author: STERNBERG, Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ruth DILLON et aL, Appellees.
    No. 74-664.
    Court of Appeals of Kentucky.
    Rendered: June 27, 1975.
    Jim D. Robinson, Gen. Counsel, Asst. Atty. Gen., Dept, of Highways, Frankfort, C. E. Skidmore, Lexington, for appellant.
    C. Kilmer Combs, Kelsey E. Friend Law Firm, Pikeville, W. W. Burchett, Prestons-burg, for appellees.
   STERNBERG, Justice.

This condemnation case arose from the acquisition of property for the reconstruction of U. S. Highway 23 between Prestons-burg and Pikeville, in Floyd County, Kentucky. The appellant challenges the jury award of $188,000 for the property taken as being excessive.

The property involved is a tract containing 9.1 acres lying between the old U. S. Highway 23 and the low water mark of the Levisa Fork of the Big Sandy River. The tract fronts on the road for approximately 2,700 feet. At the south end of the tract there is 70 feet between the highway and the low water mark and a difference in elevation of 40 feet. As one proceeds north, after the first 1,000 feet, the depth of the property constantly increases to a maximum depth of 430 feet. At the north end of the tract the old highway is 70 feet above the back edge of the property. Also, the river bank curves away from the old road on the northern end so that there are approximately two to two and one-half acres of level land before the property slopes down toward the river. Improvements on the property included a one-room office building, a well, a toilet, and a graveled parking area. The condemned property was used as a site for selling monuments.

The Commonwealth has taken 6.8 acres, including the improvements and all but one-half acre of the level land. The remaining 2.3 acres front on the new road for a distance of 530 feet. The remaining tract is still being used for selling monuments.

The mineral rights had been severed from the property. An agreed judgment in the amount of $3,359.20 was entered for those rights.

A jury trial was held to determine the value of the surface interest which was taken. The evidence admitted at the trial as to the before and after values, together with the jury verdict, is summarized as follows:

The trial resulted in a judgment of $188,000 for the appellees. After appellant’s motion for a new trial was overruled, this appeal was taken.

The appellant claims that the jury verdict is excessive and unsupported by sufficient probative evidence.

The facts reveal that appellees purchased this 9.1-acre tract, without mineral rights, on November 30, 1967, for $10,000.

There is nothing in the record which indicates that the price was not the fair market value of the property at that time. In the absence of any showing that this price was not established by a voluntary, arms-length transaction, this court will assume that $10,000 was the fair market value of the tract at that time. Appellees improved the property by building a one-room office building, a well, an outdoor toilet, and a graveled parking lot, which would nominally enhance the value of the property. On September 28, 1970, the Commonwealth took 6.8 acres of the tract. All of the improvements were located on the portion taken.

Weddington, appellees’ first appraisal witness, testified that he knew of no changes in the neighborhood in the three years that appellees had owned the property. Childers, the second appraisal witness for appellees, testified that be believed the demand for land in the area had not substantially changed in the ten-year period preceding the trial. These conclusions certainly eliminate the probative value of the conclusion by the appellees’ witnesses that the tract had increased in value by 22 times over a three-year period to a value of $220,-000 at the time of the taking.

A properly qualified witness may testify as to before and after values without stating any factors that he took into consideration, and his testimony will have some probative value. Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472. In this case, however, the evidence that the property sold for $10,000 only three years earlier, under substantially similar market conditions, strips the probative value from the bare testimony of the landowners’ witnesses.

A reviewing court has the power to set aside a verdict on the ground that it is not sufficiently supported by the evidence. Commonwealth, Department of Highways v. Tyree, supra. In this case the verdict suffers from this defect.

The judgment of the Floyd Circuit Court is reversed and a new trial ordered.

All concur.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    Douglas Anthony HOLT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 6, 1975.
    Grant M. Helman, Kurt Berggren, Louisville, Dudley P. Spiller, Jr., Washington, D. C., for appellant.
    Ed W. Hancock, Atty. Gen., Raymond M. Larson, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAYTON, Justice.

Douglas Anthony Holt appeals from an order denying him post-conviction relief under RCr 11.42. We affirm.

On November 11, 1972, Holt was charged with willful murder and armed robbery. At the time he was 17 years of age and thus within the purview of KRS 208.020.

On January 11, 1973, after an evidentiary hearing the Juvenile Division of the Jefferson County Court entered a judgment waiving jurisdiction to the Jefferson Circuit Court, Criminal Division, under the authority of KRS 208.170.

On February 6, 1973, Holt was indicted for murder and armed robbery of H. De-vaughn Pratt.

Holt appealed to the Jefferson Circuit Court challenging the validity of the juvenile court order waiving jurisdiction. The appeal was denied May 10, 1973. Holt further challenged the waiver order first by seeking to quash the indictment and then by applying to this court for a writ of prohibition to prohibit his prosecution in the Jefferson Circuit Court. These requests for relief were denied April 26, 1973, and June 12, 1973, respectively.

On October 2, 1973, with counsel present, Holt pleaded guilty to charges of voluntary manslaughter and armed robbery and was sentenced to 21 years on each charge, with the sentence on the armed robbery charge being withheld on condition that he remain on good behavior for five years after his release from the penitentiary on the voluntary manslaughter sentence.

Holt sought post-conviction relief under RCr 11.42 and his motion was denied June 21, 1974. It is from the order denying that motion that Holt appeals.

This appeal complains of the propriety of the order waiving jurisdiction. Appellant asserts that he was denied his right to appeal the waiver order of the juvenile court. This contention is clearly refuted by the record. Appellant was granted an appeal to the Jefferson Circuit Court. An order entered by the Jefferson Circuit Court on May 10, 1973, stated:

“This case coming on, and having been heard, attorney for the defendant being present, Commonwealth Attorney Edward Clark being present, and arguments having been presented, it is hereby ordered and adjudged that the appeal of the defendant from the judgment of the Jefferson County Court, Juvenile Division be and hereby is overruled.”

Further, it is appropriate to note that KRS 208.380(3) provides:

“Any party aggrieved by the appellate decision of the circuit court made pursuant to subsection (1) may by right appeal to the Court of Appeals in the manner provided by the Rules of Criminal Procedure. . . . ”

Appellant did not directly appeal to this court the May 10, 1973, judgment of the Jefferson Circuit Court overruling his appeal. Neither did he directly appeal the final judgment of conviction entered October 2, 1973.

Appellant further asserts that his constitutional rights of due process under the Fourteenth Amendment to the U. S. Constitution were violated and that the requirements of KRS 208.170 were circumvented by the failure of the juvenile court to state in the order of January 11,1973, reasons for its waiver of jurisdiction. We are not unmindful of the holdings in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); Whitaker v. Commonwealth, Ky., 479 S.W.2d 592 (1972); Hopson v. Commonwealth, Ky., 500 S.W.2d 792 (1973); Risner v. Commonwealth, Ky., 508 S.W.2d 775 (1974); and Hubbs v. Commonwealth, Ky., 511 S.W.2d 664 (1974), all of which relate to the requirement that the record of the juvenile court waiving jurisdiction should set forth reasons for the waiver.

We are of the opinion that the complaints here asserted could and should have been presented timely pursuant to RCr 12.54. They were not. Appellant litigated the alleged errors and did not raise the issues by a properly prosecuted appeal; therefore, he may not now be heard any more than if this were a second application for post-conviction relief which contained complaints that could have been raised in an initial application. See Hampton v. Commonwealth, Ky., 454 S.W.2d 672 (1970). RCr 11.42 is not a substitute for appeal. Harris v. Commonwealth, Ky., 441 S.W.2d 143 (1969).

We have reviewed the record and find that all other issues raised by appellant are without merit.

The judgment is affirmed.

All concur.


author: COOPER, Justice.

text:
    Ira N. SACHS, Individually, and State of Tennessee, on relation of Ira N. Sachs, a resident of Shelby County, Tennessee, Appellant, v. SHELBY COUNTY ELECTION COMMISSION et al., Appellees, Ira H. Murphy, Appellee.
    Supreme Court of Tennessee.
    May 12, 1975.
    Thomas E. Hansom, Memphis, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, James E. Swearengen, Memphis, for appel-lees.
   OPINION

COOPER, Justice.

This appeal is from a decree of the Chancery Court of Shelby County dismissing a petition for Writ of Mandamus filed against the Shelby County Election Commission, its members, registrar and Director.

The petition was filed by Ira Sachs, individually, and also purporting to act on relation of the State of Tennessee. Mr. Sachs sought to have the Chancery Court require the election commission determine the sufficiency of the qualifying petition of Ira H. Murphy for the August 1, 1974, Democratic primary election and (1) to remove the name of Mr. Murphy from the ballot, (2) to purge Mr. Murphy from the rolls as a registered voter of the 87th District of the House of Representatives of the Tennessee General Assembly, and (3) to have the commission pay the attorney’s fees incurred by Mr. Sachs in filing and prosecuting the petition for Writ of Mandamus. Mr. Sachs alleged he had challenged the sufficiency of the qualifying petition filed by Mr. Murphy with the election commission on the grounds (a) the petition did not contain the signatures of the requisite number of qualified voters residing in the 87th District (see T.C.A. § 2-505), and (b) that Mr. Murphy was not, in fact, a resident of the 87th District, and that he had submitted affidavits to the commission in support of the challenge; that, shortly after receipt of the challenge, the election commission had declared that Mr. Murphy’s name would be on the ballot for the August first primary election. Mr. Sachs charged that the election commission had disregarded the mandate of T.C.A. § 2-505, with respect to the requirement that a nominating petition shall be signed by the candidate and twenty-five or more registered voters who are eligible to vote to fill the office. Mr. Sachs further charged that the action of the election commission in disregarding its statutorily imposed duty “was willful, malicious, open and notorious neglect of the duties imposed upon the commission and owed to the petitioner as a resident citizen and qualified voter of the State House District No. 87, Shelby County.” (emphasis supplied)

The defendants raised the question of Mr. Sachs standing to sue, alleging inter alia that the petition was not properly brought in the name of the state since it did not bear the signature of the district attorney general, and was not properly brought by petitioner, individually, as petitioner did not allege any special or particular interest or right to have Mr. Murphy’s name stricken from the ballot.

Without acting on the issue of lack of standing to sue, the chancellor heard evidence on the merits of the petition for Writ of Mandamus. The chancellor then filed a memorandum opinion directing the Shelby County Election Commission to examine the nominating petition of Mr. Murphy and to determine whether or not the petition contained the names of twenty-five or more persons registered to vote in the 87th House District. The chancellor went on to point out that the election commission, in making the examination, was not empowered or required to hear proof or make any determination with reference to the changing of any signature appearing on the petition, it being the opinion of the chancellor that such was a judicial function.

The election commission, without waiting on the entry of an order on the memorandum, complied with the directions of the chancellor and certified the results of their examination of the petition to the chancellor.

Several months later, and after the primary election was over and Mr. Murphy was the nominee of the Democratic Party for the office of representative from the 87th House District, the chancellor entered an order for the issuance of the Writ of Mandamus called for in the memorandum opinion. In the same order the chancellor concluded that no other relief was due the petitioner and dismissed the petition.

Petitioner appealed, insisting the chancellor erred (1) in denying petitioner damages in the form of attorney’s fees; and (2) in interpreting T.C.A. § 2-505 so that the election commission was under no duty to hear proof or make a determination of the genuineness of the signatures on Mr. Murphy’s nominating petition.

The defendants, answering these assignments, continue to insist that the petitioner did not have standing to file the petition for Writ of Mandamus.

In the recently decided case of Bennett et al. v. Stutts et ah, 521 S.W.2d 575, 576 (Tenn.1975), this court reemphasized that “it is the settled law in this state that private citizens, as such, cannot maintain an action complaining of the wrongful acts of public officials unless such private citizens aver special interest or a special injury not common to the public generally. Patton v. City of Chattanooga, 108 Tenn. 197, 65 S.W. 414 (1901); Skelton v. Barnett, 190 Tenn. 70, 227 S.W.2d 774 (1950); Badgett v. Broome, 219 Tenn. 264, 409 S.W.2d 354 (1966).” The enforcement of matters of public interest is the province of the District Attorney General appearing on relation of the State of Tennessee. See State ex rel. v. Miller, 202 Tenn. 498, 304 S.W.2d 654 (1956).

“In cases of purely public concern and in actions for wrongs against the public, whether actually committed or only apprehended, the remedy, whether civil or criminal, is as a general rule by a prosecution instituted by the state in its political character, or by some officer authorized by law to act in its behalf, or by some of those local agencies created by the state for the arrangement of such of the local affairs of the community as may be entrusted to them by law.” 59 Am. Jur.2d, Parties, Section 30, quoted with approval in Bennett et al. v. Stutts et al., supra, at p. 577.

In this case, petitioner predicated his right to file the petition for Writ of Mandamus upon the fact that he was a resident and registered voter of the 87th House District, nothing more. Petitioner alleged no facts which would indicate he stood in a position different from that of every other resident and registered voter of the district, nor did he allege any fact which would indicate that he had any particular interest in having Ira Murphy’s name stricken from the ballot. Neither did the District Attorney General join in the petition for Writ of Mandamus. It follows under the authorities above cited, that the petitioner did not have standing to file the petition and that the chancellor should have dismissed the petition on motion of the defendants, without holding an evidentiary hearing and without issuing any mandatory directions to the election commission.

The decree of the chancellor dismissing the petition is affirmed. Costs incident to the appeal are adjudged against Ira N. Sachs, Individually, and his surety.

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


author: OLIVER, Judge.

text:
    Faye SMITH, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Nov. 26, 1974.
    Certiorari Denied by Supreme Court June 16, 1975.

      William J. Stricklin, Union City, Harry U. Scruggs, Sr., and Harry U. Scruggs, Jr., Memphis, for plaintiff-in-error.
    David M. Pack, Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Nashville, Fleming Hodges, Dist. Atty. Gen., Dyers-burg, for defendant-in-error.
   OPINION

OLIVER, Judge.

This case is again before us pursuant to a delayed appeal in the nature of a writ of error granted by the trial court in compliance with an opinion of this Court filed April 6, 1973.

Represented in his trial and before this Court by retained counsel, Smith was convicted upon the third count of an indictment charging him with concealing or aiding in concealing four shotguns, of the aggregate value of more than $100, knowing them to have been stolen from the named owner “with the intent to convert the same to the use of the one so steal same and deprive the true owner thereof,” and was sentenced to three years in the penitentiary (T.C.A. § 39 — 4217).

In the first count of the indictment the defendant was charged with second degree burglary, and the second count charged him with stealing the four shotguns. After the jury was empaneled, the District Attorney General moved the Court for an order nolle prosequi as to the first and second counts of the indictment and to be permitted to proceed to trial on the third count, which the trial court granted. Apart from the jury, defense counsel moved for a mistrial and objected to going to trial on the third count of the indictment after the first and second counts were read to the jury and dismissed by the State. The first Assignment of Error complains of the trial court’s action in overruling that defense motion. This Court overruled that Assignment in its opinion filed April 13, 1972 (cert. den. July 17, 1972).

In urging the usual contention that the evidence preponderates against the verdict of the jury and in favor of his innocence, the defendant insists the State did not prove he knew the guns were stolen nor that he had them in his possession with the intent to deprive the true owner of them. A related insistence presented by his second and third Assignments is that the trial court erred in ruling that prosecution witness Lloyd Hayes was not an accomplice and in declining to give his requested instruction that the uncorroborated testimony of an accomplice will not sustain a conviction.

We summarize the material evidence. Mrs. Foster Strader’s Lake County home was burglarized on March 9, 1971 and four shotguns belonging to her, which she identified at the trial and said were worth more than $100, were stolen. About 3:10 a. m. on March 9th in adjoining Obion County, Union City police officers on patrol noticed an automobile with a defective muffler and followed it until it stopped in a driveway. The car was driven by Jimmy Tarver of Tiptonville. The passengers were Jimmy Nance of Tiptonville and Bobby Gwynn who lived in Union City where the car stopped. Tiptonville is the county seat of Lake County. The guns were plainly visible in that car. However, after checking with area law enforcement agencies and finding no report of stolen guns, the men were not arrested.

A couple of days later, according to the testimony of Lloyd Hayes, the defendant sold him five guns (including the four stolen ones), for $200 (exhibit five). He gave the defendant a check, made out to cash, for the guns. He testified that the defendant told him he had gotten the guns from a man named Frederick; that the defendant’s son Danny was his son-in-law and lived in a trailer behind his house; that he took Danny Smith’s car and went and got the guns from the defendant and the next morning Danny took them out of the car and put them in his trailer home; that the defendant never told him the guns were stolen and he had no knowledge that they had been stolen; that the guns, which he bought from the defendant in Obion County, were worth more than $100; that on one or two previous occasions the defendant had cashed checks for him; and that he had been indicted for receiving and concealing the guns.

The police discovered the guns while they were in Danny Smith’s house trailer investigating another matter. Hayes testified he told the officers the guns were his and that he had bought them from a man named Frederick. He also testified that at the Lake County preliminary hearing for Tar-ver, Nance and Gwynn on the burglary charge, he was present to identify Frederick; that when he saw those three defendants and realized he had never seen either of them before he asked the defendant which one of them was Frederick and the defendant replied, “Neither one of them”; that he then asked the defendant if the accused were the ones he bought the guns from and the defendant said, “Yeah”; that the defendant told him to testify that he bought the guns from a man named Frederick and to stick to it, and that he so testified before the General Sessions Judge; and that he lied when he told the officers he bought the guns from a man named Frederick and also lied when he told the General Sessions Judge the same thing.

The defendant testified that he lived in Obion County and had operated a restaurant and tavern at Reelfoot Lake for about 12 years; that he did not sell the guns to Hayes and never talked to him about guns and had never seen these guns before, and knew nothing about them or any of the incidents involved until he went to Tipton-ville to get his car license plates on the day of the above-mentioned preliminary hearing; that Hayes was there on that occasion but he did not talk to him about that case; that he just stuck his head inside the courtroom and did not see the defendants; that he cashed the check in question for Hayes at his place of business and had cashed checks for him before; that they are good friends and had been for a long time, and he would lend him $200 if he needed it and didn’t want to write a check.

An accomplice is one who knowingly, voluntarily and with common intent unites with the principal offender in the commission of the crime. Hicks v. State, 126 Tenn. 359, 149 S.W. 1055; Monts v. State, 214 Tenn. 171, 191, 379 S.W.2d 34; Moore v. State, 1 Tenn.Crim.App. 190, 432 S.W.2d 684; McAfee v. State, 3 Tenn.Crim.App. 424, 426, 463 S.W.2d 141; Pennington v. State, Tenn.Crim.App., 478 S.W.2d 892.

In Ripley v. State, 189 Tenn. 681, 687, 227 S.W.2d 26, the Court said this:

“. . .By the great weight of authority, ‘The question of who are accomplices is one of law for the court when the facts as to the witness’ participation are clear and undisputed; when such facts are disputed or susceptible of different inferences, the question is one of fact for the
jury.’ 22 C.J.S., Criminal Law, § 797, page 1348.”

As the foregoing summary of the salient evidence demonstrates, this record contains no evidence that Hayes knowingly, voluntarily and with common intent united with this defendant in concealing or aided in the concealment of the guns in question. There is no evidence that when he bought the guns from the defendant Hayes had any knowledge or reason to suspect that they had been stolen, notwithstanding the fact that he lied to the officers and the General Sessions Judge when he told them he bought the guns from a man named Frederick — as the defendant had requested him to do.

Thus, the trial judge correctly held that Hayes was not an accomplice of the defendant and properly declined his request to instruct the jury that the uncorroborated testimony of an accomplice is insufficient for a conviction.

Tested by the rules governing appellate review of the evidence in criminal cases when its sufficiency is challenged on appeal, to which we must adhere, Webster v. State, 1 Tenn.Crim.App. 1, 425 S.W.2d 799; McGill v. State, 4 Tenn.Crim.App. 710, 475 S.W.2d 223, we cannot agree with the defendant that the evidence preponderated against the verdict of the jury and in favor of his innocence.

Also groundless is the defendant’s assignment that he was prejudiced and did not receive a fair trial because of the seating arrangement of the jury, which the trial judge stated in passing upon the motion for a new trial had existed for years, whereby the jurors were seated in swivel chairs immediately in front of the bench and with their backs toward the judge and with the witness box in front so that the witnesses faced the jury and the court. While it is unarguable that under such an arrangement or similar arrangement whereby the jury faces the courtroom audience the attention of jurors may be distracted by movements and occurrences in the audience, this defendant has not shown that the attention of the jurors was thus diverted so as to deny him a fair and impartial trial.

Moreover, as pointed out by the State in its brief, the defendant made no objection to the arrangement of the courtroom prior to or during his trial. In Tennessee Oil Co. v. McCanless, 178 Tenn. 683, 703, 157 S.W.2d 267, 162 S.W.2d 1081 (1941), the Court said: “A new trial will not be granted to enable a defendant to avail himself of the matter which he might have presented on the trial but raised for the first time on his motion for a new trial. Heggie v. Hayes, 141 Tenn. 219, 208 S.W. 605, 3 A.L.R. 150.”

Affirmed.

WALKER, P. J., and RUSSELL, J., concur.


text:
    Jimmy L. PRACTY, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Nov. 7, 1974.
    Certiorari Denied by Supreme Court June 9, 1975.

      Walker Gwinn, Asst. Public Defender, Memphis (Court-appointed), for plaintiff-in-error.
    David M. Pack, Atty. Gen., Alex B. Ship-ley, Jr., Asst. Atty. Gen., Nashville, James G. Hall, Asst. Dist. Atty. Gen., Memphis, for defendant-in-error.
   OPINION

OLIVER, Judge.

Jimmy L. Practy’s sentence to imprisonment in the Shelby County workhouse for 11 months and 29 days adjudged on 9 April 1973 upon his guilty-plea conviction of petit larceny, was suspended the same day by the court and he was placed on probation for 18 months.

In a T.C.A. § 40-2907 petition filed September 11,1973 seeking revocation of Practy’s sentence suspension and probation, the Shelby County District Attorney General charged that on 17 July 1973 the Shelby County Grand Jury indicted him for third degree burglary and for receiving and concealing stolen property, and that on 3 August 1973 he entered a plea of guilty to the offense of attempting to commit a felony and was sentenced to 11 months and 29 days in the Shelby County Penal Farm and to pay a one dollar fine. The trial judge entered an order on September 11, 1973 directing the clerk to have a copy of the petition served upon Practy, requiring him to answer the petition and to appear at 9:30 a. m. on 8 October 1973 “to show cause if any he should have, why his suspension of sentence should not be revoked for his alleged failure and refusal to abide by the conditions of the probation order heretofore rendered in this cause.”

Represented by the Shelby County Public Defender’s office, Practy responded to that petition on September 20, 1973 by filing a pleading designated as a plea in abatement (erroneously so designated because it did not meet the requirements of such a plea) in which he admitted the petition correctly stated he was granted a suspended sentence and placed,on probation after his plea of guilty to petit larceny, and acknowledged that the petition “was duly served in the Shelby County Jail, where he is serving eleven (11) months and twenty-nine (29) days for a subsequent charge.” He then charged that he was never given a preliminary or final revocation hearing as required by Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and moved the court to dismiss the revocation petition for that reason and to order the State to give him a revocation hearing.

After a hearing on the petition the trial judge entered judgment dismissing Practy⅛ plea and revoking the suspension of his sentence and ordering it executed, from which he was granted and has duly perfected an appeal to this Court and urges here the same insistence advanced in his plea in the trial court.

In Gagnon v. Scarpelli, supra, Scarpelli pleaded guilty to a charge of armed robbery in Wisconsin. The trial judge sentenced him to imprisonment for 15 years, but suspended the sentence and placed him on probation for seven years in the custody of the Wisconsin Department of Public Welfare. The order placing him on probation provided, among other things, that “[i]n the event of his failure to meet the conditions of his probation he will stand committed under the sentence all ready [sic] imposed.” Under an agreement signed by him setting out the terms of his probation he agreed to make a sincere attempt to avoid violation of law, and under a Travel Permit And Agreement To Return he was allowed to reside in Illinois pursuant to an interstate compact and was accepted for supervision by the Adult Probation Department of Cook County, Illinois. The very next day Illinois police caught him and another in the act of burglarizing a house. Without a hearing of any kind, the Wisconsin Department of Public Welfare revoked his probation upon the grounds that (1) he had associated with known criminals in violation of his probation regulations and his supervisor’s instructions, and that (2) he had, while associating with the other named burglar, been involved in and arrested for a burglary in Deerfield, Illinois, and he was incarcerated in the Wisconsin State Reformatory to begin serving his 15-year sentence. Three years later he filed a federal habeas corpus petition in which he claimed that his admission of participation in the burglary was made under duress and was false and charged that the revocation of his probation without a hearing and the assistance of counsel was a denial of due process.

Perceiving no “difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation” in the total context of the case, the Supreme Court affirmed the holding of the District Court and the Seventh Circuit Court of Appeals (454 F.2d 416) that Sear-pelli was entitled to the writ of habeas corpus because administrative revocation of his probation without a hearing was a denial of due process, and remanded the case to the District Court to re-examine the failure of the Wisconsin Welfare Department to provide him with the assistance of counsel. In so holding, the Court relied upon Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), in which the Court considered revocation of the habeas petitioners’ parole without a hearing because, upon their theory, they were thus deprived of their Fourteenth Amendment right to due process.

In Gagnon the Court summarized the pertinent holding of Morrissey:

“Specifically, we held that a parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision.
* * * * * *
“. . .At the preliminary hearing, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decisionmaker, and a written report of the hearing. [Morrissey v. Brewer, supra ], 408 U.S., at 487, 92 S.Ct. 2603. The final hearing is a less summary one because the decision under consideration is the ultimate decision to revoke rather than a mere determination of probable cause, but the ‘minimum requirements of due process’ include very similar elements:
‘(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence;
(d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
(e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.’ Morrissey v. Brewer, supra [408 U.S.], at 489, 92 S.Ct. at 2604.”

Morrissey’s parole was revoked, he said without any prior hearing, upon review of the parole officer’s written report one week after he was arrested by that officer as a parole violator. The State asserted in its brief that the petitioners (Morrissey and Booher) were granted hearings by the Board of Parole shortly after they were returned to the penitentiary, on the basis of the parole officer’s written reports of alleged parole violations, and that at their hearings both admitted those violations. The Court concluded:

“In the peculiar posture of this case, given the absence of an adequate record, we conclude the ends of justice will be best served by remanding the case to the Court of Appeals for its return of the two consolidated cases to the District Court with directions to make findings on the procedures actually followed by the Parole Board in these two revocations. If it is determined that petitioners admitted parole violations to the Parole Board, as [Iowa] contends, and if those violations are found to be reasonable grounds for revoking parole under state standards, that would end the matter. If the procedures followed by the Parole Board are found to meet the standards laid down in this opinion that, too, would dispose of the due process claims for these cases.” (Emphasis supplied).

See T.C.A. §§ 40-3617 and 40-3618 and 40-3619, with respect to parole violations by prisoners released from the penitentiary on parole, preliminary hearings for such alleged violators before a hearing officer, and Board hearings on parole violations.

On the other hand, the Legislature of this State has vested the trial judge with sole authority and discretion to grant suspension of sentence and probation to all convicted misdemeanants and to those convicted of a felony for which the maximum punishment does not exceed confinement in the penitentiary for 10 years. T.C.A. §§ 40-2901—40-2904. The trial judge is also entrusted with the sole power to revoke suspension of sentences and probation. T.C.A. § 40-2906.

The procedure for revoking suspension of sentences and probation is provided in T.C.A. § 40-2907 as follows:

“Procedure to revoke suspension or probation.—Whenever it shall come to the attention of the trial judge that any defendant who has been released upon suspension of sentence has been guilty of any breach of the laws of this state or who has violated the conditions of his probation, the trial judge shall have the power in his discretion to cause to be issued under his hand a warrant for the arrest of such defendant as in any other criminal case. Said warrant may be executed by a probation and paroles officer or any peace officer of the county in which the probationer is found. Any probation and paroles officer for cause may arrest a probationer without a warrant. Whenever any person is arrested for the violation of probation and suspension of sentence, the trial judge granting such probation and suspension of sentence, or his successor, shall, at the earliest practicable time, inquire into the charges and determine whether or not a violation has occurred and at such inquiry, the defendant must be present and shall be entitled to be represented by counsel and shall have the right to introduce testimony in his behalf thereon. The trial judge may enter such judgment upon the question of such charges as he may deem right and proper under the evidence adduced before him. If the trial judge should find that the defendant has violated the conditions of his probation and suspension, the trial judge shall have the right by order duly entered upon the minutes of his court, to revoke the probation and suspension of sentence and cause the defendant to commence the execution of the judgment as originally entered, or otherwise in accordance with § 40-2906, provided, however, that in case of such revocation of probation and suspension, the defendant shall have the right to appeal therefrom to the Supreme Court of this state as in other criminal cases.”

In granting or suspending probation, the question is always whether or not the court is satisfied that its action will sub-serve the ends of justice and the best interests of both the public and the defendant, and such action rests in the court’s sound discretion. Hooper v. State, 201 Tenn. 156, 297 S.W.2d 78.

Examination of all the foregoing statutes makes it clear that the Legislature intended to and did create two separate and distinct systems relating to the conditional release of persons convicted of crime, the one dealing with suspension of sentence and release on probation by the trial judge, and the other with release of prisoners from the penitentiary by the Board of Pardons and Paroles.

In the case before us the order of the trial judge suspending Practy’s sentence and placing him on probation contained, among other things, the following condition:

“He shall not violate any of the laws of the United States, or the State of Tennessee, or of any state where he may be, or any ordinance of any municipality, but he shall conduct himself as a law abiding citizen.”

As already noted, by his plea Practy admitted his original guilty plea conviction of petit larceny and that the trial judge suspended his sentence and placed him on probation, and that when served with the revocation petition he was in the Shelby County jail serving a sentence of 11 months and 29 days “for a subsequent charge.” Nor does the record show that he made any effort to question that subsequent conviction, or its effect on his previously granted sentence suspension and probation, when he appeared with his appointed attorney at his parole revocation hearing before the trial judge. Thus, since there is no question whatever about the validity of his subsequent guilty plea conviction of attempting to commit a felony, his admitted violation clearly constituted sufficient ground for revoking his suspended sentence and probation under the standards of this State and, as said by the United States Supreme Court in Morrissey, supra, that should “end the matter.”

Moreover, we agree with the State that the procedural requirements delineated in Morrissey and recited in the above quotation from Gagnon, were substantially and adequately observed in the revocation of Practy’s suspended sentence and probation. The revocation petition, which he admitted was factually correct and which was served on him, at once provided him with written notice of the claimed violation of his probation and disclosed the nature of the evidence against him; the hearing before the trial judge, where he was represented by counsel and had the right to testify and call witnesses and present evidence and to confront and cross-examine adverse witnesses, effectively preserved those rights designated (c), (d) and (e) by the Supreme Court as minimal requirements; and the order entered by the trial judge revoking Practy’s earlier sentence suspension and probation furnished him essentially the information contemplated by (f) in the Court’s list.

Beyond that, the probationer’s rights are further protected by his right to have any adverse decision reviewed by this Court and the Supreme Court of Tennessee. Thus, the statutorily mandated proceedings in this State for revocation of a probationer’s suspended sentence and probation unquestionably more than comply with the mere minimal requirements stated in Mor-rissey and Gagnon on which plaintiff in error Practy relies. In Morrissey the Court said termination of the conditional liberty of a parolee “calls for some orderly process, however informal.” (92 S.Ct. 2601). This State’s procedure for revocation of sentence suspension and probation is an orderly one affording a probationer full protection of his constitutional right to due process.

Finally, the argument that a preliminary hearing upon a charge of probation violation could be had in a General Sessions Court to determine probable cause, with an appeal therefrom to “another division of the Criminal Court other than that imposing the suspended sentence” is wholly untenable for the simple reason, as pointed out, that our probation-revocation statute confers no authority or power upon General Sessions Courts in such matters, and, instead vests the trial judge with exclusive jurisdiction in these cases.

Affirmed.

WALKER, P. J., and RUSSELL, J., concur.


author: WALKER, Presiding Judge.

text:
    Richard D. REAGAN, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Dec. 12, 1974.
    Certiorari Denied by Supreme Court June 16, 1975.
    James E. Dender, Maryville, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, H. Kenneth Deatherage, Dist. Atty. Gen., Kingston, for defendant-in-error.
   OPINION

WALKER, Presiding Judge.

In case No. 68, trial court No. 766, the Blount County grand jury charged the defendant below, Richard D. Reagan, with burglary of the dwelling house of Arnold Lowe. In case No. 69, trial court No. 767, it charged him with concealing stolen property, a .25 caliber Beretta pistol, the property of Elmer Gibson. In case No. 70, trial court No. 771, it charged him with concealing stolen property, a three-eighths inch electric drill, the property of Arnold Lowe. Over his objection the three eases were consolidated for trial and the jury found him guilty in each of the three cases. In ease No. 68 it fixed his punishment at a minimum of 10 and a maximum of 12 years in the penitentiary; in case No. 69 at a minimum of two and a maximum of five years; and in case No. 70 at a minimum of one and a maximum of three years in the penitentiary. The trial judge sentenced him in each case in accordance with the verdict. Since he did not specify whether the sentences were cumulative or concurrent, they will be considered concurrent. State ex rel. York v. Russell, 180 Tenn. 515, 176 S.W.2d 820. From those judgments and sentences, Reagan appeals in error.

At about 11:30 P.M., July 27, 1973, Arnold Lowe went to bed in his Alcoa home, leaving the back door open so that his oldest son could come in later. At 2:00 A.M. or later he heard someone coming in through the garage and then saw the defendant in his bedroom apparently going towards his trousers hanging on the bedpost. Lowe got his pistol, subdued the defendant and held him until police arrived.

Lowe told the police that the defendant’s car was outside and that he could have taken something from the house before he had awakened. Officer Giles shined a flashlight in the car and in plain view saw a Beretta pistol in a Browning pistol case. This officer had a report on a break in of Gibson’s gas station and he was looking for weapons taken from it. He took the pistol and later at the trial Elmer Gibson identified it as belonging to him and having been stolen from him in a burglary of his service station earlier in July.

After finding the pistol, Officer Giles got the car keys, opened the trunk and found a three-eighths inch electric drill. At the trial an employee of Mr. Lowe identified this drill as one taken in the July 23,1973, break in or Mr. Lowe’s body shop.

Testifying in his own behalf, the defendant said that he was driving around on the night in question, saw a light on in the Lowe home and decided to go in and see Mr. Lowe’s son; that he knocked on the front door, received no answer and then went to the unlocked back door and came in. He said Mr. Lowe, whom he did not know, acted crazy and hit him with a pistol but he did not defend himself because his hands had been burned. He denied having the flashlight which Mr. Lowe said he found. He denied any intention to burglarize the house. Mr. Lowe’s son testified he had seen the defendant about 10:00 P.M. at a speedway or drag strip.

As to the pistol the defendant testified he bought it for $15 from one Allen Bennett. John Farmer testified he was present at the purchase. The state disputed the testimony that Bennett was in Tennessee at the time of the claimed sale.

The defendant and his witnesses testified that the drill belonged to his father-in-law.

The defendant says the court erred in refusing his motion for separate trials of the three cases. We think his motion was well taken and that he should have been granted separate trials. We sustain this assignment of error and reverse the three cases.

The matter of consolidating separate indictments for trial is procedural and generally this is a matter within the discretion of the trial court.

In reversing the conviction in Bruce v. State, 213 Tenn. 666, 378 S.W.2d 758, for improper consolidation of two cases for trial, our Supreme Court said:

“In 23 C.J.S. Criminal Law § 931 we find the following statement:
“ ‘Ordinarily consolidation for trial or refusal to order a severance or separate trial is permissible or proper where the offenses charged are similar, related, or connected, or are of the same or similar character or class, or involve or arose out of the same or related or connected acts, occurrences, transactions, series of events, or chain of circumstances, or are based on acts or transactions constituting parts of a common scheme or plan, or are of the same pattern and committed in the same manner, or where there is a common element of substantial importance in their commission, or where the same, or much the same, evidence will be competent and admissible or required in their prosecution, and if not joined for trial the repetition or reproduction of substantially the same testimony will be required on each trial.’
“The saving of time and expense are the two compelling reasons favoring the consolidation of indictments for trial. It is in the public interest for the work of the courts to be expedited, at as reasonable expense, as possible. These desirable ends must be counter-balanced against the damages of prejudice to the defendant.”

The defendant was forced to go to trial under three indictments charging him with three different offenses provable by different witnesses and based on separate burglaries committed at different times. The pistol case depended on the testimony and identification of the owner, Elmer Gibson, and the testimony of the burglary of Gibson’s service station. The drill ease depended on the testimony of a break in of Mr. Lowe’s business house at a previous time. At separate trials the same evidence would not be competent and admissible as to all the cases. The fact that the pistol and drill were found in the car following the arrest for burglary of the Lowe home is not sufficient to justify consolidation of the three cases.

In holding that the trial judge erred in consolidating separate and unconnected felonies in Burma v. State, 1 Tenn.Cr.App. 508, 445 S.W.2d 946, we said:

' “A further very lucid and clarifying statement of the law upon this subject is set out in 23 C.J.S. Criminal Law § 931, p. 683:
“ ‘Consolidation should be denied or severance or separate trial may properly be granted where it appears from the face of the indictments that distinct felonies are charged, not provable from the same evidence and in no sense resulting from the same series of acts; where the offenses, although of the same class, were committed at different times and places, were not part of a common plan, and are not dependent on the same proof; or where evidence will be presented by the prosecution on a joint trial which will not be admissible on a separate trial and which will tend to prejudice the rights of accused.’ ”

Under the rules laid down in Bruce, supra, and Burum, supra, the defendant should have received separate trials and the failure to grant his motion resulted in prejudice to him.

Although we find the cases must be reversed for failure to grant separate trials, we have also examined all other assignments and find them to be without merit.

The defendant says that the trial court erred in denying his motion to suppress testimony of the three-eighths inch drill found in the car trunk. He relies on Chimel v. California, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034, contending that the search was not proper as incident to his arrest. The state does not rely on the search as ■ incident to arrest but relies on probable cause to search without a warrant.

The defendant had been apprehended in a burglary and it was reasonable to believe that his car parked outside the burglarized home might contain property taken from that home. In plain view the officer had seen a pistol in the car. That evidence of the pistol was admissible. See Armour v. Totty, Tenn., 486 S.W.2d 537.

In Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975, the court held that automobiles may be searched without a warrant in circumstances which would not justify the search without a warrant of a house or office; the right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.

The search of the automobile was lawful and the evidence of the drill was admissible. See Graybeal v. State, 3 Tenn. Cr.App. 466, 463 S.W.2d 159; Alvey v. State, 1 Tenn.Cr.App. 360, 443 S.W.2d 518; Campbell v. State, 4 Tenn.Cr.App. 100, 469 S.W.2d 506.

The court did not err in denying the motion for a continuance for an absent witness. The witness had testified voluntarily at the preliminary hearing and no subpoena had been served requiring his attendance. His testimony would have been cumulative to that of three other witnesses on the ownership of the drill.

The defendant and two of his witnesses testified that his hands had been burned. On cross-examination the district attorney general asked if he were in a house to burn it down. The defendant assigns this as error. We think this exceeded the bounds of legitimate cross-examination but that it was not prejudicial error. It should not be repeated on retrial.

On his cross-examination Officer Atchley was asked where the defendant lived. Entirely unresponsive to the question, he replied that the defendant wanted to make a deal about the case. Counsel inquired further about his answer. Outside the presence of the jury, the trial judge announced that he would instruct the jury to disregard the statement about a deal. Defense counsel indicated that this was satisfactory. The trial judge then instructed the jury to disregard any statement made by Officer Atchley about a deal. In his general charge he repeated his instructions to disregard any statement about a deal. This assignment is without merit but the officer should not volunteer this inadmissible testimony on retrial.

We find no error in the rebuttal testimony on the credibility of the . defendant.

The judgments are reversed and the three cases are remanded for new trials.

DWYER and O’BRIEN, JJ., concur.


text:
    Stephen L. SQUIRES, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Jan. 16, 1975.
    Certiorari Denied by Supreme Court June 9, 1975.

      Burkett C. Mclnturff and John S. McLel-lan, Kingsport, for plaintiff-in-error.
    Milton P. Rice, Atty. Gen., John B. Ha-gler, Jr., Asst. Atty. Gen., Nashville, Carl K. Kirkpatrick, Dist. Atty. Gen., Kingsport, for defendant-in-error.
   OPINION

OLIVER, Judge.

Represented by retained counsel, Stephen L. Squires has perfected an appeal in the nature of a writ of error to this Court contesting his conviction of professional gambling, for which he was sentenced to pay a fine of $1,000 and to be imprisoned in the penitentiary for not less than one nor more than five years. TCA §§ 39-2032 and 39-2033.

The presentment upon which the defendant was tried was returned by the Grand Jury on 16 March 1973. By his first Assignment of Error the defendant complains that the trial judge overruled his motion to quash the presentment upon various grounds, including such indefiniteness, uncertainty and ambiguity that it did not furnish him with sufficient information to enable him to defend himself properly and would not protect him against double jeopardy; and also in overruling his motion to dismiss the presentment upon the ground that the statutes under which it was laid were unconstitutional because of vagueness, indefiniteness and uncertainty.

To begin with, we do not agree that either the presentment or the statutes upon which it is based show infection with any such constitutional infirmity.

But beyond that, in making these contentions here the defendant confronts the fact that no order overruling those motions was made and entered upon the court’s Minutes. Notwithstanding it appears in the Bill of Exceptions that the court overruled those motions, no order reflecting that action is shown to have been made and entered of record. When the Minutes of the trial court contain no entry showing any action upon a plea in abatement or a motion to quash an indictment, the established law of this State is that the appellate court cannot review the question raised by such plea or motion and is not permitted to look to recitals in the Bill of Exceptions to supply this defect. Klaver v. State (Tenn.Cr.App.1973), 503 S.W.2d 946; Shye v. State (Tenn.Cr.App.1974), 506 S.W.2d 169; Jones v. State, 197 Tenn. 667, 277 S.W.2d 371; Gray v. State, 194 Tenn. 234, 241-242, 250 S.W.2d 86.

The defendant’s second Assignment, which we hold to be without merit, advances and argues his insistence that the trial court erroneously overruled his challenges to the legality of four search warrants and erred in admitting in evidence the seized gambling devices and equipment and component parts.

The first search warrant was issued January 5,1973 as a “John Doe, alias” warrant (which term did not affect the legality of the warrant, Garner v. State, 220 Tenn. 680, 423 S.W.2d 480; Renner v. State, 187 Tenn. 647, 216 S.W.2d 345) and directed search of the two-compartment basement of the B & B Package Store in Kingsport, Tennessee. In March of 1973 the package store owner leased the basement to the Duran Corporation, whose offices were in the same building and which was a landholding company organized by the defendant and Herbert Patterson and Lester Peters for the purpose of establishing restaurants. Contrary to the defendant’s insistence, the description of the premises contained in this search warrant was not defective or inadequate. The simple test of the legal sufficiency of a search warrant’s description of the property to be searched is whether or not it will enable an officer to locate the place to be searched with reasonable certainty, Hatchett v. State, 208 Tenn. 399, 346 S.W.2d 258, and thus prevent the officer from searching the premises of one person under a warrant directed against those of another. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351.

And he was not prejudiced by not being permitted to call and examine the affiant’s informant (Lieutenant Sammy Poole of the Sullivan County Sheriff’s Department whose name appeared in the affidavit) regarding his statement to the affiant, which was also set out in the affidavit. The facts stated in the affidavit upon which the affiant bases his reasonable belief are not subject to contradiction at the trial for the purpose of suppressing the evidence secured by means of the search warrant. Owens v. State, 217 Tenn. 544, 553, 399 S.W.2d 507. In determining whether or not probable cause exists for the issuance of a search warrant, the issuing magistrate performs a judicial act which is not subject to review by the Court if probable cause is shown on the face of the warrant. O’Brien v. State, 205 Tenn. 405, 326 S.W.2d 759; Poole v. State, 4 Tenn.Cr.App. 41, 467 S.W.2d 826. Besides, he substantially accomplished the same purpose by cross-examination of Officer Poole.

The complaint with reference to this presentment that T.C.A. § 40-518 was not complied with is untenable because the record shows that the defendant was not present when the premises were searched and there is no evidence that either of the other incorporators or any employee was there at that time. Poole v. State, supra; State v. Calvert, 219 Tenn. 534, 410 S.W.2d 907.

We must reject the defendant’s argument that the search was illegal because the basement was divided into two compartments by a partition which contained a closed and locked door and each compartment had a separate exterior entrance, and that the search warrant left it to the discretion of the officer executing it which of the separate premises he would search. Patterson testified that the partition was installed after the Duran Corporation leased the basement, that the Corporation stored some three truck loads of restaurant materials there and the defendant stored some machine parts in the basement. Under these circumstances the two compartments of the basement did not constitute multiple premises within the meaning of Worden v. State, 197 Tenn. 340, 273 S.W.2d 139. Nor was the search invalid because the warrant charged possession of one electric slot machine and the officers found one such machine in one compartment of the basement and 39 such machines and assorted repair parts and tools in the other.

The defendant assails a search warrant issued to Officer Sammy Poole on 19 January 1973, which directed search of Franklin Shipley’s business house known as Bloomingdale Billiards located at a designated street number, for electronic gambling devices, the affidavit reciting that the affiant’s belief was based upon information received from Franklin Shipley himself. We cannot agree with the defendant’s assertion that this warrant’s description of the premises to be searched was fatally uncertain and inadequate. Nor can we assent to the proposition that the defendant was denied his constitutional right to a fair and impartial trial when an FBI agent, who was an expert in gambling machines and devices, demonstrated the operation of one of the confiscated machines. We do not perceive how this demonstration of the machine with “lights flashing” and “bells whistling” and other “bizarre noises” coming therefrom created a “casino atmosphere” in the courtroom so as to prejudice the defendant’s right to a fair trial.

Another search warrant attacked by the defendant is the one issued on 8 January 1973 upon the affidavit of Deputy Sheriff Mike Gardner, based upon his own personal observation of the premises in question on the same day, directing search for gambling devices in a house and outbuildings belonging to the defendant and one Ted Frazier described as being located on the east side of U.S. Highway 23 at its intersection with the Old Airport Road and directly across U.S. Highway 23 from a business house known as Cottage Antiques. We must reject the defendant’s contentions that this warrant does not show probable cause for its issuance and that its description of the premises to be searched is fatally inadequate and vague and uncertain, and that it failed to show on its face that the issuing General Sessions Judge complied with T.C.A. § 40-518 by retaining a copy for his official records. That statute provides as follows:

“Copies of search warrants required — In-dorsement-Evidence. — All magistrates, clerks of courts, judges and any other person or persons whomsoever issuing search warrants shall prepare an original and two (2) exact copies of same, one (1) of which shall be kept by him as a part of his official records, and one (1) of which shall be left with the person or persons on whom said warrant is served. The original search warrants shall be served and returned as provided by law. The person or persons as aforesaid who issue said warrants shall indorse the warrants showing the hour, date, and the name of the officer to whom the warrants were delivered for execution, and the exact copy of such warrant and the indorsement thereon, shall be admissible in evidence in the courts. Failure to comply with this section shall make any search conducted under said warrant an illegal search and seizure.”

The General Sessions Judge who issued this search warrant placed this endorsement on it:

“Issued in triplicate at 11:55 p. m. this 8th day of January, 1973 and delivered to Mike Gardner on this 8th day of January, 1973 at 11:55 o’clock p. m. for execution.
George H. Garrett Judge of General Sessions Court”

We agree with the State that while this statute requires the issuing magistrate to retain a copy of the search warrant, it does not require that compliance must be recorded on the warrant itself — however desirable it may be to do so. It will be noted that T.C.A. § 40-518 only requires the issuing official to endorse on the search warrant “the hour, date, and the name of the officer to whom the warrants were delivered for execution.” Talley v. State, 208 Tenn. 275, 345 S.W.2d 867; Evans v. State, 209 Tenn. 453, 354 S.W.2d 263. Neither of the search warrants in this case was incorrectly endorsed by the issuing officer.

The remaining search warrant involved was issued by the General Sessions Judge on 29 Jánuary 1973 upon the affidavit of Deputy Sheriff Sammy D. Poole, which identified his informant as “John Doe, alias, a responsible and reliable citizen of said State and County, whose name I have this day disclosed to the Judge to whom this application is made,” directed a search for gaming devices at a house belonging to the defendant “. . . located in 14th Civil District, Sullivan County, Tennessee, and described as follows: Frame residential house with brown shingles on front and red plank siding on back, on private drive one-tenth of one mile from U.S. 23, said drive being one mile south of intersection of U.S. 23 and Colonial Heights Road and connecting with U.S. 23.” We do not agree with the defendant’s insistence that this description of the premises is defective as being indefinite and misleading and uncertain. Nor is it rendered invalid by the fact that the affiant identified his informant as “John Doe, alias.” It is not essential that the informant’s name be stated in the affidavit made by the applicant for a search warrant. Gallimore v. State, 173 Tenn. 178, 116 S.W.2d 1001; Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487. Hence, the accused cannot be prejudiced by the fact that the informant is named in the affidavit or is referred to therein as John Doe.

We cannot accept the defendant’s argument that this search warrant issued to Deputy Sammy Poole on January 29, 1973 was void because of lack of a proper return. Due to the large number of items seized under this warrant, including one slot machine and numerous boxes of spare parts, Officer Poole’s return was made on January 30, 1973 on two separate sheets of paper signed by him and attached to the search warrant. Unquestionably, the long list of contraband articles could not have been shown and accounted for by the officer in any other way. Moreover, the return of an officer upon a search warrant does not affect the validity of the warrant and the officer’s execution thereof, and irregularities in regard to the return do not render evidence secured thereunder inadmissible. State v. Calvert, supra.

In each of the four search warrants in question, the information in the affidavit of the applicant sufficiently showed probable cause for issuance under the standards of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and the fruits of the searches conducted thereunder were admissible.

Next, the defendant earnestly maintains that the evidence is insufficient to sustain the verdict of the jury and preponderates against it and in favor of his innocence. He did not testify or offer any evidence. In summary, the State’s evidence showed that the defendant was one of the organizers of the Duran Corporation which rented the basement of the B & B Package Store, where he operated a slot machine storage and repair shop and where 40 slot machines and assorted parts and tools were seized under the search warrant issued on 5 January 1973; that during a period of about two years he employed up to five persons who repaired slot machines in the basement shop and in one located at the rear of his house, and he was present frequently; that his employees delivered the machines to local clubs for him and serviced them, much of the time with trucks he provided; that about once a week some of Ms employees made the rounds of the clubs where his slot machines were placed and collected the money from the machines and, after settling with the proprietor or club operator, delivered the rest of the money to the defendant who was in charge of the entire operation. In other instances the defendant himself removed the money from the machines he had installed and split the proceeds with the club. After one of the clubs was raided, the defendant approached Lieutenant Sammy Poole the morning the confiscated machines were to be destroyed and told Poole the machines were his and asked that they not be damaged seriously and said he would haul them off in his truck. The defendant also told a newspaper reporter about his machines at one YFW Club and that he got a cut of the take.

Through cross-examination of the State’s witnesses, the defendant undertook to establish the theory that his only connection with the machines located at different clubs throughout the county was to provide necessary repair service for the owners. Obviously, the jury did not accord credence to that theory. Considered in the light of the rules governing appellate review of the evidence when its sufficiency is challenged in criminal cases, by which we are bound, Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; McGill v. State, 4 Tenn.Cr.App. 710, 475 S.W.2d 223, upon this record the jury was fully justified in finding that the defendant owned and operated a large number of slot machines and placed them in various clubs and organizations in Sullivan County under arrangements by which he shared the proceeds of money risked and lost by persons playing those gambling devices, and that he was thus engaged in professional gambling on a grand scale in Sullivan County.

In his instructions to the jury the trial judge charged the material substance of the following provisions of TCA § 39-2033:

“(2) ‘Gambling’ means risking any money, credit, deposit, or other thing of value for gain contingent in whole or part upon lot, chance or the operation of a gambling device but does not include: bona fide contests of skill, speed, strength or endurance in which awards are made only to entrants or the owners of entries; bona fide business transactions which are valid under the law of contracts; pinball machines; and other acts or transactions expressly authorized by law.
“(3) ‘Professional gambling’ means accepting or offering to accept, for profit, money, credits, deposits or other things of value risked in gambling, or any claim thereon or interest therein. Without limiting the generality of this definition, the following shall be included: pool selling and bookmaking; maintaining slot machines, roulette wheels, dice tables, or money or merchandise push cards, punchboards, jars or spindles, in any place; and conducting lotteries, or policy or numbers games, or selling chances therein; and the following shall be presumed to be included: conducting any banking or percentage game played with cards, dice or counters, or accepting any fixed share of the stakes therein.
“(4) ‘Gambling device’ means any article, device or mechanism by the operation of in any place in which a right to money, credits, deposits or other things of value may be created, in. return for a consideration, as the result of the operation of an element of chance; any article, device or mechanism which, when operated for a consideration does not return the same value or thing of value for the same consideration upon each operation thereof; any device, mechanism, furniture, fixture, construction or installation designed primarily for use in connection with professional gambling; and any su-bassembly or essential part designed or intended for use in connection with any such device, mechanism, furniture, fixture, construction or installation, but pinball machines shall not be deemed to be included in this definition.”

In the context of this record, we conclude there is no merit in the Assignment that the court erred in permitting the District Attorney General in his closing argument to refer to the defendant as a professional gambler, nor in the complaint that the trial judge failed to grant a mistrial after the District Attorney General commented in the presence of the jury about the defendant’s failure to testify. After carefully considering the manner in which the reference arose, together with the trial judge’s specific instruction to the jury that “. . . you will give that [the defendant’s failure to testify] no weight in considering of your verdict, as the defendant is not required to testify and this raises no inference against him, nor in anywise weakens the presumption of innocence of the defendant in this case,” in our opinion the defendant’s rights under the Fifth Amendment of the United States Constitution and Article I, Section 9 of the Constitution of Tennessee and T.C.A. §§ 40-2402 — 40-2403 were not prejudicially violated. That is the test. Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758.

Groundless also is the defendant’s insistence that the trial judge committed error in failing to charge that possession of gambling devices, proscribed as a misdemeanor by T.C.A. § 39-2006, is a lesser included offense of professional gambling. By the statutory definition, T.C.A. § 89-2033(3), supra, professional gambling may be carried on without employment or use of a gambling mechanism or device. “The infallible test for determining whether a given offense is lesser than and included in the one charged, is that the lesser included offense must be such that it is impossible to commit the greater without first having committed the lesser.” Yearwood v. State, 2 Tenn.Cr.App. 552, 561, 455 S.W.2d 612, 616. As the Supreme Court of this State said in Johnson v. State, 217 Tenn. 234, 243, 397 S.W.2d 170, 174:

“. . . The true test of which is a lesser and which is a greater crime is whether the elements of the former are completely contained within the latter, so that to prove the greater the State must first prove the elements of the lesser.”

Presumably the defendant would rely upon that test for his further contention that the gambling condemned by T.C.A. § 39-2001 is a lesser included offense of professional gambling and the trial judge should have so charged. T.C.A. § 39-2001 provides: “If any person play at any game of hazard or address for money or other valuable thing, or make any bet or wager for money or other valuable thing, he is guilty of a misdemeanor.” But, as comparison of that statute and T.C.A. § 39-2033(3) clearly demonstrates, these statutes are aimed at and define entirely different offenses. “In fact, the statute [T.C.A. § 39-2001] does not purport to cover any offense except the playing of a game, or the making of a bet or wager, for money or other valuable thing.” State ex rel. District Attorney-General v. Crescent Amusement Go., 170 Tenn. 351, 95 S.W.2d 310. It relates to an agreement between two or more persons to risk money or property on a contest or chance where one is the gainer and the other the loser. Cleek v. State, 189 Tenn. 302, 225 S.W.2d 70. On the other hand, the professional gambling statute is directed against the conduct of a gambling operation as a business enterprise. “Interpreting this statute, we think professional gambling requires for proof something more than simple gaming. We think it may denote, inter alia, an activity wherein the person by whom it is committed takes, backs or risks more than one bet or wager, knowing that even though he takes these extra risks, the odds or chances of winning are in his favor. It usually means, among other things, the type of gambling one does for a living or which consistently augments a person’s personal income.” Alley v. State, 218 Tenn. 497, 505, 404 S.W.2d 493, 497.

We find no merit in the defendant’s final Assignment complaining that the trial court committed error in declaring that certain State witnesses, who were former employees of the defendant, were hostile.

Affirmed.

DWYER and RUSSELL, JJ., concur.

       During the Assistant District Attorney General’s opening argument he commented about the expansion and growth of the defendant’s slot machine business in Sullivan County in about two years, and included these statements: “and where has this defendant gone in that time? Where has he gone? How far has he come? How far? . . And where was his next step that he almost got into, his own — his own Club. Where was he headed, gentlemen? Where was this man headed? And at what rate of speed was he going? To assume forty-eight percent (48%) of the ownership of the Embers Club with debts of thousands and thousands of dollars, and where was this money coming from? Where was it coming from and where was this man going and what was he going to do? . . . That is why this case is serious. That is why you’ve been here two (2) days. That is why you’ve heard enumerable witnesses, because where was he going, and you don’t do it on nickels and dimes, do you? . . Getting bigger and bigger, and wealthier until he was about to take his next giant step into the ownership of his own Club, and where, after that, would Mr. Squires go? . . . gentlemen, when you’ve watched this — you’ve watched for two (2) days and seen how this man grew, and grew, and where he was going, . Mr. Squires in a very short time permeated the entire County with his activities, and he was going as far as he could go.” When the Assistant District Attorney General concluded his argument, the following colloquy occurred:
      “MR. McINTURFF: Gentlemen of the jury, Mr. Mooney wants to know where he was going. I don’t know, neither does he.
      GENERAL MOONEY: We object, Your Honor. There’s no evidence whether or not Mr. Squires knows.
      GENERAL KIRKPATRICK: Mr. Squires didn’t testify as to whether he knew whether he was going or not.
      MR. McINTURFF: I said, ‘neither does he’.
      MR. McLELLAN: If Your Honor please, we move for a mistrial.

        THE COURT: Gentlemen, gentlemen; now, gentlemen.
      Mr. McINTURFF: I didn’t interrupt you.
      THE COURT: Mr. Mclnturff says he was referring to Mr. Mooney.
      MR. McINTURFF: He’s the one that asked the question. Neither does he. I don’t even know where I’m going, and neither do you.”


author: PER CURIAM.

text:
    LEWISVILLE STATE BANK et al., Petitioners, v. C. F. BLANTON, Respondent.
    No. B-5298.
    Supreme Court of Texas.
    July 16, 1975.
    Gardere, Porter & DeHay, Gordon H. Rowe, Jr., Raymond Sullivan, Dallas, Robert H. Caldwell, Jr., Denton, for petitioners.
    Tom Thomas, Dallas, for respondent.
   PER CURIAM.

C. F. Blanton brought this suit to remove the cloud upon his title to an undivided interest in 15.25 acres of land in Dallas County. The defendants were judgment creditors of W. H. Blanton. The abstracts of their judgments were filed and recorded by the Dallas County Clerk between July 1971 and March 1972. The deed from W. H. Blanton to C. F. Blanton, which effectively conveyed W. H. Blanton’s legal interest in the land, was executed on July 8, 1972.

The trial court rendered summary judgment in favor of C. F. Blanton, and the Court of Civil Appeals affirmed. 520 S.W.2d 607.

The basis of the summary judgment is that C. F. Blanton owned the equitable title to this interest prior to the time of the attachment of defendants’ judgment liens. The summary judgment evidence of this prior title is an affidavit by C. F. Blanton in which he states that he obtained the equitable ownership by agreement with W. H. Blanton in 1969 and by payment of $25,031 to discharge a deed of trust lien and note which W. H. Blanton had made against the land. An affidavit by an interested party to a matter of which the adversaries have no knowledge or ready means of confirmation does no more than raise an issue of fact. The affidavit does not establish the facts conclusively, and it therefore will not support a summary judgment. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972); Broussard v. Moon, 431 S.W.2d 534 (Tex.1968); Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965).

Pursuant to Texas Rules of Civil Procedure, Rule 483 we grant writ of error and, without hearing oral argument, reverse the judgments of the District Court and Court of Civil Appeals, and remand the cause to the District Court for trial.


author: DUNAGAN, Chief Justice.

text:
    Mrs. M. D. McWHORTER et al., Appellants, v. The CITY OF WINNSBORO, Texas, et al., Appellees.
    No. 825.
    Court of Civil Appeals of Texas, Tyler.
    June 12, 1975.
    Rehearing Denied July 24, 1975.

      Paxton, Whitaker & Parsons, Melvin D. Whitaker, Frank B. Murchison, Palestine, for appellants.
    Carlock & Taylor, Winnsboro, for appel-lee City of Winnsboro.
    Roberts, Harbour, Smith, Harris, French & Ritter, Earl Roberts, Jr., Longview, for appellee Snider Industries, Inc.
   DUNAGAN, Chief Justice.

This is a zoning case.

In 1965, the City of Winnsboro passed a comprehensive zoning law. In August, 1974, the City passed an amendatory zoning ordinance changing a R-900-F residential district to a B-2-F secondary highway business district. Mrs. M. D. McWhorter and others have brought suit asking that the ordinance be declared invalid and seeking a temporary injunction to prevent issuance of any building permits for the area. The trial court, sitting without a jury, denied all the relief that the plaintiff-appellants had sought and gave judgment to the city. Findings of fact and conclusions of law were requested and filed.

Appellants present seven points of error. The only attack upon the court’s findings of fact is found in point of error number 7 wherein appellant asserts that “the trial court’s findings of fact No. 7(a) and (e)” has no support in the evidence and “such findings are against the greater weight of credible evidence * * The other points of error attack the court’s conclusions of law. However, all the points are presented' under a single argument, it being that the amendatory ordinance is illegal and void because it amounted to unauthorized spot zoning.

We affirm the judgment of the trial court.

In July, 1965, the city of Winnsboro enacted a comprehensive zoning law which created eleven different zones throughout the city. Seven of the zones created were residential and four were business zones. The block involved in this suit is in the city of Winnsboro and is bounded by East Pine Street on the south, Connie Mae Street on the east, Elm Street on the north and Beech Street on the west. The particular tract involved is approximately the northern two-thirds of this block consisting of 5.29 acres and is known locally as “the Mullinax Homeplace.” Under the original 1965 zoning ordinance, this 5.29 acres was zoned R-900-F residential while the southern one-third, separated by a barbed wire fence, was zoned B-2-F, secondary business district. The areas to the north, east and west are all zoned for residential use and have been so since the original comprehensive act took effect in 1965. Southwest of the concerned areas and across Beech Street is an abandoned ice house which was in existence at the time the 1965 ordinance was enacted and is thus a prior non-conforming use. Directly north of the ice house on Beech Street are three residences which face the Mullinax homeplace. Across Pine Street to the north are residences also. The land directly across from the 5.29 acres on Connie Mae Drive is zoned for residential use but is presently vacant. South of the barbed wire fence which divides the Mulli-nax place from the B-2-F zone is the City Farmer’s Market, a storage shed and a power substation. Four or five months prior to August 19, 1974, Snider Industries purchased the Mullinax place with the intention of using the area as a woodyard and yard for the storage, distribution and shipment of timber, lumber and wood products. Original attempts to rezone the area to permit this use were made on June 10 and July 17,1974, but those attempts were beset with difficulties in statutory procedure. However, on August 19, the City Council and the City Planning and Zoning Commission held a joint meeting and public hearing to determine the rezoning question. After the hearing, the City Council, with the advice of the Planning and Zoning Commission voted to rezone the 5.29 acres from R-900-F residential to a B-2-F secondary highway business district.

A zoning ordinance is an exercise of the legislative power of the City Council and must be presumed to be valid. City of Beliaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43 (1958). An “extraordinary burden” rests on a party attacking an ordinance to show that no conclusive or even controversial issuable facts or conditions exist which would authorize the City Council to exercise the discretion confided to it. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (Tex.Sup., 1955). This presumption of validity applies as well to an amendatory ordinance. City of Waxahachie v. Watkins, supra. However, a zoning regulation should be amended only when public interest requires the amendment, i. e., only when the amendment has a substantial relationship to the health, safety or general welfare of the community. Reic-hert v. Hunter’s Creek Village, 345 S.W.2d 838 (Tex.Civ.App., Houston, 1961, writ ref., n. r. e.); Lubbock v. Stubbs, 278 S.W.2d 519 (Tex.Civ.App., Amarillo, 1954, writ ref., n. r. e.). The determination of when the public interest does require an amendment of a zoning ordinance is within the legislative discretion of the municipality and if reasonable minds may differ as to whether or not the amendatory ordinance has substantial relation to the public health, safety, morals or general welfare, no clear abuse of discretion is shown, and the amendatory ordinance must stand as a valid exercise of the city’s power. Nichols v. Dallas, 347 S.W.2d 326 (Tex.Civ.App., Dallas, 1961, writ ref., n. r. e.).

On the other hand, the Supreme Court has condemned spot zoning, where a small area is singled out for different treatment from that accorded to similar surrounding land without any showing of justifiable changes of condition and especially when such preferential treatment is given in an amendatory ordinance which is contrary to a long-established comprehensive zoning plan. Thompson v. City of Palestine, 510 S.W.2d 579 (Tex.Sup., 1974).

Each case involving possible spot zoning must be decided by an examination of the facts in the particular case. Hunt v. City of San Antonio, 462 S.W.2d 536 (Tex.Sup., 1971); Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704 (1950). However, in those eases in which unjustifiable spot zoning has been determined, a common element present is that each has an area singled out for treatment differing from that of similar surrounding land, thereby creating an island having no relevant difference from its neighbor. Thompson v. City of Palestine, supra; Weaver v. Ham, supra.

In Thompson, the area concerned was surrounded by residences for seven blocks to the north, five to six blocks west, ten to twelve blocks east and six blocks south. In Weaver, the concerned block A-54 was a “* * * tract of land near the center of the Zone A district, and is surrounded by said Zone A District * * *.”

The case of major distinction and one relied on by appellants is Hunt v. City of San Antonio, supra. There, the area concerned was on the perimeter of the “A” zone, but was separated from the adjoining “D” zone by a busy, four-lane thoroughfare. In its determination that the concerned area could not be rezoned from “A” to “D” without creating illegal spot zoning, the court held, when considering the location of the area,

“* * * that this is a distinction without a difference. If the zoned area may be encroached upon from the edge, the effect thereof is to cause the comprehensive plan to collapse like the fall of a row of dominoes when the first in the row is knocked over.”

This court is of the opinion, however, that a difference does in fact exist distinguishing this case from Hunt. Here, there is no major thoroughfare dividing one zone from another. The 5.29 acre tract is actually a part of an entire block, which is divided only by a barbed wire fence, such fence serving as the boundary between the B-2-F zone to the south and the R-900-F zone. Consequently, the rezoning of the R-900-F area is but an extension or enlargement of the B-2-F zone and not an area surrounded by land of different use classification as in Thompson v. City of Palestine, supra; Weaver v. Ham, supra; Goddard v. Stowers, 272 S.W.2d 400 (Tex.Civ.App., Dallas, 1954, no writ); and Burkett v. City of Texarkana, 500 S.W.2d 242 (Tex.Civ.App., Texarkana, 1973, writ ref., n. r. e.).

In City of Waxahachie v. Watkins, supra, suit was brought to have declared void two amendatory zoning ordinances of the City of Waxahachie rezoning a tract of land adjacent to a local retail district from residential to business district. The Supreme Court, in upholding the validity of the rezoning, discussed several factors considered in its decision, one being “its contiguous relation and unitization with the tract lying immediately to the east already zoned for business purposes.” While several other factors were also considered by the court, we feel it significant that the contiguous relation with other business property was one of the elements considered by the court in upholding the amendments.

Several other jurisdictions also consider a contiguous relation the controlling factor in determining whether the amendatory zoning ordinance constitutes spot zoning. In Putney v. Township of Abington, 176 Pa. Super. 463, 108 A.2d 134, the Pennsylvania Court held that the mere extension of an existing commercial area is not spot zoning. The South Carolina Supreme Court held in Bob Jones University, Inc. v. City of Greenville, 243 S.C. 351, 133 S.E.2d 843 (1963), that the granting of a special zoning permit extending an area zoned for commercial use to embrace adjacent property zoned for residential use does not constitute spot zoning. Similar holdings are found in Georgia and Maryland. Neal v. City of Atlanta, 212 Ga. 687, 94 S.E.2d 867; Eckes v. Board of Zoning Appeals, 209 Md. 432, 121 A.2d 249.

With these considerations in mind and remembering the factual distinction of the instant case from Hunt v. City of San Antonio, supra, we are of the opinion that the area rezoned is not a spot zone.

In order to uphold the position of the appellants, we would be compelled to hold that there were no controversial or issuable facts or conditions existing which would authorize the City Council of Winnsboro to exercise a discretion in determining whether or not rezoning is necessary for this area. We would also be compelled to say as a matter of law that the property in question is unsuitable for business purposes and is in fact residential property. We do not believe either proposition to be sound when we consider the record as presented to us. City of El Paso v. Donohue, 163 Tex. 160, 352 S.W.2d 713 (1962).

Many factors supporting the action of the City Council in approving this amendatory ordinance appear affirmatively in the record. The trial court, in its findings of fact, in part, found the following to support its judgment:

“7. The following changes of condition in the area of the 5.29 acres have taken place since the adoption of the comprehensive zoning ordinance in 1965:
“(a) There has been a substantial increase in the traffic on Connie Mae Drive, Beech Street and FM Highway No. 1445, all of which run by the 5.29 acres;
“(b) The City of Winnsboro has established and is operating a farmer’s market adjacent to and immediately south of the 5.29 acres;
“(c) The house situated on the 5.29 acres has been vacated and the entire 5.29 acres is vacant property at the present time;
“(d) No attempt has been made since 1965 to develop the 5.29 acres for residential purposes;
“(e) The 5.29 acres has grown up in weeds and has substantial drainage problem.
“8. There will be extensive benefit to the economy of the City of Winnsboro without disrupting the City’s comprehensive zoning plan and without detriment to the neighborhood.”

From these findings, the court drew, in part, the following conclusions:

“1. The amendatory zoning ordinance adopted by the City Council of the City of Winnsboro on August 19,1974, was and is valid and not void.
U* * *
“3. The amendatory zoning ordinance adopted by the City Council of the City of Winnsboro on August 19,1974 was and is in harmony with a comprehensive plan for the promotion of health, safety, morals and the general welfare of the community.
“4. That the City Council of the City of Winnsboro in adopting its amendatory zoning ordinance of August 19, 1974 extended the existing B-2-F Secondary Highway Business Zoning District to include the 5.29 acres.
“5. The City Council of the City of Winnsboro in adopting the amendatory zoning ordinance of August 19, 1974 did not abuse its municipal discretion in rezoning the 5.29 acres to a B-2-F Secondary Highway Business District.”

We must first recognize the validity of those findings of fact enumerated by the trial court. When specific findings of fact and conclusions of law are filed, no additional findings are requested, and a statement of facts is also brought forward, the findings will be sustained if there is any evidence to support them. Jackson v. Henniger, 482 S.W.2d 323 (Tex.Civ.App., Austin, 1972, no writ); Curtis v. Curtis, 473 S.W.2d 636 (Tex.Civ.App., Tyler, 1971, no writ); Gulf Freeway Lumber Co. v. Houston Investment Realty Trust, 452 S.W.2d 39 (Tex.Civ.App., Houston, 14th Dist., 1970, no writ). All the required elements are present here and we conclude that there is evidence to support these findings.

Appellant questions the weight to be given to these findings upholding the zoning amendment. It is true that the farmer’s market referred to in 7(b) is a produce market which was formerly the Farmer’s Cotton Oil Company. It is located in the B-2-F zone, south of the 5.29 acres and was a permitted business use within that zone in 1965. Consequently, there has actually been no change. The property has simply been altered from one commercial use to another commercial use. In Hunt v. City of San Antonio, supra, one of the alleged changes was the construction, after the enactment of the comprehensive zoning ordinance, of parking lots in a zone which authorized this use. There the court stated:

«* * * js difficult to see how a change in a ‘D’ zone from one ‘D’ use to another ‘D’ use could be such a material change of condition as is necessary to justify rezoning of an adjacent ‘A’ zone.”

Alleged changes 7(c), (d) and (e) concern the actual character of the 5.29 acres itself; that it is vacant, growing up in weeds and that no attempt has been made to develop the tract residentially. In the most recent ease of Thompson v. City of Palestine, supra, the Supreme Court held that the fact that the area concerned was vacant and growing up in weeds was insufficient to warrant a change of zoning. The court stated: “ * * * These were brought about by the owners themselves and are hardly the type of changes that are relevant.” However, in this case, the ownership of the area has changed and the responsibility for creating these changes is difficult to assess. Further, the lack of any effort to develop the area for residential purposes is not actually a change but a conclusion based on the present condition of the area. Therefore, the weight to be given these alleged changes is difficult to evaluate.

Regarding the substantial increase in traffic, testimony was elicited to show a significant increase in the traffic on F. M. Highway 1448 and on both Beech Street and Connie May Street. The city relies on Clesi v. Northwest Dallas Improvement Ass’n., 263 S.W.2d 820 (Tex.Civ.App., Dallas, 1953, writ ref., n. r. e.), to support its contention that increases in traffic would evidence, without more, enough of a change of conditions to constitute a reasonable basis for the rezoning involved. In both the Hunt and Thompson cases, an increase in traffic was also alleged to be a sufficient change of conditions to warrant rezoning. While in both Hunt and Thompson, it was held that the traffic change was insufficient to support amendatory zoning ordinance, in each of these cases there was only one street which had an increase in traffic that touched on the property sought to be rezoned. Here, we have three streets with significant increases in traffic touching the concerned area, thereby distinguishing this case from those two cases.

In each instance, the changes found by the court in the instant case are challenged because of a holding in a spot zoning case. As we have previously stated, we do not believe this to be a spot zoning case. In Baccus v. City of Dallas, 450 S.W.2d 389 (Tex.Civ.App., Dallas, 1970, writ ref., n. r. e., with opinion 454 S.W.2d 391), the court stated:

“ * * * It has been held that such a change (of conditions) is not necessary if the rezoning ordinance bears a reasonable resemblance to the general welfare, to the orderly plan of zoning development and is not objectionable as constituting spot zoning. * * *”

In addition to those changes above listed, the record also reflects evidence of the benefit to the economy of Winnsboro without disrupting the comprehensive zoning plan, evidence that the best use of the 5.29 acres is for commercial purposes and evidence as to the improvement of the neighborhood’s appearance by cleaning up the acreage and meeting certain conditions. Taking the entire record into consideration, we are of the opinion that the ordinance bears a reasonable relationship to the general health, safety and general welfare of the community. As we have previously stated, the record does not present a situation involving spot zoning.

Upon our consideration of the entire record, we conclude that the evidence is sufficient to support the findings and judgment of the trial court. All of appellants’ points of error have been considered and are overruled.

The judgment of the trial court is affirmed.

Affirmed.

      . Testimony also reveals that the land has been used recently as pasture for horses and cattle. As part of the zoning change, the owner of the acreage agreed to abide by the following conditions:
      (A) The owner must provide adequate water drainage on the property;
      (B) A suitable surface material must be placed on the property to minimize dust;
      (C) Fencing and hedging be placed around the property;
      (D) The route of all trucks going into and from the property be designated by the City Council; and
      (E) The owner of the property bear a fair share of the cost of maintenance of Connie Mae Drive.