning his prior convictions violated the rule in State v. Morgan, 541 S.W.2d 385 (Tenn.1976), a recent opinion of our Supreme Court which governs the admissibility of prior convictions and other specific bad acts offered to impeach. The State argues in response that the Morgan rule is not applicable, because the evidence in question is admissible for substantive purposes as an exception to the general prohibition against the use of character evidence. See generally Collard v. State, 526 S.W.2d 112 (Tenn.1975).

We think it was error for the trial judge to fail to announce the specific reason for his apparent ruling of admissibility, not only because the omission makes appellate review difficult, but also because identification of the reason for this particular ruling was necessary to frame the appropriate limiting instruction that should have followed the ruling. As the defendant belatedly points out in his brief, no limiting instruction was given. However, the blame for both these errors must be laid at the defendant’s feet, because he made no request for a specific ruling nor any objection to the failure to give a limiting instruction, either at the time the evidence was elicited or in his motion for a new trial.

If the evidence in question was relevant solely for the purpose of impeachment, it would clearly run afoul of the substantive and procedural dictates of Morgan. 541 S.W.2d at 388-90. Among other things, the record fails to show whether the convictions were for felonies or misdemeanors and of what vintage; nor was there any determination by the trial court that the probative value of this evidence outweighed any prejudicial effect it might have on the jury. But any error in this regard must be viewed as cured by the fact that this evidence was plainly admissible as substantive evidence to rebut the defense of accident or mistake and to prove the defendant’s intent. It thus qualifies as an exception to the prohibitory rule discussed above. See Collard, supra, 526 S.W.2d at 114; Tennessee Law of Evidence, supra at § 6; McCormick on Evidence, supra at § 190.

Had the evidence been ruled admissible on the proper ground, the jury should then have been told of the appropriate limitation on its use. But we think any error by omission in this regard is harmless here, because we do not believe that it affected the outcome of the trial. See T.C.A. § 27-117. We therefore overrule the assignment of error related to the evidence of the defendant’s prior convictions.

The defendant next raises yet another evidentiary question, arguing that the trial court improperly excluded testimony offered by the defendant’s wife and mother that on the day of the defendant’s escape they were told by a local deputy sheriff that the defendant “is going to get hurt [because] we’ve got orders to shoot.” The defendant expected to show that these two witnesses repeated this statement to him, for the purpose of establishing fear on his part and thereby explaining his failure to surrender to local officials.

The trial judge excluded this evidence as hearsay. We conclude that this ruling was incorrect.

Hearsay is defined as “testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value on the credibility of the out-of-court asserter.” Bennett v. State, 530 S.W.2d 788, 792 (Tenn.Crim.App.1975), quoting E. Cleary, McCormick on Evidence § 225 (2d ed. 1972). Of course, the out-of-court declaration in this case was offered not to prove the truth of its content, i. e. that the officers intended to or would shoot the defendant, but instead was relevant (if at all) to show its effect on the hearer, i. e. a state of fear induced by the fact that the statement was made, without regard to its truth or falsity. Consequently, the assertion was non-hearsay. Bennett v. State, supra, 530 S.W.2d at 793; McCormick § 249; Paine, § 48. The only legitimate question here is not the trustworthiness of the de-clarant, but the trustworthiness of the two witnesses who heard the declaration, that is, their ability to perceive (and transmit) the statement accurately. These witnesses were present in court, under oath, and subject to cross-examination on this issue, as was the defendant, to whom the statement was conveyed. It was, therefore, error to exclude the proffered testimony. However, we do not think the error was reversible because of the dubious probative worth of this evidence and the extreme unlikelihood that its exclusion affected the outcome of the trial. See T.C.A. § 27-117. We therefore overrule the related assignment of error.

Finally, the defendant assigns as error the trial court’s instruction to the jury that “[i]f the Defendant was in the workhouse on a conviction of felony and escaped from a work crew, he would be guilty of the charge set out.” The defendant made a contemporaneous objection to this portion of the jury charge in writing, on the ground that it was not a complete and accurate charge of the law. However, defense counsel submitted no special request setting out what he deemed to be an appropriate supplemental instruction on this point.

While we agree that the charge in question might have been more detailed, it is certainly not legally incorrect. T.C.A. § 39-3807 provides:

If any person confined in a county workhouse or jail upon any charge of or conviction of a criminal offense constituting a felony shall escape or attempt to escape therefrom he shall be guilty of a felony

This court has previously held that escape from a county road work detail constitutes a violation of T.C.A. § 39-3807. In Donald L. Strickland v. State of Tennessee, Court of Criminal Appeals, released at Jackson, November 6, 1975 (unreported), the Court said:

. In our view, it is of no significance that the actual escape took place outside the confines of the walls of the Penal Farm. It is sufficient that the defendant escaped from the custody of the Shelby County Penal Farm.

The Strickland court, quoting from 30A C.J.S. Escape § 5c, noted that:

the crime of escape is not limited to escape from the prison walls, but may be from whatever bounds the prisoner has been assigned .
Likewise, escape may be committed by the prisoner’s departure from the custody of an officer; and the crime may be committed by a prisoner who escapes while at work outside the walls of a penal institution under the surveillance of guards .

We hold that the defendant’s intentional and unauthorized departure from the work crew constituted an escape for purposes of T.C.A. § 39-3807. It follows that the jury instruction in question was not legally incorrect, and the related assignment of error is therefore overruled.

The judgment of the trial court is affirmed.

WALKER, J., and ARTHUR C. FA-QUIN, Jr., Special Judge, concur.


author: PER CURIAM.

text:
    T. C. STRICKLIN, Petitioner, v. UNITED STATES FIRE INSURANCE COMPANY, Respondent.
    No. B-7166.
    Supreme Court of Texas.
    March 29, 1978.
    Rehearing Denied May 3, 1978.
    Carrington, Coleman, Sloman, Johnson & Blumenthal, Robert H. Mow, Jr., Corbet F. Bryant, Jr. and William E. Hartsfield, Dallas, for petitioner.
    Larry L. Gollaher, Dallas, for respondent.
   PER CURIAM.

ON APPLICATION FOR WRIT OF ERROR

The court of civil appeals correctly held that the trial court’s instruction on the measure of damages was harmful error. 556 S.W.2d 575. We accordingly refuse the application for writ of error, no reversible error. Tex.R.Civ.P. 483.

We do not reach the question of the effect of the mortgagee protection provision of the Texas Insurance Code, Tex.Ins.Code Ann. art. 6.15, on the facts of this case; furthermore, we expressly reserve that question for a later date. We disapprove the holding of the court of civil appeals that plaintiff Stricklin’s summary was inadmissible and expressly disavow the court’s assertions that the record in this case does not show the underlying records’ qualifications under the Texas Business Records Act, Tex. Rev.Civ.Stat.Ann. art. 3737e.