author: KELLY, Judge.

text:
    STATE of Missouri ex rel. J. S. ALBERICI, INC., Petitioners-Respondents, v. CITY OF FENTON et al., Respondents-Appellants.
    No. 38666.
    Missouri Court of Appeals, Eastern District.
    Jan. 16, 1979.

      David Evans, William R. Dorsey, Clayton, for respondents-appellants.
    Wallach, Miller & McAvoy, Jerome Wal-lach, Fenton, for petitioners-respondents.
   KELLY, Judge.

The appellants appeal from a judgment of the circuit court of St. Louis County ordering Harry Wilson, Director of Public Works of the City of Fenton, to issue a building permit to the respondent, J. S. Alberici, Inc. or the prospective purchaser of the property in question, Union Colliery Company, for the construction of a trash transfer station on a tract of land of approximately thirty-five acres located within the city limits. For reasons hereinafter stated, the judgment of the trial court is reversed and judgment entered in this court pursuant to the authority of Rule 84.14.

The appellants, the City of Fenton, Alvin Strode, Mayor, Florence Hyer, City Clerk, Raymond Nothe, Chairman of the Planning and Zoning Commission, and Harold Wilson, Director of Public Works, were named as respondents in the mandamus action in a petition for writ of mandamus filed on the 6th day of July, 1976, and as party-defendants in an alternative petition for declaratory judgment filed on the 25th day of August, 1976, following the issuance of an alternative writ of mandamus on the 6th day of July, 1976. This litigation grew out of the refusal of the appellants to grant a permit for the construction of a trash transfer station in an area zoned “J” Light Industrial on property owned by the respondent, J. S. Alberici, Inc., on the grounds that the proposed construction would be in violation of Ordinance No. 51, Sec. 19, par. 22 of the City of Fenton prohibiting the use of a building or premises for “. garbage, offal or dead animals, reduction or dumping.”

The appellants contended in the trial court, and so contend here on appeal, that the trial court lacked jurisdiction to proceed with the petition for writ of mandamus and the alternative petition for declaratory judgment for the reason the petitioners in the trial court had not exhausted their administrative remedies pursuant to Chapter 89 RSMo 1969 and Ordinance No. 87 of the City of Fenton. We agree.

The initial question to be resolved is whether the respondent here, J. S. Alberici, Inc., had the requisite standing to bring this action and was, in fact, a real party in interest. This question arises because the evidence is that the respondent entered into an agreement with the Union Colliery Company (hereinafter, the Colliery Company) a wholly owned subsidiary of the Union Electric Company, in September of 1975, whereby the Colliery Company was granted an option to purchase the tract of land in issue from the respondent for the purpose of constructing thereon the trash transfer station. The purchase, however, was contingent upon the Colliery Company obtaining the necessary permits and licenses for construction of the station and occupancy of the land for those purposes. According to the original contract this option to purchase had to be exercised by October 20,1975, but several extensions of the time for performance were granted to the point where the final extension was until 30 days after finalization of the application for the issuance of a building permit.

In January of 1976 the Colliery submitted plans for the station to Mr. Wilson as the Director of Public Works for the City of Fenton, and he informed either the respondent or the Colliery orally that there was a zoning ordinance problem with the plans. This opinion was based upon a letter of the City Attorney expressing his opinion to the Mayor that the proposed use of the property by the Colliery Company would be in violation of Section 19(22) of the Fenton City Ordinance No. 51.

Rather than following the provisions for appeal to the Board of Adjustment contained in Section 3 of Ordinance No. 87, on February 20, 1976, J. S. Alberici, Inc., and the Colliery Company filed a joint petition with the Planning and Zoning Commission of the City requesting a change of zoning to permit the building of the trash transfer station. The Planning and Zoning Commission held public hearings on the petition and recommended that the petition be denied. The Board of Aldermen of the City met on May 17, 1976, to consider the recommendation of the Planning and Zoning Commission, and upon motion duly passed, affirmed the action of the Planning and Zoning Commission denying the petition of J. S. Alberi-ci, Inc. and the Colliery Company.

In June of 1976, the Colliery Company submitted additional plans for the construction of the station to Mr. Wilson, and on or about June 11, 1976, J. S. Alberici, Inc. and the Colliery Company filed a second petition to amend the applicable Ordinance, but at their request further action on this petition was delayed.

On June 28, 1976, a letter signed by J. S. Alberici, Inc. and the Colliery Company was sent to Mr. Wilson demanding that he issue a building permit for the construction of the station. Mr. Wilson responded to this letter by giving the representatives of J. S. Alberici, Inc. and the Colliery Company a copy of some departmental correspondence dated June 28, 1975, from himself to the Mayor advising the Mayor that the project had been disapproved for zoning by his office because the property in question was in violation of Ordinance 51, Sec. 19, par. 22.

Thereafter, on July 6, 1976, the respondent filed its Petition for Writ of Mandamus and thereafter, on August 25, 1976, its Alternative Petition for a Declaratory Judgment. The Colliery Company was not a party to either of these petitions.

We conclude that the respondent is a proper party to this action. Bare legal title constitutes sufficient interest to bring an action at law. Holt v. Myers, 494 S.W.2d 430, 437[5] (Mo.App.1973), and the respondent is the owner of the property here in question.

The crucial question remaining for decision is whether the respondent’s failure to appeal the denial of the building permit for the proposed trash transfer station to the Board of Adjustment of the City pursuant to § 89.100 RSMo.1969 and Ordinance No. 87 of the City requires reversal of the trial court’s judgment.

The exhaustion of administrative remedies is a jurisdictional requirement for a declaratory judgment action. Westside Enterprises, Inc. v. City of Dexter, 559 S.W.2d 638, 641[1] (Mo.App.1977); Ackerman v. City of Greve Coeur, 553 S.W.2d 490, 492 (Mo.App.1977). In each of these cases, zoning matters in which the parties seeking declaratory relief were the subject of the action, the question whether the parties’ failure to follow the review procedure established under § 89.100 RSMo.1969, was a prerequisite to a declaration of their rights was before the appellate tribunal. In each instance it was held that § 89.100 RSMo. 1969 provides a specific method of review which is exclusive and until that method has been exhausted the circuit court lacks jurisdiction to entertain a declaratory judgment action or to grant equitable relief in a case involving the efforts of the property owner to obtain relief from the provisions of a zoning ordinance. The only permissible exception to the exhaustion requirement in zoning matters appears to be where constitutional questions are raised. Bormann v. City of Richmond Heights, 213 S.W.2d 249, 253 (Mo.App.1948); Westside Enterprises v. City of Dexter, supra, l.c. 640. Respondent has not raised a constitutional question here.

Respondent contends that the holding in Ackerman, supra, is inapposite. This argument is without merit, and the cases respondent relies upon in support of this contention—Rosedale-Skinker Improvement Association v. Board of Adjustment of City of St. Louis, 425 S.W.2d 929 (Mo. banc 1968) and Phillips v. Board of Adjustment of City of Bellefontaine Neighbors, 308 S.W.2d 765 (Mo.App.1958)—are distinguishable on the issues involved therein. We are not here dealing with a variance, nor a situation where it is contended that the Board of Aldermen passed an ordinance which it had no authority to pass, as was the issue in those cases.

We conclude therefore that there was available to the respondent an adequate remedy by way of administrative appeal which it chose to ignore.

Respondent not only failed to exhaust its administrative remedies, it also failed to pursue the method of judicial review provided in Chapter 89 and Ordinance No. 87 of the City of Fenton by petition for certiorari. It chose, instead, to proceed by way of § 536.100 RSMo.1969. This has been held improper in American Hog Company v. County of Clinton, 495 S.W.2d 123, 126[4, 5, 6] (Mo.App.1973), where the statutory procedure for review of county zoning matters was set out in § 64.660 RSMo.1969 and the court ruled that declaratory judgments which are authorized under both § 536.100 RSMo.1969 (The Administrative Procedure Act) and § 527.020 RSMo.1969 (The General Declaratory Judgment Act) could not be brought where a different statutory method of review was provided. This holding was applied to proceedings under Ch. 89 RSMo. 1969 in Ackerman v. City of Creve Coeur, supra, l.c. 492, and is controlling under the facts before us.

Respondent argues, however, that mandamus is an appropriate remedy in the context of this case, and it should not be required to exhaust its available administrative remedies prior to the issuance of the writ. As we understand respondent’s argument the issuance of this building permit upon application was mandatory because of the sentence in Section 2 of Ordinance No. 315(a), which reads:

“He (the Building Commissioner) shall receive applications and issue permits for the erection and alterations of buildings and structures and examine the premises for which such permits have been issued and enforce compliance with the Ordinances of the City of Fenton.”

The Building Commissioner’s enforcement powers, hereinafter set out, it argues, do not come into play until after a permit has been issued; this, because a building does not violate use restrictions. It is only the use of a building which can constitute a violation of the ordinances. Therefore, respondent argues, the enforcement of the zoning regulations comes into being only after the building permit has been issued and the premises have been inspected. Because the Building Commissioner refused to issue the building permit, respondent argues the Board of Adjustment had no jurisdiction to entertain an appeal from the ruling of the Building Commissioner.

Section 2 of Ordinance No. 315(a) clothes the Director of Public Works with broad authority. Section 2 of Ordinance No. 315(a) charges the Director of Public Works in his capacity as Building Commissioner to “enforce all ordinances which refer or relate in any manner to construction of any type or kind” and requires that he “act on any question relative to the mode or manner of construction . . . and the location, use, occupancy and maintenance of all buildings and structures.” For this reason we find respondent’s argument untenable, and we are of the opinion that the Building Commissioner is charged with making a determination whether any building for which a permit is sought violates the City’s zoning ordinance prior to the issuance of a permit. In some applications, as is the case here, that determination can be made from the plans filed with the application. If he errs in refusing to issue the necessary building permit, his decision is appealable to the Board of Adjustment. Respondent did not pursue its administrative remedies under the applicable Ordinances or Statutes.

Respondent’s proposed building was undeniably for the construction of a trash transfer station; the Building Commissioner concluded that the proposed use was violative of Section 19(22) of Ordinance No. 51 and denied the application for that reason. This we believe he had the right to do, subject to administrative review.

Respondent seeks to avoid the necessity of the exhaustion of its administrative remedies on the authority of State ex rel. Great Lakes Pipeline Company v. Hendrickson, 393 S.W.2d 481 (Mo.1965). In Hendrickson the court held that mandamus was proper where a village clerk refused to issue a building permit to a pipeline operator which had established a nonconforming use prior to the enactment of a zoning ordinance placing the site in a district classified as “R-l Single Family,” even though the pipeline company had not exhausted its legal remedies by way of an appeal from the refusal to issue the permit. The court there concluded that the duty of the clerk, under the facts of that case, to grant the pipeline’s application and to issue a permit was purely ministerial, and mandamus, therefore, was proper.

The decisive facts in Hendrickson were that the pipeline company had applied to the Jackson County authorities for a permit before it began building the pumping station, and was informed that the county authorities had no jurisdiction because Lone Jack had been incorporated. The relator then inquired if a zoning ordinance had been enacted and an attorney acting for the Village informed relator that no ordinance had been enacted and none was contemplated at that time. Armed with this information, the relator began constructing the pumping station and while so engaged learned that an ordinance had, in fact, been enacted by the Village of Lone Jack. At the time the ordinance was passed the relator had already expended or obligated itself to expend, $64,000 in the undertaking and when it learned of the ordinance, it applied to the Village Clerk for a permit on the theory that the pumping station was a nonconforming use. The Village Clerk denied the permit on the advice of the Village Attorney. It was because the pumping station was in the process of construction when the ordinance was enacted and therefore constituted a non-conforming use that made the issuance of the permit purely ministerial and the granting of the writ appropriate in Hendrickson. However, those are not the facts here.

Mandamus, being an extraordinary legal remedy, should not issue unless the party seeking the writ shows a “ ‘clear, unequivocal, specific right to have performed the thing demanded and that the defendant or respondent has a corresponding duty to perform the action sought.’ ” State ex rel. Patterson v. Tucker, 519 S.W.2d 22, 24[5] (Mo.App.1975). The respondent did not satisfy this standard, and we hold therefore that the writ was inadvisedly issued, because there was available to the respondent an adequate and available remedy by way of administrative review which was not exhausted.

While we might reverse and remand this cause to the trial court for further proceedings, we have chosen to exercise the power conferred upon this court by Rule 84.14 and enter the judgment which should have been entered in the trial court and thereby bring this litigation to an end. We therefore reverse the judgment of the trial court on both the declaratory judgment action and the petition for writ of mandamus and enter a judgment dismissing the petition of J. S. Alberici for declaratory judgment and quashing the writ of mandamus heretofore issued, at respondent’s cost.

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

      . This appeal is limited to the refusal of the Director of Public Works to grant the building permit. The record indicates that in addition to seeking the permit, the Colliery Company also requested an amendment to the City Ordinance, but this too was refused. However, this action of refusing the amendment to the Ordinance was not under attack in the trial court and therefore we do not consider this question.

      . We do not reach appellant’s Point II, relative to the trial court’s construction of Ordinance No. 51, Section 19. Paragraph 2(22) because of our holding with respect to Point I of appellant’s Points Relied On which makes it unnecessary that we rule on that Point.


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    SHADY VALLEY PARK & POOL, INC., Appellant, v. Anthony DIMMIC, Respondent.
    No. 39591.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 16, 1979.

      Anderson, Brooking, Hammon & Dieffen-bach, A. W. Dieffenbach, Jr., Larry W. Mohl, Hillsboro, for appellant.
    James L. Zemelman, Morris A. Shenker, E. Michael Murphy, St. Louis, for respondent.
   CRIST, Judge.

This is a contract action for the payment of fish ordered by telephone by a non-resident buyer. Plaintiff is a corporation engaged in the sale of fish in Jefferson County, Missouri. Defendant resides and does business in Collinsville, Illinois.

Plaintiff filed its petition alleging that on May 3, 1975 defendant telephoned plaintiff at its place of business in Missouri, and ordered a quantity of fish to be delivered in Illinois. The petition alleged full performance of the contract by plaintiff, but that defendant had breached the contract by non-payment.

Plaintiff then filed an affidavit alleging that one Gene Lambrich accepted the defendant’s telephonic offer immediately upon its receipt. There is nothing in the affidavit showing that Gene Lambrich was authorized by plaintiff corporation to accept the offer in its behalf.

The trial court dismissed plaintiff’s petition on the ground that it had no jurisdiction. The question presented is whether plaintiff has alleged sufficient facts to subject an Illinois defendant to in personam jurisdiction of a Missouri court. We believe the answer to be in the negative.

Plaintiff contends that the trial court had jurisdiction by reason of Rule 54.06, which reads, in part as follows:

“(a) Service outside the state sufficient to authorize a general judgment in per-sonam may be obtained upon any person, his executor, administrator or other legal representative, firm or corporation, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts enumerated in this Rule:
(1) Transacts any business within this state;
(2) Makes any contract within this state . . . .”

The place where the final act occurs which makes a binding contract is the place of contract. Thacker v. Massman Const. Co., 247 S.W.2d 623 (Mo.1952); Servco Equipment Co. v. C. M. Lingle Co., 487 S.W.2d 869, 870 (Mo.App.1972). Plaintiff’s petition and affidavit do not aver sufficient facts to show that the contract was made in Missouri.

The making of a promissory note in Missouri constitutes the transaction of any business. First National Bank v. Ward, 380 F.Supp. 782 (W.D.Mo.1974). One conference in Missouri was the transaction of any business when the conference was preliminary to the execution of a contract. American Hoechst Corp. v. Bandy Laboratories, Inc., 332 F.Supp. 241 (W.D.Mo.1970); State ex rel. Farmland Industries, Inc. v. Elliott, 560 S.W.2d 60 (Mo.App.1977). Plaintiff’s petition and affidavit do not show the transaction of any business in Missouri.

The judgment is affirmed.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. Mattie McMULLIN and Samuel McMullin, Appellants.
    Nos. 39979, 39980.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 16, 1979.
    Timothy F. Ruddy, Cape Girardeau, for appellants.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Bradshaw Smith, Pros. Atty., Cape Girardeau, for respondent.
   CLEMENS, Judge.

A jury found defendants Mattie and Samuel McMullin guilty of attempting to obtain $5,009 from the Cape Mutual Insurance Company (hereafter “insurer”) by means of a “confidence game.” (Sec. 561.-450, RSMo.1969). The court sentenced each defendant to a one-year term of imprisonment but placed Mattie McMullin on probation. Defendants have appealed.

The evidence: The insurer’s fire policy covering defendants’ dwelling and contents; a fire consumed defendants’ dwelling several weeks after they had moved most of their belongings to their son’s garage; noncombustible remains usually found in such fires were searched for but not found by the fire department or insurer’s investigator; defendants’ detailed description of the contents in their house before the fire; defendant’s proof of loss and inventory of damaged contents listed some items found in their son’s garage; defendants looked for a residence in another town for over two years but were unable to locate a buyer for their home; and while neighbors and firemen were salvaging furniture and extinguishing the flames one defendant watched the fire from a lawn chair in the backyard and several times said, “Let it burn,” and, “Why don’t they let it burn?”

Seeking reversal, defendants contend the court erred in denying their motion for acquittal made at the close of the state’s case because the evidence was insufficient to establish the offense. By offering evidence in their own behalf defendants waived any error in denying their prior motion for acquittal. And, by failing to again move for acquittal at the close of all the evidence defendants waived their claim of insufficient evidence. State v. Brown, 554 S.W.2d 574 [15-17] (Mo.App.1977). Aside from this, our review of the evidence shows there was no plain error in denying defendant’s contention of insufficient evidence.

By defendants’ remaining point they contest the trial court’s denial of their challenge for cause to venireman Suedekum who said she had a long social acquaintance with state’s witness Whitler, one of the insurer’s officers. The following ensued after defense counsel had asked a series of vague questions and interrupted the venireman’s answers:

“MR. RUDDY: What is your answer, Ma’am?
MRS. SUEDEKUM: Well, what was your question?
MR. RUDDY: Now, Mrs. Suedekum, if this gentleman [Mr. Whitler] is called to testify on behalf of the State would you give his testimony more weight? In other words, is he more, more believable, do you think, because you know him and are acquainted with him than that would be the case of a total stranger?
MRS. SUEDEKUM: Well, I don’t know how to answer that truthfully. Would, would you take preference to one person over another?
MR. RUDDY: Well, this is my question to you, Ma’am.
MRS. SUEDEKUM: Well, maybe it would, sir.”

In denying defendants’ challenge for cause the trial court commented: “I thought she answered your question, which was rather poorly worded, that gave the effect to me that she would not, at least to me, that she said it would depend on the circumstances, I think, what she indicated.”

At most, Mrs. Suedekum’s equivocal answer was that she might give Mr. Whit-ler’s testimony more weight than that of a total stranger. The question and answer hardly demonstrate prejudice absent knowledge of just what Mr. Whitler would testify to. Absent a clear showing of a venireman’s prejudice, which the record does not show, we will not convict the trial court of abusing its discretion in denying defendant’s challenge for cause. State v. Holliman, 529 S.W.2d 932 [6, 7]. Further, the record fails to show defendants were prejudiced. Mr. Whitler merely gave unchallenged testimony identifying the defendants’ fire insurance policy, an uncontested fact.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


text:
    STATE of Missouri, Respondent, v. Gene ALFORD, Appellant.
    No. 40198.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 16, 1979.
    Joel B. Eisenstein, Thomas A. Palumbo, St. Charles, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Sam C. Ber-tolet, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

Defendant Gene Alford was found guilty of burglarizing a gas station. Under the Second Offender Act the court sentenced him to seven years’ imprisonment and he has appealed.

For two reasons, we find nothing has been preserved for review. First, defendant’s motion for new trial was filed twelve days after expiration of the ten days’ time allowed. Rule 27.20(a), VAMR; State v. Laden, 536 S.W.2d 880 [2] (Mo.App.1976). Second, each of his three points relied on fails to state wherein and why the trial court erred. Rule 84.04(d); State v. Morrow, 541 S.W.2d 738 [16] (Mo.App.1976).

On our own motion we have considered each of defendant’s three contentions as plain error: (1) While still wearing handcuffs he was briefly and inadvertently seen by the jury. The court told the jury this was a mistake and denied a mistrial. We find no abuse of discretion. Compare State v. Beal, 470 S.W.2d 509 [8, 9]. (II) It was not prejudicial error to admit evidence of defendant’s fingerprint found in an automobile from which his tracks in the snow led to the burglarized gas station. (Ill) On two occasions, just before and during trial, defendant unsuccessfully sought to discharge his counsel. The trial court correctly found defendant’s reasons were both insubstantial and untimely. Compare Evans v. State, 467 S.W.2d 920 [3] (Mo.1971), and State v. Hollins, 512 S.W.2d 835 [7] (Mo.App.1974). In none of the instances do we find an injustice or miscarriage of justice.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.

      . “I. It was prejudicial error for the Court to deny defendant’s request for a mistrial after the jury had seen defendant in the courtroom in handcuffs.
      “II. It was error for the Court to receive as evidence the latent print which was lifted from the rear view mirror of the automobile found in the alley.
      “III. It was prejudicial error to deny Defendant’s request to discharge his attorney, both prior to trial and again during trial.”


author: BILLINGS, Judge.

text:
    In re the MARRIAGE OF James Cecil CHILTON and Kathy Lorine Chilton. Kathy L. Chilton, Appellant, and James C. Chilton, Respondent.
    No. 10486.
    Missouri Court of Appeals, Southern District, Division Three.
    Jan. 18, 1979.
    Donald E. Lamb, Centerville, for appellant.
    David G. Neal, Eminence, for respondent.
   BILLINGS, Judge.

This appeal arises from the decree entered in a dissolution of marriage proceeding. Appellant-wife seeks reversal of the award of custody of the minor son to respondent-husband, and contends the court erred in the division of the parties’ property and denying her attorney fees and costs to prosecute this appeal.

We first consider the custody award. The parties were married September 1, 1971, when James was 31 and Kathy was 17. Their only child was born in 1972 and at time of trial was nearly four years of age. The decree awarded James primary custody, with Kathy having custody every other weekend.

Kathy contends that because she is the mother of the child and because of his age, she is the preferred custodian under the law. We are cited to cases which recognize there is a presumption that the mother of a child of tender years is the preferred custodian, all things being equal. James, on the other hand, asserts that the record does not support a showing of abuse of discretion by the trial judge and that his determination of custody should not be lightly overturned.

We have read the transcript and are convinced the experienced trial judge who presided considered the guidelines for the award of custody contained in § 452.375, RSMo 1969, as well as the presumption mentioned above. Consequently, we will defer to the trial court’s determination of this difficult and soul-searching matter unless we are firmly convinced that the welfare of the child requires some other disposition. C_ v. B_, 358 S.W.2d 454 (Mo.App.1962). Here, we conclude the trial judge “was in a better position not only to judge the credibility of the witnesses and the persons directly but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” E_ (S_) v. E_, 507 S.W.2d 681 (Mo.App.1974). (Emphasis theirs).

In a similar situation, the St. Louis District of this court said in Johnson v. Johnson, 526 S.W.2d 33 (Mo.App.1975):

“We agree that such a presumption [in favor of the mother] exists, but we do not find it to be conclusive. Each case must be decided on its own facts. In Brand v. Brand, 441 S.W.2d 750 (Mo.App.1969), there was no evidence that either parent was unfit. The court awarded custody of the children to the father despite the presumption in favor of the mother’s care. The court held that where the evidence did not preponderate in favor of either party the trial court is vested with broad discretion in awarding custody under such circumstances.”

On the record presented in this case we cannot say that the trial court’s award of custody to the father, rather than the mother, constitutes an abuse of discretion.

The lower court found and determined that the real and personal property owned by the parties was marital property and divided it. We have reviewed the transcript and conclude there is substantial evidence to support the division of property and no error of law appears. This point is affirmed pursuant to Rule 84.16(b).

Finally, Kathy has asked that this Court award her attorney fees and expenses for the prosecution of this appeal. Only the Circuit Court may make such an award; we are without jurisdiction to do so, and the request must therefore be denied. Webb v. Webb, 475 S.W.2d 134 (Mo.App.1971).

The judgment is affirmed.

FLANIGAN, C. J., and HOGAN, J„ concur.


author: BROCK, Justice.

text:
    J. C. BRADFORD & CO., Petitioner, v. MARTIN CONSTRUCTION COMPANY and Martin L. Zeitlin, Respondents.
    Supreme Court of Tennessee.
    Feb. 5, 1979.
    William Waller, Ames Davis, Nashville (Waller, Lansden, Dortch & Davis, Nashville, of counsel), for petitioner.
    John D. Whalley, John W. Lewis, Nashville (Barksdale, Whalley, Gilbert & Frank, Nashville, of counsel), for respondents.
   OPINION

BROCK, Justice.

This is a civil action by a stockbroker to recover alleged debit balances in the account of a client. Although satisfied that the merits of this controversy were properly determined by the Middle Section of the Court of Appeals, we granted certiorari to consider the construction by that court of T.C.A., § 27-303, which provides:

“All cases tried in a court of record without the intervention of a jury, whether in a court of equity or a court of law and whether tried according to the forms of chancery or according to the forms of law, jurisdiction to review which is in the Court of Appeals, shall be reviewed upon a simple appeal, as now provided in equity cases. In all such cases no motion for a new trial shall be necessary as a prerequisite to a review of either the final judgment or any order of the court preliminary thereto, but when the case is tried on oral evidence a bill of exceptions shall be filed and included in the transcript. In all such cases the hearing of any issue of fact or of law in the appellate court shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the judgment or decree of the trial court, unless the preponderance of the evidence is otherwise.”

No bill of exceptions was included in the record on appeal, but the “technical record,” including written findings of fact made by the Chancellor, was properly filed. Those findings of fact constituted the basis for assertions by the appellant, J. C. Bradford & Co., of certain errors of law alleged to have been committed by the Chancellor.

Although the Court of Appeals reviewed the technical record, considered the assignments of error made by the appellant and affirmed the conclusions of the Chancellor with respect thereto, it, nevertheless, discussed at length the history and construction of T.C.A., § 27-303, noting that a disagreement with respect to its proper construction in cases in which no bill of exceptions is filed had developed over the years between the Middle Section of the Court of Appeals and other courts of this State. It was the conclusion of that court, relying upon its own decision in Fletcher v. Russell, 27 Tenn.App. 44, 55, 56, 177 S.W.2d 854 (1943), that alleged errors of law that are “based upon” findings of fact made by the trial court are not reviewable unless a bill of exceptions has been duly filed and is available for consideration by the Court of Appeals, although those findings of fact are properly included in the technical record. The court simply refused to accept the written findings of fact of the Chancellor which were included in the technical record pursuant to T.C.A., § 27-113. See Findlay v. Monroe, 196 Tenn. 690, 270 S.W.2d 325 (1953). Thus, the court failed to follow the well settled rule in this State that when no bill of exceptions is in the record it is “conclusively presumed” on appeal that the findings of fact made by the trial court are supported by the evidence heard in that court and must be accepted as true by the appellate court. Dodd & Son v. Nashville, C. & St. L. Ry. Co., 120 Tenn. 440, 445, 110 S.W. 588 (1908); Findlay v. Monroe, supra.

In our opinion, the Court of Appeals erroneously construed T.C.A., § 27-303. As construed by that court, in nonjury cases appealed without a bill of exceptions, the only questions of law reviewable by the Court of Appeals under T.C.A., § 27-303, are such questions of law as appear upon the face of the pleadings and judgment of the court; issues of law which require the assumption of the correctness of written findings of fact made by the trial court and properly included in the technical record would not be subject to review. The Court of Appeals is clearly in error. This Court in Findlay v. Monroe, supra, set forth the correct principles to be applied in the situation here presented as follows:

“The findings of fact were embodied in an opinion signed by the Judge and filed in the cause. It thereby became a part of the record without being incorporated in a bill of exceptions. Nashville, C. & St. L. Ry. Co. v. Smith, 147 Tenn. 453, 455, 249 S.W. 377.
“Where there is no bill of exceptions it will be presumed on appeal that the evidence supports the facts as found by the Trial Judge in his signed and filed opinion. Dodd & Son v. Nashville, C. & St. L. Railroad Co., 120 Tenn. 440, 445, 110 S.W. 588. This, of course, does not mean that the conclusions of law which a Trial Court reaches from that finding of fact must be assumed to be correct.
“Since the technical record, including these findings of fact, is sufficient to decide the determinative question made by this appeal, the motion to dismiss will be disallowed.” 270 S.W.2d at 327.

Accord, Ackerman v. Marable et al., 20 Tenn.App. 141, 143, 95 S.W.2d 1286 (1934); Providence A. M. E. Church v. Sauer, 45 Tenn.App. 287, 323 S.W.2d 6 (1959).

To the extent that the decision in Fletcher v. Russell, 27 Tenn.App. 44, 177 S.W.2d 854, 858-59 (1943), holds to the contrary, it is overruled.

Of course, if a bill of exceptions is filed as a part of the record on appeal, the appellate court, in a nonjury case, may make a de novo determination of the facts and is not bound by the findings of fact made by the trial court. T.C.A., §§ 27-303, 27-304. But, any party desiring to obtain such a review of the facts must have a bill of exceptions prepared and filed.

Likewise, in nonjury cases in which the trial judge has made written findings of fact that are properly included in the technical record, any party who would avoid the conclusiveness of those findings in the appellate court must see to it that a bill of exceptions is filed in the record on appeal and, thus, made available to the reviewing appellate court.

The other assignments of error made by the petitioner have been considered but the Court is satisfied that the Court of Appeals correctly determined them. The decree of the Court of Appeals is affirmed. Costs are taxed against petitioner.

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


author: O’BRIEN, Judge.

text:
    Carl Lee HARRIS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 1, 1978.
    Certiorari Denied by Supreme Court Aug. 7, 1978.

      Shelburne Ferguson, Jr., Kingsport, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, R. Jerry Beck and Michael May, Asst. Dist. Attys. Gen., Blountville, for appellee.
   OPINION

O’BRIEN, Judge.

Carl Lee Harris was indicted and convicted in the Criminal Court of Sullivan County for armed robbery. He was sentenced to thirty years in prison. On appeal to this court his conviction was affirmed and the penalty reduced to not less than ten years nor more than ten years, the minimum sentence for armed robbery, because of an erroneous instruction to the jury. At the time of defendant’s trial and conviction T.C.A. Sec. 40-2707 required jury instructions on certain other pardon and parole statutes. Subsequent to defendant’s conviction, and prior to the time his appeal was argued in this court, our Supreme Court held in Farris v. State, 535 S.W.2d 608, (Tenn.1976), that the pertinent parts of T.C.A. Sec. 40-2707 were unconstitutional and void. On defendant’s original appeal we affirmed the judgment of the trial court as to his guilt. In light of the ruling in Farris, supra, his sentence for armed robbery was reduced subject to State approval of the reduction in sentence with the proviso that in the absence of the State’s consent the case was to be retried solely on the issue of punishment. The State declined to accept the reduction in penalty. The case was retried before a new jury on the issue of punishment. Defendant’s sentence was set at twenty-one years in the State Penitentiary. This appeal followed.

The defendant makes two assignments of error, he says; (1) the court erred in overruling his motion raising the issue of double jeopardy and the issue of sublimation of the decision of this court to the wishes of the District Attorney General respecting the degree of punishment; (2) the court erred in entering a plea of guilty on behalf of the defendant.

As to the first issue, defendant argues that he has been forced into a situation which violates rights guaranteed to him by the Fifth Amendment to the Constitution of the United States. It is defendant’s insistence that he has been tried for the second time for the same offense and punishment has been meted out to him for the second time. He cites as authority the United States Supreme Court cases of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413.

We are of the opinion that defendant’s position is not well taken. Our decision is based precisely on those cases cited by defendant. The Rice case, supra, as it applies here, does no more than emphasize the rule stated in Pearce, that a person may be resentenced; and adds that even a more severe sentence imposed at a second trial does not invalidate the conviction. In stating that conclusion the United States Supreme Court said:

“. . .It could not be clearer, however, that Pearce does not invalidate the conviction that resulted from Rice’s second trial; Pearce went no further than to affirm the judgment of the federal court ordering Pearce’s release ‘upon the failure of the state court to resen-tence Pearce within 60 days . . . .’ 395 U.S., at 714, 89 S.Ct., at 2075 . . Pearce, in short, requires only resentenc-ing; the conviction is not ipso facto set aside and a new trial required. . . . ”

In Pearce, supra, the defendant was convicted and sentenced to a prison term of twelve to fifteen years. The conviction was reversed in a subsequent post-conviction proceeding. He was retried, convicted, and sentenced to a term which amounted to a longer total sentence than that originally imposed. A habeas corpus petition proceeding was filed in the Federal District Court which ruled that Pearce must be resen-tenced because the longer sentence imposed upon retrial was unconstitutional and void. The United States Supreme Court granted certiorari and ruled on several issues we deem warrant clarification as they are involved in this case. (1) The constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully credited in imposing sentence upon a new conviction for the same offense. (2) Neither the double jeopardy provision nor the equal protection clause imposes an absolute bar to a more severe sentence upon recon-viction. (3) Whenever a more severe sentence is imposed upon a defendant after a new trial, the reasons for doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.

In Farris v. State, supra, our Supreme Court cited from Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900, in which both the offense and the penalty were reduced on appellate review. In respect to the State’s consent and the necessity therefor the court quoted as follows:

“The State has an equal right with the defendant to have the jury fix the term of imprisonment. Since the State may feel that upon reversal and new trial a verdict might be obtained on conviction of defendant for petit larceny properly fixing his imprisonment at a longer term than the minimum of one year provided by statute, we feel that the action heretofore indicated should not be taken except upon the State’s consent.”

Although the reasons for the reduction in penalty in Corlew, and in Farris, were dissimilar, it is clear that in Farris the court was taking into consideration the societal interest in punishing a defendant whose guilt was clear after he had received a fair trial on the merits. There is no prohibition against the procedure, nor is there any Federal Constitutional violation under the authorities submitted by this defendant. No more do we find any abrogation of his State Constitutional Rights under Article 1, Section 10 of the Constitution of the State of Tennessee as urged by defendant in the trial court. There is no double punishment since defendant is entitled to full credit for all time served on the conviction offense. North Carolina v. Pearce, supra. We overrule the assignment.

The contention that it was error for the trial judge to enter a plea of guilty on behalf of the defendant also must fall. The manner in which the jury was informed that their only duty was to fix the punishment is not material. In establishing the criteria for the procedure in Farris v. State, supra, the Supreme Court adopted the guidelines for sentencing from Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738, as follows:

“Thus both sides may introduce proof as to how the assault was committed, the injuries, aggravation or mitigation, etc., so that the jury may properly fix the penalty. The trial judge should charge the jury that the plaintiff in error is guilty of assault and battery and that the fixing of the punishment is all they are to do.” (Emphasis supplied).

Defendant was properly tried and found guilty at his original conviction proceeding. On remand the evidence presented against him was minimal. Defendant was given the opportunity to present any evidence pertinent to the issue of his punishment. The sentence of twenty-one years meted out by the jury does not exceed the punishment received at his original conviction proceeding.

We affirm the judgment of the trial court.

RUSSELL, J., and W. WAYNE OLIVER, Special Judge, concur.


author: WALKER, Judge.

text:
    Charles Reagan CAMPBELL, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 8, 1978.
    Certiorari Denied by Supreme Court Dec. 4, 1978.
    Robert C. Newton, Bristol, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. DeLaney, Asst. Atty. Gen., Nashville, R. Jerry Beck, Asst. Dist. Atty. Gen., Kings-port, for appellee.
   OPINION

WALKER, Judge.

After an evidentiary hearing, the designated trial judge denied the petitioner’s application for postconviction relief by which the petitioner seeks to have reinstated the period to apply for certiorari to our Supreme Court. From that order of dismissal, the petitioner, Charles Reagan Campbell, appeals to this court.

Campbell is serving a 99-year sentence for first degree murder imposed in Sullivan County. On direct appeal, we affirmed the conviction in an unreported opinion of July 9,1971. There was no petition for certiora-ri. Campbell escaped from prison on October 15, 1971, and was recaptured on March 1,1976, after an absence of nearly four and one-half years.

After his return, Campbell brought this petition for postconviction relief, alleging that he had been denied his right to petition our Supreme Court for certiorari. He says that neither the attorney appointed to represent him at trial nor the attorney employed to handle the motion for new trial and appeal told him of his right to certiorari and that it was his understanding that his retained counsel had agreed to take the case to the state Supreme Court.

The state urges that the appellant has waived his right to seek further review of his conviction by his escape and resulting delay of more than six years in raising this attack on his conviction. The cases on which the state relies, however, are factually distinguishable from the one at bar. Each of them involved escape either pending a new trial motion or pending appeal. In such situations, the act of escape was, indeed, held to waive the right to appeal, the theory being that if a defendant is not in custody (or otherwise under the court’s control) he cannot be made to comply with any order the court may issue. See Bradford v. State, 184 Tenn. 694, 202 S.W.2d 647 (1947); Garrett v. State, 534 S.W.2d 325 (Tenn.Cr.App.1975).

Unlike the defendants in these cases, Campbell was in custody throughout the time when his appeal was processed. He escaped in October 1971 following the affirmance of his conviction on July 9,1971, after the 45-day period for applying for certiorari had lapsed in August and even after the maximum 90-day extension which a member of the Supreme Court, under TCA 16-452, may grant on application. Even in instances of escape, there is no waiver of the right to appeal so long as the defendant is in custody at the time the appeal is heard. Knight v. State, 190 Tenn. 326, 229 S.W.2d 501 (1950). For this reason, Campbell did not waive his right to petition for certiorari during the period when he could have petitioned for that writ as of right.

As for the delay in bringing this attack, the statute permits the filing of a petition by a prisoner in custody after exhaustion of his appellate remedies so long as the sentence has not yet expired or been fully satisfied. TCA 40-3802. Since Campbell’s 99-year sentence has not expired and he has no appellate remedies presently available to him, the petition is not too late and deserves consideration.

In holding this result appropriate, we distinguish Brown v. State, 537 S.W.2d 719 (Tenn.Cr.App.1975), relied on by the state, in which we said that a fugitive from justice had waived his right to appeal and in which we also held the rule applicable to postconviction procedures. In Brown, the petitioner had fled while on bond pending his motion for new trial, and because of his flight, his motion for new trial was never filed or heard and no appeal was taken. By the time of his capture, the time for taking these steps in the appellate process had passed. Thus, Brown is factually distinguishable from Campbell’s situation because Campbell was in custody at all times during the processing of his appeal. See also Summerall v. State, 560 S.W.2d 413 (Tenn.Cr.App.1977). Having determined that there was no waiver, we proceed to the merits of this petition.

Although appointed counsel was not relieved as of record when retained counsel was employed, it is clear that the appellant did not want him to take any further part in his appeal and that he had no further duties. Campbell does not claim that appointed counsel had any further responsibility.

Campbell’s retained attorney was employed by Walter Minnick, a relative of the appellant. The retained counsel testified, contrary to Campbell, that he was employed to represent him only through the first level appeal, which he had done. He was assisted by an office associate who was unavailable for the hearing and who had had no further contact with Campbell. After our affirmance, retained counsel wrote Campbell, advising his client that his professional opinion was that his best chances for release were by parole or pardon and admonishing him to be a model prisoner if he wanted to enhance his chances for relief by those channels. He did not mention to Campbell the possibility of petitioning for certiorari.

Even though retained counsel’s contract with Campbell’s relative was limited to the first level appeal, it is still necessary to inquire whether or not he had any duty to inform his client of his right to petition for certiorari. The record does not show that Campbell was ever told of that avenue of review, although it appears that counsel discussed that possibility with the relative before writing Campbell that he and the kinsman would seek a parole for him after a reasonable interval.

Under these circumstances, in accordance with the principles outlined in Moultrie v. State, 542 S.W.2d 835 (Tenn.Cr.App.1976), Campbell is entitled to petition for certiora-ri. Accordingly, we vacate our judgment of July 9, 1971, affirming the appellant’s conviction, and re-enter it this date in order that the time to petition for certiorari may commence from today. Court appointed counsel on this appeal will prepare the petition for certiorari.

TATUM and DUNCAN, JJ., concur.


author: BYERS, Judge.

text:
    Robert Lewis DRAKE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Sept. 13, 1978.
    Certiorari Denied by Supreme Court Dec. 18, 1978.

      Shelby L. Haywood, Lewisburg, for appellant.
    Brooks McLemore, Jr., Atty. Gen., William O. Kelly, Asst. Atty. Gen., Nashville, James S. Kidd, Dist. Atty. Gen., Fayette-ville, Rondal T. Wilson, Asst. Dist. Atty. Gen., Shelbyville, for appellee.
   OPINION

BYERS, Judge.

The Appellant was convicted of second (2nd) degree murder and sentenced to serve twenty-five (25) years in the penitentiary.

On January 12, 1977, at approximately 10:30 p. m. the Appellant and a woman were in his home when they heard a disturbance at the front door. The Appellant observed the deceased, a girl friend, who had broken a glass in the door and was attempting to enter his home. The Appellant dissuaded her from this course of action and she left. At approximately 1:30 a. m. on January 13, 1977, the Appellant and the woman who was in the home heard the deceased, who was outside the window of the bedroom which they were in, cursing and threatening to “get” the Appellant. Again, the deceased went away.

At 10:30 a. m. on the same date the deceased returned to the Appellant’s home and entered. She was fatally wounded by a shot from a 20 gauge shotgun. The Appellant was alone in his home at the time and was, of course, the only surviving witness to what occurred there.

The Appellant, at trial, testified that the deceased had come to his home at approximately 10:30 a. m. on the date she was killed and had entered the house by reaching through the place where she had broken the glass on the previous evening and unlocking the door. He says she advanced on him making threats and he saw what he thought was a weapon being held in her hand which was partially inside her coat pocket. He related that he was afraid she would injure or kill him and that he pointed the shotgun at her to frighten her away. He contended he did not mean to kill her and the killing was done accidentally. A police officer testified that the Appellant had stated to him when he arrived at the scene that the killing was an accident.

The police found a pocketknife in the deceased’s coat pocket when they searched her clothing. The knife was unopened.

In three (3) assignments of error the Appellant attacks the sufficiency of the evidence to support the verdict. Additionally, he says the verdict indicates passion, prejudice and caprice by the jury; there was error in the admission of a photograph showing the deceased lying where the shooting occurred; there should have been a charge given on accidental shooting as a defense; a directed verdict should have been granted at the end of the State’s proof and at the conclusion of all the proof; there should have been a mistrial granted because the State showed the Appellant did not make any statement after being given his Miranda warnings and the trial court committed error in not allowing him to argue the theory of accidental killing to the jury.

We overrule all of the assignments of error except the assignment going to the showing that the Appellant did not make any statement after being advised of his rights, and the assignment concerning the trial judge’s prohibiting the argument of accidental killing.

We sustain those, reverse the judgment and remand the case for a new trial.

We are of the opinion the evidence is sufficient to support the verdict of the jury finding the Appellant guilty of murder in the second (2nd) degree and fixing the punishment at twenty-five (25) years. However, we cannot say their view of the evidence was not affected by the introduction of evidence that the Appellant exercised his right to not make any statement and the refusal of the trial judge to allow the defense attorney to argue the theory of accidental killing to the jury.

The photograph complained of did show the wound of the body in stark relief. However, there was a dispute in the distance the deceased had penetrated into the home. This photograph was relevant on this issue and therefore there was no error in its admission into evidence. Contrary to the Appellant’s argument, another photograph showing the deceased lying on the floor did not clearly show this distance.

The Appellant did not request a charge on accidental shooting and thus cannot now complain of the failure of the trial court to give such a charge. The charge given by the trial court defining involuntary manslaughter, although less broad than apparently desired by the Appellant, did describe accidental death in relation to this degree of homicide.

At the close of the State’s proof, the Appellant offered evidence, after an adverse ruling on his motion for a directed verdict, thus precluding any claim of error on this basis. State v. Jones, 533 S.W.2d 326 (Tenn.Cr.App.1975). At the close of Appellant’s proof there remained a conflict in the evidence which was properly submitted to the jury after the trial court again overruled the motion for a directed verdict.

The following occurred which gave rise to the assignment concerning the exercise of Miranda rights:

“Q Did you attempt to interview the defendant?
A Yes, sir, I did.
Q After accordingly given him his rights?
A Yes, sir.
Q But no statement was taken from him?
A No, sir. He advised me that he wanted his lawyer.
MR. HAYWOOD: Now, I’m going to object to that, and am going to move for a mistrial. Now, that’s getting into an area that’s very dangerous, Your Honor.
MR. WILSON: I think it’s absolutely encumbent [sic] upon the State—this Jury is entitled to know all that our investigation revealed. I’m not trying to raise any inference by it. I simply asked the man if he advised him of his Rights, and if any statement was taken from him. And he said, “No”.
MR. HAYWOOD: He can ask if he was advised of his Rights.
THE COURT: Well, I am going to overrule the objection at this point, with special instructions at the end of such comments and inquiries on that matter.”

No curative instructions were given on this matter.

An accused is not required to make a statement when questioned by officers and the exercise of the right to remain silent or confer with counsel may not be used against him on trial. See Ware v. State, 565 S.W.2d 906 (Tenn.Cr.App.1978); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Braden v. State, 534 S.W.2d 657 (Tenn.1976). It was error for the State to show Appellant’s refusal to make a statement and saying he wanted his lawyer.

The assignment of the Appellant going to the issue of whether the killing was accidental is based upon the refusal of the trial judge to allow him to argue this theory to the jury. One police officer testified that when he arrived at the scene the Appellant said there had been an accident and the woman was shot. In his testimony the Appellant took the position that he did not intend to kill the woman but that he pointed the gun at her to prevent her from attacking him. He asserted that he believed the woman was armed and would kill or injure him if he did not prevent the attack.

The Appellant, in his defense, was relying upon the defense of habitation, self-defense and accidental killing. The trial judge instructed Appellant’s counsel, prior to completion of the case, that he could not rely upon these three (3) defenses because they were inconsistent. He stated: “you cannot ride three horses.”

The trial judge allowed the defenses of self-defense and defense of habitation and instructed the attorney not to argue the theory of accidental death to the jury. We are of the opinion this was error which requires a retrial of this case.

We are unable to find any case that prohibits reliance on both self-defense and accidental killing. On the other hand, the case of Myers v. State, 185 Tenn. 264, 206 S.W.2d 30 (Tenn.1947), held that although self-defense was not ordinarily available in a case defended on the theory of accidental homicide, the facts of the case made both applicable. We are of the view that in this case the evidence is similar to Myers and the Appellant can rely upon the defense of accidental killing as well as the theories of self-defense and defense of habitation.

The trial judge erroneously prohibited Appellant’s attorney from arguing accidental killing to the jury. The Appellant testified the killing was unintentional. The jury, if counsel had been allowed to insist on this theory, might well have concluded the death was one of involuntary manslaughter rather than murder.

The State insists the action of the trial judge in this matter and in the matter of the evidence of the assertion of the right not to make a statement and to confer with an attorney was harmless error if error at all. We do not subscribe to this view. The State’s case was based upon the circumstances surrounding the death and what inference might be drawn from the use of a deadly weapon. The proof of guilt was circumstantial and not direct. The evidence of guilt, although adequate to support a verdict of second (2nd) degree murder absent these errors, was not overwhelming. We, therefore, conclude the errors were substantial and cannot say they did not affect the verdict reached by the jury.

ROBERT S. BRANDT, Special Judge, concurs.

GALBREATH, former J., did not participate in this decision.


author: RUSSELL, Presiding Judge.

text:
    William Joseph WALDEN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 3, 1978.
    Certiorari Denied by Supreme Court Dec. 28, 1978.

      Charles L. Hendrix, Asst. Public Defender, Nashville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Nashville, Roger T. May and Pat Apel, Asst. Dist. Attys. Gen., Nashville, for appellee.
   OPINION

RUSSELL, Presiding Judge.

The appellant, William Joseph Walden, was convicted by a jury of robbery and his punishment was fixed at not less than five years nor more than ten years in the State Penitentiary. He now appeals the conviction, citing as his sole assignment of error the refusal of the trial judge to charge the jury as to the lesser included offense of larceny from the person.

William A. Caldwell, the robbery victim, testified that he was drinking at a private club in Nashville when he was approached by the appellant. Together they began to “match coins” for drinks, and after about an hour and a half the stakes had increased to five dollars a “match”. After one such “match”, Caldwell accused the appellant of cheating and refused to pay him the five dollars. The two then parted, with the appellant being asked to leave by the management a short time later. Subsequently, Caldwell also left, only to encounter the appellant outside. In order to avoid further argument, Caldwell agreed to pay off the five dollar bet, but did not have the correct change. The two proceeded across the street where Caldwell attempted to change a one hundred dollar bill. Only five twenty dollars bills could be obtained as change and as the two men recrossed the street, the appellant seized one of the twenty dollar bills from Caldwell’s hand, adding “Well, I’ll just take that”, and proceeded to walk away. (This was not the taking that he was prosecuted for, but it was the subsequent taking hereinafter described.) Caldwell quickly followed and succeeded in stopping the appellant. According to Caldwell, the appellant then grabbed him by the neck, stated “I’m going to take your whole billfold”, knocked out two of the victim’s teeth, took his wallet, and fled. Caldwell again gave chase, but abandoned his pursuit when the appellant entered a vacant lot. After the police were contacted, the appellant was arrested and the wallet and money were found upon his person. At trial, the appellant testified that he and Caldwell had scuffled outside the club; that he was subsequently sent by Caldwell to get change; that he must have picked up Caldwell’s wallet by mistake; and that he was stopped by a policeman before he had time to get the change. A witness for the State testified that he saw two men fighting on the street at about the time the incident occurred, and that one man fled pursued by the other.

It is well-settled law in Tennessee that the trial judge is not required to instruct on lesser included offenses where there is no evidence to support a lesser included offense. Whitwell v. State, 520 S.W.2d 338, 343 (Tenn.1975). In Whitwell our Supreme Court went so far as to disapprove of the practice of charging petit larceny (in the context of its being an included offense) “where there is no evidence to support [it]”. See Johnson v. State, 531 S.W.2d 558, 559 (Tenn.1975); Strader v. State, 210 Tenn. 669, 679, 362 S.W.2d 224, 228 (1962); Reynolds v. State, 210 Tenn. 310, 313-314, 358 S.W.2d 320, 321 (1962); Carmon v. State, 512 S.W.2d 595, 597-598 (Tenn.Cr.App.1974); Lee v. State, 498 S.W.2d 909, 913 (Tenn.Cr.App.1973); Murphy v. State, 4 Tenn.Cr.App. 610, 612, 475 S.W.2d 182, 183 (1971); Black v. State, 1 Tenn.Cr.App. 373, 379, 443 S.W.2d 523, 526 (1969). In Baker v. State, the Tennessee Supreme Court held that “where there is no evidence to support a lesser included offense and that, therefore, the accused can be guilty only of the greater offense or no offense at all, it is not error to refuse to instruct on the lesser included offenses”. Baker v. State, 203 Tenn. 574, 577, 315 S.W.2d 5, 6 (1957). The learned trial judge in this case charged the jury on robbery and assault and battery. There was evidence in the record raising the issues involved in both of those offenses. However, there was no evidence presented which could justify a charge of larceny from the person. Even if the testimony of the appellant is wholly believed, larceny from the person is not made out because the appellant claims he had Caldwell’s property by consent. If such were the case, there would have been no unlawful taking.

We find, therefore, that the trial court in this case properly refused to instruct the jury concerning larceny from the person as a lesser included offense, and that the appellant was in no way prejudiced by the judge’s charge to the jury. Accordingly, the assignment of error is overruled and the judgment below is affirmed.

DAUGHTREY and TATUM, JJ., concur.


text:
    Sam RAY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 2, 1978.
    Certiorari Denied by Supreme Court Dec. 18, 1978.

      Leroy Phillips, Jr., Chattanooga, for appellant.
    Brooks McLemore, Jr., Atty. Gen.; Robert L. DeLaney, Asst. Atty. Gen., Nashville, for appellee.
   OPINION

O’BRIEN, Judge.

Defendant appeals from a trial court judgment revoking a suspended sentence.

On March 19, 1975 defendant was indicted on two separate charges of felonious assault. On September 17, 1975 defendant submitted guilty pleas on separate charges of simple assault. The minute entry for that day shows the judgment of the court to be that defendant was to serve a term of eleven months and twenty-nine days. The sentences were suspended conditioned upon defendant’s good behavior for a period of one year, as recommended by the State. On December 10, 1975 defendant was indicted on three separate counts for bribery of a police officer. On January 26,1976 the State filed a petition to revoke defendant’s suspended sentences on the grounds that he had been indicted for bribery; had failed to abide by the terms of his suspended sentence; was carrying on a life of crime; had become a public nuisance and menace; and had been guilty of conduct which demonstrated his unwillingness to conduct himself in a lawful manner. The revocation hearing did not take place until July 29, 1977, after defendant was acquitted on the bribery charges. The court took the matter under advisement until September 19,1977. On that date the petition was sustained and defendant ordered to serve the sentence previously imposed. Appeal was granted and ninety days allowed in which to file the Bill of Exceptions. On February 16, 1978, more than a month after this record had been forwarded to this court, the trial judge entered an order attempting to amend the minute entry of September 17, 1975. This order indicated that the original judgment entered was intended to fix the penalty for the separate offenses of assault and battery to run consecutively and directed the amendment of the minute entry to accomplish that purpose.

Defendant makes three assignments of error.

(1) That the trial court erred in revoking his suspended sentence after having found or having cause to be stipulated the defendant was innocent of the charges forming the basis of the revocation petition.
(2) That it was error to revoke the suspended sentences because they were granted as part of a plea bargain agreement upon the express recommendation of the State at a time when the State was fully aware of the alleged acts of defendant which formed the basis of the petition to revoke.
(3) That defendant was deprived of his right to due process and confrontation because of denial of a full, fair and impartial evidentiary hearing, and improper restriction of cross-examination of State’s witnesses.

We overrule defendant’s first assignment of error. The revocation petition not only recited the three bribery indictments outstanding against defendant but stated the other grounds set out earlier in this opinion. A trial judge at a revocation hearing is not bound by an acquittal of a criminal offense which occurs, as in this case, after a suspended sentence is granted, when it appears that a defendant is guilty of conduct inconsistent with good citizenship. Galyon v. State, 189 Tenn. 505, 226 S.W.2d 270. The evidence was clear that defendant had consorted with gamblers, and had participated in the bribery of a police officer after being placed on probation. The evidence was sufficient to warrant the revocation of the suspended sentence.

We also overrule defendant’s complaint that he was denied due process because the State was aware, at the time it recommended the suspended sentence, of the' conduct which subsequently formed the basis of the petition to revoke.

The record discloses that sometime about the middle of June, 1975, after defendant’s indictment, but prior to submission of his guilty pleas, he approached a Chattanooga police officer on behalf of some other individuals involved in a gambling operation to accept sums of money to provide protection from police interference with their games. Communications between the defendant and the police officer continued through June, July, August and into September. The last contact between them took place on the day after defendant had submitted his guilty pleas and his sentences were suspended. On this latter date, September 18, 1975, defendant passed on a one hundred dollar bill to the officer from his gambler associates. The Assistant District Attorney who represented the State at the guilty plea hearings, and who recommended the suspended sentence to the court, had become engaged in private law practice at the time of the revocation hearing. He testified that on September 17, 1975 when the guilty plea was entered and the recommendation for suspended sentence was made that he was actively participating in an investigation involving the gambling operation and the activities between defendant and the police officer. It is defendant’s position that the State, being cognizant of his activities at the time the recommendation for a suspended sentence was made should not be permitted to renege on the agreement to suspend his sentence by subsequently filing the petition to revoke. Although the conduct of the State’s attorney may have been motivated by the desire and intention to ferret out criminal activity in the county, his failure to apprise the trial judge that the defendant was engaged, at the time of his recommendation for suspended sentence, in activities which were the object of subsequent indictment, is less than commendable, and might well have resulted in denial of the largess of the court. However, there is no evidence whatsoever in this record that the defendant relied in any way on any agreement to engage in his illicit dealings in return for his guilty plea. He acted as a conduit between the gamblers and the police officer after he had been granted a suspended sentence. The plea agreement between the defendant and the State did not conteto-plate this subsequent conduct by him and the Assistant District Attorney’s knowledge of it cannot be asserted as a bar to the revocation of his suspended sentence.

Defendant apparently bases his third assignment on the manner in which the trial judge proscribed his cross-examination of Police Officer John Haden. He attempted to show that he had been entrapped by the officer luring him into making the payments for which he was subsequently indicted on bribery charges. The trial judge stated that even if these facts were admitted, or stipulated, and the officer was shown to be crooked and corrupt, it still would not exonerate defendant from his own illegal conduct or activities demonstrative of poor citizenship. Our review of this record indicates defense counsel was endeavoring to show that defendant was the victim of extortion by the police officer and we are sure His Honor did not intend to imply that if such were true that defendant would, without more, be guilty of illegal or improper conduct. But, the evidence in the record is that defendant initiated the contact with the police officer who then requested cooperation from his superiors to secure him from personal harm or exposure to the possible accusation of accepting a bribe. It is wholly inconceivable that if the officer was in fact involved in the business of extortion, or endeavoring to entrap the defendant, he would enlist the assistance of other officers in the surveillance of his communications with the defendant. Furthermore, we note that defendant was afforded the opportunity to offer any other proof he might wish to in order to establish a defense to the charges against him. We overrule the assignment.

Defendant makes implication, which is not supported by the record, that he was not afforded the procedural requirements at his revocation hearing which are mandated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). This court considered a similar complaint in Practy v. State, 525 S.W.2d 677, (Tenn.Cr.App.1974), and held that the procedures required by our statutes, T.C.A. Sec. 40-2901, et seq., when followed, substantially and adequately comport with the procedural requirements delineated in Morrissey and Gagnon.

Without retracting from the view that defendant has not been deprived of any right to due process, or his constitutional right to confrontation, our perusal of this record brings to light several errors on the part of the trial judge in the course of the probation proceedings, including failure to comply with T.C.A. Sec.’s 40-2902 and 2904.

T.C.A. Sec. 40-2902 provides, in pertinent part,

“Any trial judge desiring to suspend a sentence and place the defendant or defendants on probation as provided for in Sec. 40-2901, shall first pronounce judgment against the defendant or defendants and then shall suspend the execution thereof by placing the defendant upon probation, subject to such conditions of probation as the trial judge shall deem fit and proper and shall direct that such defendant or defendants be under the supervision of the Board of Pardons and Paroles created under Sec. 40-3601, et seq.”
T.C.A. Sec. 40-2904 specifically provides: “The power of suspension and probation is within the sole discretion of the trial judge, however, when a probation and paroles officer is available to the court, no defendant shall be placed on probation until a written report of investigation by a probation and paroles officer shall have been presented to and considered by the court, provided the probation and paroles officer to whom such matters have been referred shall file his report within ten (10) days after such reference. Said report shall inquire into the circumstances of the offense, criminal record, social history, and present condition of the defendant. . . . ”

On September 17, 1975 the trial judge entered judgment in this case as follows:

“Upon defendant’s pleas and upon proof heard, it is adjudged by the Court that the defendant is guilty of Assault and it is the judgment of the Court that the defendant serve a term of 11 months and 29 days at the Hamilton County Penal Farm and pay all costs. Execution will issue against the defendant for the costs. The above sentences are further ordered suspended upon payment of the costs and further conditioned upon the defendant’s good behavior for a period of 1 year, as recommended by the State.”

On January 26, 1976 the petition to revoke the suspended sentence was filed. This petition contained the first mention in the record that defendant was to serve consecutive sentences of eleven months and twenty-nine days.

On September 19, 1977, an order sustaining the petition to revoke the suspended sentence and granting appeal was entered. This order recited in pertinent part:

“The defendant now being present in Court with his attorney, . . . , and hearing on said petition was held this date, and the Court, after hearing said petition and proof hereon, and giving consideration thereto, sustained said petition, and ordered the defendant to serve the sentence heretofore imposed in this case, . . ."

On February 16, 1978 nearly a month after the transcript of record was forwarded to this court, an order was entered in the trial court attempting to amend the original judgment of September 17, 1975. This order reads as follows:

“Heretofore, on September 17, 1975, the above named defendant entered a plea of guilty to the offense of Assault and Battery and was sentenced to a term of 11 months and 29 days in the Hamilton County Penal Farm and the sentence was ordered to run consecutively to the sentence is Case Number 130082. The sentence was suspended on defendant’s good behavior for a period of one year.
It further appearing that the order running the sentence consecutively was inadvertently left out of the Court’s minute entry, and it appearing that the defendant’s suspended sentence has now been revoked and the defendant has appealed the Court’s decision to the Court of Criminal Appeals, it is, therefore,
ORDERED that the minute entry of September 17, 1975 be amended as follows: ‘The sentence is (sic) this case is hereby ordered to run consecutively to the sentence is (sic) Case Number 130082’.”

This abortive attempt on the part of the trial judge to amend a judgment entered nearly two and one-half years before is a nullity and completely void. When a conviction reflects the trial judge’s approval of the jury verdict and imposition of sentence upon the defendant it is valid and complete. State v. McClain, 186 Tenn. 401, 210 S.W.2d 680. When judgment is pronounced by the trial court after return of a verdict it is the duty of the clerk to enter the judgment on the court’s minutes. T.C.A. Sec. 18-402(3). The judgment becomes final thirty days after its entry in the absence of some procedural action to delay its efficacy. Leek v. State, 216 Tenn. 337, 392 S.W.2d 456; Hethcoat v. State, 213 Tenn. 563, 376 S.W.2d 478; Shuey v. Frierson, 193 Tenn. 318, 246 S.W.2d 28. The judgment of the trial court entered on September 17, 1975 became final thirty days after its entry. That judgment clearly states that defendant was to serve a term of eleven months and twenty-nine days. There is no suggestion that the sentences should be consecutive, or even that two separate sentences were adjudged. Where separate sentences are imposed upon a defendant those sentences are construed to be concurrent in the absence of a specific ad-judgment by the trial court that they were to be cumulative. Howe v. State ex rel. Pyne, 170 Tenn. 571, 98 S.W.2d 93; Nash v. State, 524 S.W.2d 494, (Tenn.Cr.App.1975); State v. Bouchard, 554 S.W.2d 654, (Tenn.Cr.App.1977), cert. denied, 563 S.W.2d 561 (Tenn.Cr.App.1978), petition to rehear denied 2/27/78.

The judgment of the trial court of September 19, 1977, revoking defendant’s suspended sentence and directing defendant to serve the sentence previously imposed is sustained. We hold that this order specifically applies to the judgment of the court of September 17, 1975 fixing defendant’s sentence at a term of eleven months and twenty-nine days in the Hamilton County Penal Farm. The order of February 16, 1978 is void and without any force or effect.

Affirmed as indicated.

DAUGHTREY and BYERS, JJ., concur.


author: McGEE, Justice.

text:
    Carol MOUGHON, Petitioner, v. Daniel WOLF et al., Respondents.
    No. B-7569.
    Supreme Court of Texas.
    Nov. 15, 1978.
    Rehearing Denied Dec. 29, 1978.
    Sewell, Junell & Riggs, Gordon A. Holloway and Claude R. Treece, Houston, for petitioner.
    Russell T. Van Keuren, Houston, for respondents.
   McGEE, Justice.

This is a personal injury suit resulting from an automobile accident. The principal issues involved on this appeal are: (1) whether the evidence establishes as a matter of law a violation of a statutory duty constituting negligence per se; (2) whether there is any evidence of a legally acceptable excuse for the violation of such a statute.

During the early morning hours of November 29, 1974, Carol Moughon’s automobile, which was traveling in a westerly direction on a Houston city street, veered across the roadway center stripe into oncoming traffic and collided with the Wolfs’ automobile. The Wolfs’ car was heavily damaged and both Mary Wolf and Shannon Wolf suffered personal injuries. This suit was instituted against Carol Moughon, alleging common law negligence and negligence per se under section 52 of article 6701d. A take-nothing judgment was rendered against plaintiff Wolf after the jury found that the defendant (1) had not been negligent in failing to keep her ear on the right side of the road and (2) had not failed to make such an application of the brakes as a person using ordinary care would have made. The court of civil appeals reversed and rendered the judgment, essentially holding that Wolf had conclusively established negligence per se. 562 S.W.2d 936. We affirm the judgment of the court of civil appeals.

Ms. Moughon generally contends that the court of civil appeals erred in holding her liable on a theory of negligence per se. She specifically argues that the present case was submitted to the jury on a common law negligence issue, and therefore, any theory of recovery predicated upon negligence per se was waived by Wolf’s failure to request an appropriate issue. Special issue number one inquired:

Do you find from a preponderance of the evidence that the failure of Carol Moughon to keep her vehicle entirely within the right half of the roadway was negligence?

We agree that this was a common law negligence submission because the issue inquired whether the violative conduct was negligence. Whether plaintiff Wolf waived his negligence per se count, however, can only be determined after an analysis of the facts and applicable law in light of Rule 279 of the Texas Rules of Civil Procedure. That rule provides in pertinent part: “Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived; . . . ” Tex. R.Civ.Proc. 279.

Negligence per se is a tort concept whereby the civil courts adopt a legislatively imposed standard of conduct as defining the conduct of a reasonably prudent person. The unexcused violation of a statute constitutes negligence as a matter of law if such statute was designed to prevent injury to the class of persons to which the injured party belongs. Missouri P. R. R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977); Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587 (1947); Comment, Negligence Per Se and Excuse for a Statutory Violation in Texas, 5 St. Mary’s L.J. 552 (1973). Section 52 of article 6701d has been recognized as just such a safety statute since it seeks to prevent property damage and personal injury by prohibiting driving on the left-hand side of the road. See, e. g., Phoenix Refining Co. v. Powell, 251 S.W.2d 892, 896 (Tex.Civ.App.—San Antonio 1952, writ ref’d n. r. e.).

Generally, the litigant alleging negligence per se as a ground of recovery must assume ,the burden of proving a statutory violation. Missouri P. R. R. Co. v. American Statesman, 552 S.W.2d 99, 102 (Tex.1977); L. M. B. Corporation v. Gurecky, 501 S.W.2d 300 (Tex.1973). The typical submission of such a case includes an issue inquiring whether the party charged is actually guilty of legislatively proscribed conduct along with an issue inquiring whether the violative conduct was the proximate cause of the accident. The violator may excuse his conduct, but he must produce some evidence of a legally acceptable excuse. If some evidence of a legally acceptable excuse such as emergency, incapacity or impossibility is present in the case, the litigant charging statutory violation must assume a further burden. That burden entails requesting an issue which inquires whether the litigant charged is guilty of negligence as measured by the common law or reasonable person standard. The evidence adduced must be more than a mere scintilla and the excuse must be legally acceptable; otherwise, this additional burden does not arise and the common law negligence theory should not be submitted. Sparkman v. State, 519 S.W.2d 852, 857 (Tex.1975); L. M. B. Corp. v. Gurecky, 501 S.W.2d 300, 303 (Tex.1973); Antee v. Sims, 494 S.W.2d 215, 217 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n. r. e.).

Accordingly, we must determine whether the statutory violation was conclusively established in the present case and, concomitantly, whether there was any evidence of a legally acceptable excuse to the statutory violation. If it is found that Wolf has established a statutory violation unrebutted by some evidence of a legally acceptable excuse, two conclusions are inescapable. First, the negligence per se ground, being conclusively established, cannot be waived by failure to request or obtain an appropriate issue. Tex.R.Civ.Proc. 279. Second, the common law negligence issue was inappropriate and the jury finding in regard thereto must be disregarded. Impson v. Structural Metals, Inc., 487 S.W.2d 694, 697 (Tex.1972); Antee v. Sims, 494 S.W.2d at 217.

The events leading up to the accident are fairly clear. On Wednesday, November 27, 1974, Ms. Moughon placed her car in a repair shop to have the brakes relined. Later that day when she and her father retrieved the vehicle, the mechanic on duty informed her that two of the automobile’s brake drums contained “hard spots” and should be replaced. He also told her that the shop would be closed on Thursday, Thanksgiving Day, but that she could return the car on Friday. Ms. Moughon testified that each time the brakes were applied while driving her car late Wednesday and Thursday the car pulled “extremely to the right.” Her father further testified that the car only pulled to the right when the brakes were applied; otherwise, it maintained a steady course.

Early Friday morning, November 29, 1974, Ms. Moughon attempted to return the car to the repair shop. While negotiating a curve on a wide two-way street along the way, her car jumped the right-hand curb. Ms. Moughon tried to regain control, but in so doing the car jumped the curb a second time and then veered across the center of the street into oncoming traffic. Mrs. Wolf testified that when she saw the Moughon vehicle veer into her lane of traffic, she pulled her car to the right curb and was attempting to stop when the collision occurred.

Ms. Moughon does not deny that her car traveled into the left traffic lane in apparent violation of section 52; however, she does contend that such violation was excused because her automobile was out of control due to defective brakes. This argument is without merit. The record in the present case is devoid of any evidence that the defective brakes caused the loss of control and the subsequent accident. Indeed, Ms. Moughon testified:

Q And you are not — according to your deposition, you can’t tell us any reason at all why the car jumped the curb?
A No, I can’t. It’s very strange, but I just find myself up on the curb before I knew, and I was in an emergency situation.
Q Now, when you got up on the curb, had you applied your brakes before that time and swerved and lost control?
A No, not that I know of. No.
Q You can’t help the jury in any way, to tell them in any way at all why the car went upon the curb?
A No, not really. I could say something, but it — I mean I would only be guessing.

At best, this is only evidence of an unexplained loss of control. Ms. Moughon’s burden was to present some evidence not only of her loss of control but that the loss of control was due to a legally acceptable reason. In the absence of some evidence of legally acceptable excuse, Mr. Wolf had no further burden to request an issue and prove the case by a common law negligence standard. Impson v. Structural Metals, Inc., 487 S.W.2d at 697; L. M. B. Corp. v. Gurecky, 501 S.W.2d at 303.

We are also of the opinion that the facts that conclusively establish Ms. Moughon’s unexcused violation of section 52 also conclusively establish proximate cause. It is well settled in this state that proximate cause exists as a matter of law if the circumstances are such that reasonable minds could not differ. See, e. g., Missouri P. R. R. Co. v. American Statesman, 552 S.W.2d at 105. It was undisputed that the position of Ms. Moughon’s automobile on the wrong side of the street was the cause in fact of the collision and subsequent injuries. Furthermore, except for legally excusable situations as defined by Impson, a guide to the foreseeability element is supplied by section 52. Cf. Missouri P. R. R. Co. v. American Statesman, 552 S.W.2d at 105; Southwestern Bell Telephone Co. v. Hertz Equipment Rental Co., 533 S.W.2d 853, 857 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.). A fair reading of that statute reveals that the Legislature intended to prevent automobile collisions by prohibiting driving in the left lane or lanes of a two-way street. Consequently, there can be no doubt that Ms. Moughon’s unexcused travel in the wrong lane of a two-way street placed all persons similarly situated to the Wolfs in a foreseeable zone of danger. Cf. Parrott v. Garcia, 436 S.W.2d 897, 900-01 (Tex.1969).

Inasmuch as Ms. Moughon did not deny that she crossed the center stripe and since she failed to adduce some evidence of legally acceptable excuse, we hold that a statutory violation and proximate cause were established as a matter of law. Being conclusively established, this independent ground of recovery was not abandoned for failure to request an appropriate negligence per se submission. Likewise, the common law negligence submission was inappropriate and the jury’s finding in regard thereto must be disregarded.

The judgment of the court of civil appeals is affirmed.

      . Tex.Rev.Civ.Stat.Ann. art. 6701d, § 52 provides in pertinent part: “Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway . . . .”

      . Generally, a negligence per se submission only inquires whether statutory duty was violated and whether such conduct was the proximate cause of the accident. See Impson v. Structural Metals, Inc., 487 S.W.2d 694, 697 (Tex.1972); Antee v. Sims, 494 S.W.2d 215, 217 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ refd n. r. e.); State Bar of Texas, Texas Pattern Jury Charges § 5.11, at 104 (1969).

      . For example, the Committee on Pattern Jury Charges of the State Bar of Texas suggests that the following submission is appropriate:
      ISSUE NO. 1
      Do you find from a preponderance of the evidence that on the occasion in question [name of litigant charged with statutory violation] failed to keep [his or her] vehicle completely within the right half of the roadway?
      ANSWER “We do” or “We do not.”
      Answer:_
      If you have answered Issue No. 1 “We do” then answer Issue No. 2; otherwise do not answer Issue No. 2.
      ISSUE NO. 2
      Do you find from a preponderance of the evidence that such failure was a proximate cause of the occurrence in question?
      ANSWER “We do” or “We do not.”
      Answer: _

        State Bar of Texas, Texas Pattern Jury Charges § 5.11, at 104 (1969); accord, Impson v. Structural Metals, Inc., 487 S.W.2d 694, 697 (Tex.1972); Antee v. Sims, 494 S.W.2d 215, 217 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref'd n. r. e.); see Calvert, Special Issues Under Article 6701d, Section 86(d) of the Texas Civil Statutes, 34 Tex.L.Rev. 971, 977 (1956).

      . For purposes of illustration, we direct attention to the State Bar Committee’s work on Pattern Jury charges. The Committee has suggested that the following additional issue be submitted, conditioned on an affirmative finding to Issue No. 1, if the trial court is satisfied that some evidence of legally acceptable excuse is present in the case:
      ISSUE NO. 3
      Do you find from a preponderance of the evidence that such failure was negligence?
      ANSWER “We do” or “We do not.”
      Answer:_
      State Bar of Texas, Texas Pattern Jury Charges § 5.11 (1969 & Supp.1973).
      In conjunction with this common law negligence submission and upon proper request, certain explanatory instructions may be submitted that inform the jury of such matters as the statutory standard of conduct and any legally acceptable excuses that are supported by some evidence. Southern Pacifíc v. Castro, 493 S.W.2d at 498. See State Bar of Texas, Texas Pattern Jury Charges § 5.11 (1969 & Supp. 1973) for an example of such an instruction.