author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. George ARNOLD, Defendant-Appellant.
    No. 37020.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 9, 1976.

      Marilyn Wallach and James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert L. Presson, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James F. Booth, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

Defendant-appellant, George Arnold, was charged with burglary in the second degree, tried by a jury, found guilty and sentenced by the court under the Second Offender Act to nine years in the department of corrections. He appeals and contends that the trial court erred in overruling his motion for judgment of acquittal because the evidence was insufficient to support a conviction of burglary in the second degree. We affirm.

On the evening of August 6, 1974, employees of Laclede Gas Company locked and secured an “assembly room” located at 4015 Duncan Avenue in the City of St. Louis. Mr. Joseph W. Horenkamp, whose duties included securing the building, locked the door and checked the windows and left about 4:30 in the afternoon. He was aided by Mr. Herbert J. Fernandez, the foreman of the construction service crew. Inside the “assembly room” there were located a “wire cage” and a “metal cabinet” which contained tools and other items. The men left for the day about 4:30 p.m.

When Mr. Horenkamp returned the next morning at about 6:30 a.m. one of the windows of the assembly room was broken and unlocked and another was open. The windows have a wire mesh. In one of the windows there was a hole approximately six inches in diameter. The contents of the cabinet and cage were taken out and were found inside the building but by a door. So far as the record shows, no items were actually taken out of the building.

The police were called, and the evidence technician unit dusted for fingerprints. Fingerprints were found on a piece of the glass which still clung to the window, and, upon analysis, a thumbprint and the fingerprints of two fingers of the defendant were found on the interior and exterior of the window glass. The thumbprint was found on the exterior portion of the window, and the two fingerprints were found on the interior portion of the glass. The prints were identified as the defendant’s by Officer Gerald Hart, the supervisor of the Identification Division Latent Unit.

The appellant did not testify. Both at the conclusion of the state’s case and at the close of the entire case, defendant moved for judgment of acquittal. The motions were overruled; the jury was instructed and found the defendant guilty of burglary. Motion for new trial was timely filed, and after allocution was granted, the court imposed sentence.

On this appeal, appellant contends that the evidence was insufficient to support a conviction, because there was no substantial evidence to find that the defendant broke into a building with intent to steal valuable things which were kept therein.

In ruling on this matter, we are guided by certain basic tenets on the issue of whether a submissible case has been made in a criminal proceeding. We must consider the evidence and the inferences reasonably to be drawn therefrom in the light most favorable to the state. Such evidence may be circumstantial. State v. Johnson, 510 S.W.2d 485, 487 (Mo.App.1974). Where evidence connecting the defendant with an offense is circumstantial, the circumstances relied upon must be consistent with each other, consistent with the hypothesis of guilt, inconsistent with any reasonable theory of innocence and point satisfactorily to guilt so as to exclude every other reasonable hypothesis of innocence. State v. Cox, 508 S.W.2d 716, 721 (Mo.App.1974); State v. Cain, 507 S.W.2d 437, 441 (Mo.App.1974); State v. Deutschmann, 392 S.W.2d 279, 282 (Mo.1965).

Here, the defendant’s fingerprints associated him with the breaking of the window and the movement of the items in the assembly room. This evidence has been consistently held sufficient to submit the case to the jury. In State v. Thomas, 452 S.W.2d 160 (Mo.1970), a case upholding a conviction of burglary based on fingerprint evidence, the court stated:

“[T]his Court has made it plain that the mere existence of other possible hypothesis is not enough to remove the case from the jury. If the judge were to direct acquittal whenever in his opinion the evidence failed to exclude every hypothesis than that of guilt, he would preempt the functions of the jury. Under such a rule the judge would have to be convinced of guilt beyond peradventure of doubt before the jury would be permitted to consider the case. That is not the place of the jury in criminal procedure. They are the judges of the facts and of guilt or innocence, not merely a device for checking upon the conclusions of the judge.” State v. Thomas, supra, 452 S.W.2d at 162.

We believe that the circumstances here created a jury question as to whether the defendant broke into the assembly room with intent to steal valuables located therein.

The authorities are clear that consummation of an intent to steal in the offense of burglary is not necessary to complete the crime. State v. Powell, 357 S.W.2d 914, 917 (Mo.1962); State v. Pigques, 310 S.W.2d 942, 945 (Mo.1958). Evidence of a forcible breaking and entering by defendant into a building in which goods are kept under circumstances which would warrant an inference of an intent to steal is all that the statute requires. State v. Parks, 336 S.W.2d 369, 370 (Mo.1960). Such intent may and generally must be proved by circumstantial evidence, for as a rule it is not susceptible of direct proof. State v. Shipman, 354 Mo. 265, 189 S.W.2d 273, 275 (1945); State v. Deutschmann, supra, 392 S.W.2d at 283; State v. Smith, 357 S.W.2d 120, 123 (Mo.1962) — nothing taken, but things were “in confusion”; State v. Cuffie, 403 S.W.2d 633, 634 (Mo.1966); State v. McBride, 366 S.W.2d 374, 377 (Mo. 1963). In order to establish the requisite intent in the offense of second degree burglary, it is not necessary that the act of stealing be completed after the breaking and entry. State v. Smith, supra, 357 S.W.2d at 123.

Numerous decisions have upheld convictions based on fingerprint evidence in situations similar to the situation here. State v. Thomas, supra; State v. Schleicher, 442 S.W.2d 19, 21 (Mo.1969); State v. Allen, 420 S.W.2d 330, 333 (Mo.1967); State v. Simmons, 528 S.W.2d 8, 10 (Mo.App.1975); State v. Mussman, 526 S.W.2d 62, 64 (Mo.App.1975); State v. Gray, 504 S.W.2d 825, 826 (Mo.App.1974); State v. Lane, 497 S.W.2d 207, 209 (Mo.App.1973); Annot., 28 A.L.R.2d 1115 (1953). The fingerprints of the defendant were found on both the interior and exterior of the window glass. There was evidence that fingerprints normally last only about thirty-six hours.

We therefore hold that there was substantial evidence to submit the case to the jury and to support the finding of the jury.

We have read the transcript, the briefs and authorities relied upon by the parties and are convinced that the judgment of conviction should be affirmed.

The judgment is affirmed.

. KELLY and GUNN, JJ., concur.

      . At sentencing, defendant, who had had a nervous breakdown and had been hospitalized, did not remember anything about a burglary. No motion for a psychiatric examination was filed, because defense counsel felt there were no grounds to file a psychiatric motion. The matter of any mental disease or defect was not before the sentencing court. If, however, there is an issue of such disease or defect, there are appropriate methods to determine the validity of the verdict and sentence.


source: Caselaw Access Project

author: SMITH, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Freddie SIMON, Defendant-Appellant.
    No. 36679.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 9, 1976.
    James C. Jones, III, G. Jeffrey Lockett, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Chief Judge.

Defendant appeals from his conviction and sentence of five years imprisonment upon a jury verdict finding him guilty of manslaughter.

Defendant’s major contention is that the court erred in failing to direct a verdict of acquittal because the evidence was not sufficient to establish defendant’s guilt. We therefore must review the evidence in the light most favorable to the verdict. As stated in State v. Thomas, 452 S.W.2d 160, l.c. 162 (Mo.1970):

“In a case involving circumstantial evidence the circumstances need not be absolutely conclusive of guilty, and they need not demonstrate impossibility of innocence. . . . Moreover, this Court has made it plain that the mere existence of other possible hypothesis is not enough to remove the case from the jury. If the judge were to direct acquittal whenever in his opinion the evidence failed to exclude every hypothesis than that of guilt, he would preempt the functions of the jury. Under such a rule the judge would have to be convinced of guilt beyond peradventure of doubt before the jury would be permitted to consider the case. That is not the place of the jury in criminal procedure. They are the judges of the facts and of guilt or innocence, not merely a device for cheeking upon the conclusions of the judge.”

The victim, Lucille Jones, sixty-four years old, lived alone in a third floor apartment. Defendant was seen daily around the apartment for several months prior to November 14, 1973, had visited on occasions with the victim, and on one occasion had been seen to unlock the door to the victim’s apartment and enter. On November 14, 1973, about 6 p.m. a Mrs. Clara Moore went to the Jones’ apartment to borrow a sewing machine. Prior to going to the apartment, Mrs. Moore called and defendant answered the phone. Ms. Jones eventually came to the phone. Within five minutes, Mrs. Moore arrived at the Jones’ apartment. Defendant answered the door and Mrs. Moore entered the apartment. Ms. Jones was lying on the floor next to the couch. Mrs. Moore told her to get up, which Ms. Jones tried to do but couldn’t. Mrs. Moore than lifted her onto the couch. The victim’s robe was open and she was otherwise unclothed. Mrs. Moore got a washcloth from the bathroom and bathed the victim’s face. She noticed that Ms. Jones’ lips were bruised but saw no other marks. She also noted that she did not smell alcohol on the victim’s breath, although she was within a very short distance of her mouth for some period of time. Ms. Jones asked Mrs. Moore to stay with her, but Mrs. Moore was unable to do so. Defendant was sitting in a chair throughout Mrs. Moore’s visit. He was drinking, talking in a fashion where Mrs. Moore could not understand him, and smelled of alcohol.

After leaving the Jones’ apartment, Mrs. Moore went back to the first floor and asked another resident of the apartment house to “go up there to Lucille’s and stop Simon . . . He’s up there beating Lucille.” This resident, Tom Hathorne, went to the Jones’ apartment and knocked. Defendant answered the door and Hathorne saw Ms. Jones lying on the couch, naked from the waist up. Defendant said, “Are you coming to get me? Just let the doorknob hit you in the back.” Hathorne left but saw defendant again about 8 p. m. going up the steps. Another witness, whose testimony was considerably confused as to times, testified that, when defendant left the Jones’ apartment on the day before the body was discovered, she heard defendant saying “dirty names.”

Around ten o’clock p. m. on the fourteenth Mrs. Moore attempted to call the Jones’ apartment but received a busy signal on three occasions. She tried again about 5 a. m. on the fifteenth and when she received another busy, she knocked on the Jones’ door and received no response. She heard the radio playing at that time as she had the night before. She heard a car horn honk and went outside to see if it was Lucille’s ride to work. Instead it was a man looking for “Mr. Simon.” The man reported that he had gone to Simon’s house only to find a padlock on his door. Mrs. Moore then called the police.

When the police arrived, both the front and rear doors of the Jones’ apartment were locked. After forcing entry, the police found the body of Ms. Jones, lying on the floor near the bed, completely nude. The victim’s head had cuts; a “considerable patch” of hair had been pulled from her head; she was lying with a pool of blood under her head. The officer was of the opinion a struggle hhd taken place in the victim’s apartment. The victim’s telephone was on the floor, off the hook.

Medical evidence established the cause of death was due to hemorrhage caused by bilateral rib fractures. Ribs two through eight on both sides were fractured as was the sternum. The victim had lacerations of the left ear and numerous abrasions, scrapes and contusions of the chest. The coroner’s physician testified that, in his opinion, cause of death could not have been a fall in the room but could have resulted from one or more severe blows with the fists to the rib area. The victim’s blood showed an alcohol level of .067%. The physician could make no estimate of the time of death, or how long after the injury that death occurred.

Defendant was not seen around the apartment house after the evening of November 14. Several police visits to his St. Louis residence were unsuccessful in locating him and his door had been padlocked by the owner of the building. Defendant worked for moving companies and on occasion would accompany truck drivers out of town to assist them on moving jobs. A warrant for defendant’s arrest was issued December 4, 1973, and he was arrested in Marion, Arkansas on February 1,1974. Defendant did not testify and his case in defense consisted entirely of efforts to impeach Mrs. Moore.

The evidence is certainly sufficient to establish that Ms. Jones died from the criminal agency of someone, as a result of a beating. While no evidence directly shows that defendant administered the fatal beating, we find that all of the circumstances and inferences taken together support the verdict. Defendant was a frequent visitor to the apartment and with decedent up until the day of her fatal injury. After that date, he was not seen there again and had left his own apartment. He was seen in the apartment of the decedent twice on the evening of November 14, intoxicated and in a belligerent mood and was saying “dirty names” when he left. His question to Hathorne indicated a belief that his conduct had aroused suspicions and his comment following indicates belligerence. When Mrs. Moore arrived in the room, Ms. Jones was lying on the floor, bruised, and unable to get up. Throughout that period, defendant offered no assistance and no concern for Ms. Jones. Such conduct is difficult to explain unless defendant was responsible for Ms. Jones’ condition. While it would appear that the fatal beating occurred after Mrs. Moore’s visit, it is not unwarranted for the jury to conclude that a continuing course of conduct was involved. The jury was able to see defendant, which we have not, but the nature of his work would indicate sufficient strength to have administered the fatal beating. His subsequent departure and apprehension in a foreign state are evidence of flight and guilty knowledge. We have here criminal agency, presence of the defendant, conduct evidencing hostility and abuse, and flight. The evidence was sufficient to support the jury finding that defendant was the man who administered the fatal beating.

Defendant argues that the court erred in refusing to instruct the jury on excusable homicide. It is not error to refuse such an instruction where there is no evidence to support such a submission. There is no such evidence here. An accidental killing does not constitute excusable homicide within the meaning of Sec. 559.050 if the homicide was perpetrated in the commission of an unlawful act. State v. Browning, 442 S.W.2d 55 (Mo.bane 1969). The accused must act without wrongful purpose while engaged in a lawful enterprise, and without negligence on his part before the instruction can be given. State v. Cook, 512 S.W.2d 907 (Mo.App.1974). The deceased was killed as a result of an unlawful act, an assault, and no instruction on excusable homicide was required.

Defendant also complains that the testimony of where defendant was arrested was improperly admitted since no proper foundation for inferring flight was made. We disagree. Defendant’s absence from an area he had frequented daily, his move away from his apartment, his inability to be found in St. Louis, and his subsequent arrest in Arkansas raise an inference of flight. The weight of such evidence was for the jury, but the evidence was admissible. State v. Dupree, 477 S.W.2d 129 (Mo. 1972) [7].

Judgment affirmed.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.


text:
    E. Myrl HALMICH, Respondent, v. Billie R. McCULLOUGH and Bernice A. McCullough, his wife, Appellants.
    No. 36255.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 9, 1976.
    Gerald M. Poger, Clayton, for appellants.
    Dearing, Richeson, Roberts & Wegmann, Nicholas G. Gasaway, Hillsboro, for respondent.
   SMITH, Chief Judge.

Defendants appeal from the action of the trial court in denying their Motion to Set Aside Default Judgment. The default judgment was entered on April 19, 1974, following a hearing at which plaintiff testified at some length. Defendants, represented by counsel, never filed a responsive pleading and were not notified of, nor present at, the hearing. They had been personally served.

On May 10, 1974, defendants filed their motion to set aside. The motion was heard and overruled on May 21, 1974.

Defendants have not briefed the key question in this case, raised by plaintiff, whether the trial court had the jurisdiction to grant the motion on May 21. We conclude it did not and affirm. Neither the motion nor defendants’ brief specifically advises us which of the several rules allowing an attack on a default judgment defendants rely upon. The wording of the motion indicates that it is brought under the provisions of Rule 75.01. Further, none of the other rules apply to the facts of the case or the allegations of the motion.

A trial court has 30 days after the entry of a final judgment to vacate, reopen, correct, amend or modify its judgment under Rule 75.01. After that time it loses jurisdiction to do so.

“During this period, a default judgment is said to repose within the breast of the court, has not yet become final, and the act of setting it aside is but an exercise of the court’s discretion. The court may, during this period set aside the default judgment on its own initiative and any motion presented to it to that end is only a suggestion to the court that it exercise its discretion for that purpose. . . . Accordingly, we consider defendant’s Motion to Set Aside Judgment as such a suggestion which the trial court did not choose to heed. In this respect, the vitality of defendant’s motion expired when the court failed to vacate the judgment within thirty days of its entry.” Vaughn v. Ripley, 446 S.W.2d 475[1] (Mo.App.1969).

The authority of the trial court to set aside the default judgment ended on May 19. See Ratermann v. Ratermann, 485 S.W.2d 80 (Mo.1972).

Even if the motion were treated as a motion for new trial, the result would be the same. The motion was not filed within 15 days after the judgment and therefore was not timely. Only a timely after-trial motion extends the trial court’s jurisdiction beyond the thirty day limit. Rule 81.05.

Since the court had no jurisdiction to grant the motion to set aside on May 21, 1974, it did not err in denying the motion.

Judgment affirmed.

ALDEN A. STOCKARD, and NORWIN D. HOUSER, Special Judges, concur.


text:
    Jackie DAY, Plaintiff-Appellant, v. Paul F. NIEBUR, Defendant-Respondent.
    No. 36410.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 9, 1976.

      Samuel H. Liberman, St. Louis, for plaintiff-appellant.
    Shifrin, Treiman, Bamburg & Dempsey, St. Louis, for defendant-respondent.
   SMITH, Chief Judge.

Plaintiff appeals from a judgment against her in a court-tried case. Plaintiff sought to recover actual damages, punitive damages and injunctive relief against defendant for alleged discrimination against plaintiff in the rental of an apartment owned by defendant. Plaintiff is black.

Plaintiff raises four points. The first two are no more than abstract propositions of law and preserve nothing for appellate review. Rule 84.04(d). The fourth point relates to relief to be granted and is dependent upon a finding of discrimination. Point three is “A Plaintiff is entitled to Judgment as a Matter of law where the Court Finds that She has Established Facts Sufficient to Prove a Prima Facie Case, and the Defendant Presents No Contradictory Evidence Whatsoever As to those Facts.”

While this point is also deficient, we interpret it as raising solely the proposition that the plaintiff’s evidence established a cause of action, and therefore she is entitled to a judgment as a matter of law in the absence of contrary evidence from the defendant.

That is not the law. The burden of proof is upon the plaintiff. That burden carries with it the risk of non-persuasion. If a plaintiff has adduced evidence on all his points of proof, he has made a “prima facie” case and is entitled to submit his case to the trier of fact. That trier of fact may or may not accept that evidence as true and may or may not be persuaded thereby. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557 (banc 1932).

We entertain serious doubts, as did the trial judge, that plaintiff’s evidence even established a prima facie case. It is highly questionable that. the defendant’s agent treated plaintiff and a white “checker” differently. The agent’s initial response to each was the same — that no apartment was immediately available. Plaintiff made no further efforts or inquiries and was in the agent’s presence for only 3-5 seconds. The checker made further inquiries and was told that an apartment would be available in about a month. There was also substantial evidence from defendant that, if such difference in treatment occurred, it was not the product of discrimination but was based instead upon other considerations such as degree of interest or appearance. Defendant has black tenants in his apartment complex.

The court in finding for defendant, specifically referred to the credibility of defendant’s witness and the indecisive nature of plaintiff’s conduct. We find no error and affirm-the judgment.

Judgment affirmed.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles JOHNSON, Defendant-Appellant.
    No. 36700.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 9, 1976.

      Howard Paperner, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant, Charles Johnson, appeals from a judgment of conviction entered by the Circuit Court of the City of St. Louis, Missouri, on a jury verdict finding him guilty of stealing a motor vehicle, a felony. §§ 560.156 and 560.161, RSMo 1969. The court sentenced him to ten (10) years imprisonment in the custody of the Department of Corrections, § 556.280(1), RSMo 1969.

Since defendant does not question the sufficiency of the evidence, we set forth only those facts necessary to resolve the issues in question.

On August 22, 1974, while working on a rooftop surveillance team, Officer Charles Richmond saw the defendant enter a 1967 red Chevrolet, reach under the steering wheel, and drive away. Officer Richmond notified his two co-workers, Patrolmen Stanley Cunningham and James Smith. The two patrolmen stopped the defendant, took him into custody, and advised him of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When asked whether he wished to make a statement, defendant answered “Yes” and made a complete admission.

Within minutes thereafter, Detective Richmond joined his two colleagues, repeated the Miranda warning to defendant, and received substantially the same statement. Upon the arrival of the car owner, two or three minutes later, Detective Richmond once again asked defendant if he understood the rights that had been previously read to him. Defendant said that he did and repeated his statement.

On appeal defendant contends that the court erred (1) in failing to sustain his challenge to the entire jury panel on the ground that eleven of the twenty-four veniremen had been victims of automobile thefts and

(2)in failing to suppress his three statements because the officers failed to inform him that he had a continuing right to remain silent and to request an attorney. For the reasons set forth herein, we reject both claims and affirm the judgment of conviction entered by the trial court.

While eleven of the twenty-four veniremen indicated that they had been victims of automobile thefts, nine answered that their experience would in no way prevent them from giving the defendant a fair trial. One venireman whose car had been stolen within months of the trial was questioned extensively, and replied that she could presume defendant to be innocent and would require the state to prove its case beyond a reasonable doubt. Two of the eleven veniremen were not questioned at all as to their possible bias or prejudice.

From the record we do not know how many of the eleven questioned veniremen actually served on the jury. In any event, however, a litigant is entitled to a full panel of qualified jurors before making peremptory challenges, State v. Lovell, 506 S.W.2d 441 (Mo.1974).

Generally, a venireman who on voir dire shows his freedom from prejudice and his ability to give the accused a fair trial is qualified, State v. Miller, 264 Mo. 441, 175 S.W. 191, 194 (Mo.1915). The fact that a prospective juror has had an experience parallel to that of the injured party, without more, is not a sufficient reason to remove him for cause. In Leavitt v. St. Louis Public Service Company, 340 S.W.2d 131, 135-137 (Mo.App.1960), plaintiff sought recovery for injuries sustained while alighting from defendant’s streetcar. Two of the veniremen had been hit by cars within five months of trial. Both stated that their experiences would not affect their decision, and the challenges for cause were overruled. In State v. Eaton, 504 S.W.2d 12, 17 (Mo.1973) and Humphrey v. State, 502 S.W.2d 251 (Mo.1973), our Supreme Court reached the same results in burglary trials where the venireman had been the victim of a previous burglary.

Uniformly, our court has reposed a broad discretion in the trial court in determining whether a venireman is qualified to sit as a juror and has stated that the trial court’s ruling should not be disturbed unless it is clearly and manifestly against the evidence. State v. Jones, 384 S.W .2d 554, 558 (Mo.1964). In an earlier decision, Moss v. Mindlin’s Inc., 301 S.W.2d 761, 771-772 (Mo. 1957), the court set forth some guidelines for an appellate review:

“ . . . [UJnless there is some fact which, we reasonably can say, in and of itself, necessarily showed prejudice, or unless there is an admission of prejudice, past or present, or unless there is something in the demeanor of the venireman which, despite his actual words, discloses the existence of prejudice in fact, we should not convict the trial court of an abuse of discretion in overruling a challenge for cause. . . . ”

Here, without qualifications, nine veniremen answered unequivocally that they could give defendant a fair trial. In effect, defendant is asking us to presume, without proof, from the fact that the questioned veniremen who had had their cars stolen anywhere from seven weeks to ten years before the trial were biased as a matter of law. This we refuse to do because, if there were some latent bias or prejudice on the part of the veniremen in question, defendant failed to sustain his burden of proof in this regard. None of the veniremen went into details about his personal experiences or disclosed any matters which would have resulted in prejudice against the defendant. Consequently, we find no abuse of discretion and rule this claim of error against defendant.

Defendant’s second assignment is without merit. Here there was no prolonged interrogation; the entire questioning took place within minutes after he was arrested. On each occasion the officers gave him his full panoply of Miranda rights. Defendant acknowledged not only that he understood them, but also that he had been through the process before. In Miranda v. Arizona, supra, 384 U.S. at 473-474, 86 S.Ct. at 1627, the court stated:

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. . . . ”

Nothing in the record discloses any suggestion that defendant either attempted to refrain from or hesitated in making statements.

True, the state has the burden of proof to show that the statements were voluntary. State v. Nolan, 423 S.W.2d 815, 818-19 (Mo.1968). But here there is no question that defendant was neither threatened, physically abused nor promised anything in exchange for his statements.

As to the sufficiency of the warnings, a defendant’s claim that the officers never told him that his Miranda rights continued throughout the questioning was rejected in State v. Harper, 465 S.W.2d 547, 549 (Mo.1971). In Harper, the court said:

“ . . . [T]he Miranda opinion does not require, as an integral part of the initial warnings, that the defendant be informed that he has the right to terminate the questioning at any time . [T]he warnings given defendant were not deficient in not including the specific statement that defendant could terminate the interview or conversation at any time.”

We find no error in this regard.

Judgment affirmed.

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

      . “Number one: You have the right to remain silent. Number two: Anything you say can and will be used against you in a court. Number three: You have the right to a lawyer and to have him with you while you are being questioned. Number four: If you can’t afford to hire a lawyer, one will be appointed for you before any questioning if you so desire.”


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Dan PATTERSON, Defendant-Appellant.
    No. 9931.
    Missouri Court of Appeals, Springfield District.
    March 11, 1976.

      J. Max Price, Pros. Atty., Salem, for plaintiff-respondent.
    Gene Gulinson, Salem, for defendant-appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Defendant Dan Patterson was court-tried and convicted of making “repeated telephone calls” during a 7-week period (3 May to 20 June 1973) “for the sole purpose of harassing” Maxine Lough. § 563.910-1(4), V.A.M.S. The court sentenced defendant to one year in the county jail with nine months of credit for prior successful probation time. During the 7-week period in question, Dan was the mayor and Maxine was the city clerk of Bunker, which we judicially note to be a city of the fourth class [State ex rel. Patterson v. Tucker, 519 S.W.2d 22, 25 (Mo.App.1975)] with a 1970 population of 447. Gehner v. McPherson, 430 S.W.2d 312, 317[12] (Mo.App.1968). Maxine became city clerk on or about 1 May 1973.

The evidence against defendant was that with the single exception of one call to Maxine at her home, the calls were made to the grocery store operated by Maxine. All calls, save one, related to “city business”, and the exception was when defendant “told me he had heard that I had said that I would show him this and that if I was city clerk.” According to Maxine, defendant called “[sjometimes twice a day, sometimes three times a day, and on one occasion, . I think, as much as five times a day.” An amplifier was attached to the grocery store telephone for two days so others (who later appeared as witnesses for the state) could hear the conversations. Defendant called two or three times while the amplifier was connected. “One time” concerning all the calls, so Maxine testified, defendant “asked for a form,” but the subject of all other calls was that defendant “wanted the [city] books brought back to the city hall.” Maxine steadfastly refused to return the books contending she was under orders from the board of aldermen to keep them “until the auditor came by,” which contingency, as we read the record, never occurred during the 7-week period. Defendant always identified himself when he called, never cursed, “never raised his voice . . too much,” and he and Maxine referred to one another on a first-name basis. Maxine recounted that “on this one particular morning that he called [I told him] I wished he wouldn’t call me any more [but] he did.” As time went on and Maxine remained adamant in her refusal to return the city books, defendant became “quite sarcastic several times [and] finally . he says ‘You will be arrested and put in jail,’ that I would be in serious trouble.” Around June 20, Maxine had her “phone disconnected, had an unlisted number.”

In defense, defendant denied having called Maxine “four or five times a day” and estimated “I never called no more than ten times in the seven week period.” He considered the calls necessary to obtain information for revenue sharing, to supply data to the Missouri Clean Water Commission, to answer correspondence, et cetera. Defendant admitted advising Maxine “that she may have been in a lot of trouble” by refusing to provide him with requested information and for not returning the books to the city hall, but asseverated that he “never once threatened her with arrest.” Defendant described each call as “very brief” in duration, and introduced evidence that the city clerk of Salem received an average of 15 to 20 calls in a two-week period from her mayor.

We know of no Missouri authority construing the bounds or describing the constituent elements of § 563.910-1(4), supra n. 1. However, as we undertake that task for the first time in this state, we heed the axiom that courts should refrain from extending a statute beyond its proper limits and that a law defining a particular offense must be construed liberally in favor of the accused and strictly against the state. State v. Ghadeayne, 323 S.W.2d 680, 685[4] (Mo. banc 1959). Furthermore, a statute will not be interpolated as embracing any but those clearly described both within the letter and spirit of the law [State v. Alder man, 500 S.W.2d 35, 36-37[2] (Mo.App. 1973)], and should fair doubt arise as to whether the accused is included within a given statute, that doubt will be resolved in his favor. State v. Hall, 351 S.W.2d 460, 463[3] (Mo.App.1961). Of course, in addition to the state’s usual burden in a criminal cause, there is also its burden of adducing substantial evidence of every constituent element of the offense charged. State v. Smith, 485 S.W.2d 461, 464[3] (Mo.App. 1972). As confined to the circumstances of this case, it seems clear that the constituent elements of the offense laid against defendant herein under § 563.910-1(4) are that he (a) made repeated telephone calls to Maxine (b) during which conversation ensued (c) solely to harass Maxine.

The court’s finding that defendant was guilty at the conclusion of the bench trial had the force and effect of a guilty verdict. Rule 26.01(b), V.A.M.R.; State v. Daniels, 487 S.W.2d 465, 469[4] (Mo.1972). This being so, the guilty verdict constrains us to view the evidence in the light most favorable to the verdict, accept all evidence and proper inferences therefrom which support the verdict, and reject all contrary evidence. State v. Garrett, 518 S.W.2d 97, 100[5] (Mo.App.1974). In awe of these commandments we cede that the state established constituent elements (a) and (b), supra, id est, that defendant made repeated telephone calls to Maxine during which conversations ensued. As to constituent element (c), ante, the state was required to prove beyond a reasonable doubt that the purpose of the calls was “solely to harass” Maxine, thereby making defendant’s intent and motive issues in the case. State v. Goode, 118 Ohio App. 479, 195 N.E.2d 581, 584 (1962). In our opinion the state failed to sustain its onus probandi as to the third element.

Most authorities we have conned were involved with statutes differing from § 563.910 or with parts of similar statutes unlike Subsec. 1, subd. (4) of our law. Nevertheless, the cases perused indicate a reluctance to apply so-called criminal telephone statutes with liberality against the accused, sometimes because of freedom of speech guarantees under the First Amendment, and more often because of an understandable unwillingness to criminalize the normal risks of unpleasant human intercourse emanating from neighborhood feuds, romantic rumbles, family fall-outs, and small-town-type political bickerings or enmities. United States v. Darsey, infra n. 2, D.C.Pa., 342 F.Supp. 311 at 313-314; State v. Hulsey, infra n. 2, 15 Ohio App.2d 153, 239 N.E.2d 567. It has previously been indicated herein that in May and June 1973 defendant was the mayor of Bunker. However, when this case was tried in November 1973, defendant was characterized as “the impeached mayor of Bunker.” State ex rel. Patterson v. Tucker, supra, 519 S.W.2d 22, advises that sometime between June and November 1973, defendant had been removed from office by the board of aldermen pursuant to § 79.240, V.A.M.S., that at the next general city election held about five months later on April 2, 1974, defendant received the highest number of votes for mayor, and that the then board of aider-men (with one exception) refused to cause a certificate of election to be issued to defendant or to allow him to take office as mayor of Bunker. From this and the aroma of animosity to be sniffed out of the instant record, it is evident that any political love which may have been lost between Maxine (obviously dedicated to the dictates of the board) and defendant was negligible.

Our statute [§ 563.910-1(4)] specifies that before an accused may be properly convicted under the act, the repeated telephone calls must have been made “solely to harass.” Had the General Assembly desired to dilute the statute to make it a crime to institute repeated calls with other intents mixed with harassment, it would have been a simple matter for it to have said so or to have deleted the word “solely.” DePoortere v. Commercial Credit Corporation, 500 S.W.2d 724, 727 (Mo.App.1973). Courts, in determining the meaning and application of statutes, are obliged to take words in “their plain or ordinary and usual sense.” § 1.090, Y.A.M.S.; State v. Brady, 472 S.W.2d 356, 358[1] (Mo.1971). Also, significance and effect should be afforded every word, phrase and sentence of a law. State ex rel. Wright v. Carter, 319 S.W.2d 596, 600[6] (Mo. banc 1958). Consequently, we have no leave to ignore, alter, or corrupt the' ordinary, usual and plain meaning of the word “solely”; neither may we cripple the word with strained wrenchings at its well-understood import.

“Solely” is synonymous with “only,” “exclusively,” “entirely,” and “wholly.” It means “exclusively for,” “nothing else,” “to the exclusion of other purposes,” “apart from all others,” “to the exclusion of alternate or competing things,” and “to the exclusion of all else.” It “leaves no leeway” and is equivalent to the phrase “and nothing else.” Stockton Harbor Indus. Co. v. Commissioner of Int. Rev., 216 F.2d 638, 645 (9th Cir. 1954); Bergsvik v. Bergsvik, 205 Or. 670, 291 P.2d 724, 730 (1955); Moore v. Stevens, 90 Fla. 879, 106 So. 901, 904, 43 A.L.R. 1127, 1131 (1925); People ex rel. Divico v. Adams, 264 App.Div. 315, 35 N.Y. S.2d 453, 455[1] (1942); Webster’s Third New International Dictionary of the English Language Unabridged, p. 2168; Webster’s New Collegiate Dictionary, p. 1106; Webster’s New World Dictionary of the American Language (College Ed.), p. 1387; The American Heritage Dictionary of the English Language, p. 1229.

Under Missouri statutes relating to cities of the fourth class (Ch. 79, V.A.M.S.), the mayor “shall exercise a general supervision over all the officers and affairs of the city” (§ 79.120); he “shall sign all orders, drafts and warrants . . . and cause the city clerk to attest the same . . . and to keep an accurate record thereof in a book” (§ 79.190); he is required to “cause all subordinate officers to be dealt with promptly for any neglect or violation of duty” (§ 79.-200); and “shall have power, as often as he may deem it necessary, to require any officer of the city to exhibit his accounts or other papers or records.” § 79.-350.

We eschew the chore of recasting all the evidence in detail or describing every claimed or counterclaimed abuse on both sides. It suffices to say that on the one hand we have a neophyte city clerk, patently hostile to the mayor, who is ostensibly aiding and abetting an equally antagonistic board of aldermen by continually denying the mayor’s entreaties to return the city books to the city hall where city business normally would be conducted. On the other hand we have a mayor, vested with the statutory authority and duties above recounted, who is confronted with thwart-ings of his administrative directives. To overcome these real or imaginary challenges, the mayor initiates numerous telephone calls to the city clerk at her grocery store during business hours concerning “city business,” requesting or demanding, inter alia, that she return the city books to the city hall. During the conversations, the mayor raised his voice on occasion, became sarcastic several times, and finally suggested the recalcitrant city clerk was in serious trouble and could be arrested and jailed. The mayor’s part of the dialogue was devoid of cursing and profanity; no obscene, lascivious, filthy or indecent comments or suggestions (usually the basis for objectionable telephone calls) were employed. Under such circumstances the question is this: Who can, beyond a reasonable doubt, attribute the mayor’s tenacity, vocal nuances and outbursts of pique to an unadulterated intent and motive “solely to harass,” as opposed to perhaps an unwise persistency embracing expressions emitted by a frustrated person imbued with foibles common to most homo sapiens? The question, to us at least, is self-answering: and we further observe the fact that Maxine, as she claimed, was upset by defendant’s telephone calls and had her telephone disconnected is not sufficient by itself to show that defendant’s intent and motive in making the calls were solely to harass. Caldwell v. State, supra n. 2, 337 A.2d at 487. Granted that defendant’s behavior was not always reasonable, prudent, above reproach or completely lacking in elements of harassment, yet the state, even in the best light of its evidence, did not prove beyond a reasonable doubt that defendant’s intent and motive for initiating the repeated calls were only, exclusively, wholly, entirely and solely to harass Maxine. Therefore, the judgment nisi is reversed and defendant is discharged.

It is so ordered.

All concur.

      . Sec. 563.910 — “1. It shall be unlawful for any person to: . (4) Individually . . make repeated telephone calls, during which conversation ensues, solely to harass any person at the called number.”

      . Stallworth v. State, 52 Ala.App. 619, 296 So.2d 243 (1974); Baker v. State, 16 Ariz. App. 463, 494 P.2d 68 (1972); State v. Robinson, 23 Conn.Sup. 430, 1 Conn.Cir. 292, 184 A.2d 188, 97 A.L.R.2d 500 (1962); United States v. Darsey, 431 F.2d 963 (5th Cir. [Fla.] 1970); People v. Cooper, 336 N.E.2d 247 (Ill.App.1975); State v. Holliday, 22 Iowa 397, 169 N.W.2d 768 (1969); State v. Hochenedel, 253 La. 263, 217 So.2d 392 (1968); Nichols v. State, 5 Md.App. 340, 247 A.2d 722 (1968); Caldwell v. State, 26 Md. App. 94, 337 A.2d 476 (1975); People v. Green, 63 Misc.2d 435, 312 N.Y.S.2d 290 (1970); State v. Godwin, 267 N.C. 216, 147 S.E.2d 890 (1966); State v. Murphy, 176 Ohio St. 385, 199 N.E.2d 884 (1964); State v. Hulsey, 15 Ohio App.2d 153, 239 N.E.2d 567 (1968); State v. Goode, 118 Ohio App. 479, 195 N.E.2d 581 (1962); State v. Zeit, 539 P.2d 1130 (Or.App.1975); United States v. Darsey, 342 F.Supp. 311 (E.D.Pa.1972); Alobaidi v. State, 433 S.W.2d 440 (Tex.Cr.App.1968), cert, denied, 393 U.S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281 (1968); Schuster v. State, 450 S.W.2d 616 (Tex.Cr.App.1970); Shaw v. State, 465 S.W.2d 169 (Tex.Cr.App.1971); Walker v. Dillard, 523 F.2d 3 (4th Cir. [Va.] 1975); State v. Hastings, 133 Vt. 59, 330 A.2d 87 (1974); Annot., 97 A.L.R.2d 500, 503-510 (1962); 47 U.S.C. § 223 is almost identical to § 563.910 and is the statute involved in the above two Darsey cases.


author: DAVIS, Special Judge.

text:
    FOREST INC. OF KNOXVILLE, Plaintiff-Appellant, v. GUARANTY MORTGAGE COMPANY, INC., Defendant-Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 23, 1975.
    Certiorari Denied by Supreme Court March 8,1976.
    W. Keith McCord, Knoxville, for plaintiff-appellant; Egerton, McAfee, Armi-stead, Davis & McCord, Knoxville, of counsel.
    E. Bruce Foster, Ronald C. Koksal, Knoxville, for defendant-appellee; Frantz, McConnell & Seymour, Knoxville, of counsel.
   OPINION

DAVIS, Special Judge.

The parties will be referred to as they appeared in the trial Court, plaintiff and defendant, as indicated above.

By its complaint plaintiff avers defendant is indebted to it in the sum of $26,-550.00, the sum of certain notes constituting the balance of the consideration for building lots it sold to Dean Cate, the notes being secured by Cate’s deed of trust on said lots.

Plaintiff alleges there was an accepted ! practice custom and policy in the area that a land developer, such as plaintiff, sells lots to a contractor, such as Cate, who borrows money from a construction lender, such as defendant, to finance the construction of buildings on the lots; that the lender obtains a deed of trust from the contractor to secure its loan, which deed of trust is recorded prior to the developer’s deed of trust, or failing in that, the lender takes a subordination agreement from the developer giving the construction lender a prior lien over the developer’s deed of trust; that during the construction of the buildings the lender agrees to advance funds to the contractor at certain stages of construction in sums substantially on a ratio equal to the percentage of completion after the lender inspected the construction; that part of the custom was for the lender to inspect the construction, not over-advance funds to the contractor thereby protecting the interests of suppliers, materialmen, the developer and all having an interest, monetary in nature.

Plaintiff alleges that it did subordinate its indebtedness owed it by Cate to deeds of trust and notes of defendant so defendant would, and did, furnish construction funds to Cate. It asserts that defendant failed to properly inspect and supervise the construction, over-advanced funds to Cate before the buildings were completed, the funds were depleted to the point Cate could not finish the work, with the result, that defendant foreclosed under its deed of trust and kept the proceeds of the sale after advising plaintiff there were not enough funds to pay its subordinate notes in the sum of $26,550.00. It alleges it suffered the losses for which it sues because of defendant’s action. Basically, as indicated in argument in open court on this appeal, the plaintiff asserts it is entitled to recover on contract, if not express, implied, that the consideration flowing from defendant to plaintiff was a duty of defendant to follow the custom existing in the industry in return for subordinating its security to that of defendant.

Pertinent parts of the defendant’s answer include its denial of the existence of a practice or custom that construction lenders inspect the construction to protect the seller of the lots, the developer, but that such inspection was solely for its own protection, not for benefit of others with whom it had no contractual relationship. Defendant averred all loan commitments were made on basis of 75% of estimated cost of land and improvements when fully completed; that its absolute policy was not to accept any security less than a first mortgage except on rare occasions it might enter into a written agreement to pay some specifically designated obligation for a builder; denies the subordination agreement was executed for consideration of the assumption by defendant of any fiduciary relationship with plaintiff and denies any fiduciary relationship ever existed between them. Defendant asserts it did not inspect the construction for benefit of the plaintiff and had no duty to do so; that its commitment to Cate was based only on estimates of cost of completion of the houses, and for only 75% of the estimated cost of the land and completed houses, and it was never intended that defendant advance the total cost to Cate. Defendant denies it wrongfully advanced funds to Cate or indiscriminately disbursed funds to Cate or that its actions prevented Cate from finishing the work. Defendant admits Cate defaulted and that it foreclosed its mortgage after plaintiff refused defendant’s tender of offer to permit plaintiff to complete the construction and thus minimize losses on plaintiff’s mortgage; denies any action of defendant caused plaintiff harm or damages or losses; denies it is obligated to plaintiff in any sum for any reason.

After a somewhat lengthy trial the trial judge held there was no contractual relationship established between the parties that would support a recovery; that no equitable relationship was shown justifying a recovery and that defendant did not estop itself from relying on plaintiff’s subordination agreement. The plaintiff has appealed the dismissal of its action and assigned the following errors:

ASSIGNMENTS OF ERROR

1. The Trial Court erred in ruling as a matter of law that the plaintiff could not recover from the defendant because there was no contractual relationship between defendant and plaintiff, notwithstanding the fact that the Trial Court found that there such a custom, practice and standard in the industry which had been violated by the defendant.
2. The Trial Court erred in ruling as a matter of law that the plaintiff could not recover from the defendant in equity because there was no equitable relationship between the parties and therefore “The custom of the trade which otherwise might control does not apply to their situation”.

It appears that the evidence establishes the following facts;

In June 1972 there existed in the housing construction and development industry in the Knoxville area a custom and practice that land developers sell lots to a contractor or builder of dwellings, taking notes for unpaid portion of the purchase price secured by a deed of trust. The contractor would then borrow money from a construction lender, giving notes secured by deeds of trust, which deeds of trust were made a first lien on the property by the execution by the developer of a- subordination agreement to that effect. It was part of the custom and practice of the industry that the construction lender not advance the construction loan to the contractor in substantially greater portions than the advancement bore to the stage of completion of construction at the time of the particular advancement of money. Advances would usually be made after periodic inspections of the construction work.

The foregoing stated custom and practice was one that varied some with different construction loan lenders, particularly as to the number and dates of inspection in relation to the stage of construction. It was a custom loose, general, but usually adhered to as compared to another practice or custom in the industry which was inflexible and strictly followed and understood by developers, builders and lenders alike. This latter practice and custom was that construction loan lenders never loaned any sum unless secured by a first mortgage or lien; that the party executing a subordination agreement did so with no qualifying conditions contained in it; that unquestionably such lender held the prior security. It was also generally believed, understood and accepted in the industry that the execution of an unconditional subordination agreement did not carry with it or create on the part of such lender any duty to protect the lot seller’s interest, nor did it create a fiduciary obligation on the lender to the developer which in any manner equaled or excelled the lender’s first duty and right to protect its own investment.

Plaintiff owned certain sub-division lots and sold at least nine of them to Dean Cate. It took notes, secured by deed of trust, for the unpaid portion of the purchase price. It was understood between them that plaintiff would subordinate its security or lien to one that Cate would give to a construction lender from whom he would borrow money to build dwellings on the property. Cate borrowed over $200,000.00 from defendant, giving his notes and securing their payment by deeds of trust dated June 8, 1972, the latter being recorded. The loan was for 75% of the estimated value of the lots and improvements when completed.

Thereafter, on June 18, 1972 plaintiff did execute an unqualified, unambiguous, unconditional subordination agreement which made defendant the holder of the first lien on said nine lots to secure defendant’s loan to Cate. This was the first business transaction or dealing either party had had with the other and was consistent with the fact that such subordination agreements used in the industry did not have any limiting conditions, especially conditions governing how or when the money was to be disbursed to the borrower.

During the course of construction defendant made over-advances of money to Cate on nine occasions, a total of about $37,-000.00, that is, advances in excess of what the custom and practice indicated should have been made at the time.

It appears that plaintiff believed the defendant would disburse the advancements of construction loan money in accordance with existing custom as it understood it, but made no inspection of the property itself, made no request for inspections, and no inquiry about the status of money advancements to Cate.

It appears the primary reason for the over-advancements by defendant to Cate was it having confidence in his ability, integrity and experience to complete buildings, to give Cate a better opportunity to complete the houses in spite of the losses of material on the site stolen from Cate. Certainly there is no evidence that defendant’s actions were intended to mislead or defraud anyone, nor that it thought that the result would inevitably be a loss suffered by plaintiff or others. Defendant apparently acted in this regard as business prudence would dictate, that is, try to protect its own interest, although it had no desire to further impair the financial interest of less secure creditors of Cate.

Whether Cate suffered so much loss of material on the site from theft, or the increase of cost of materials and labor after he began construction, or the dramatic surge of inflation generally brought about his inability to complete the construction is difficult to say. There is no evidence he used the advanced money improperly. He did fail and it was necessary for the defendant to foreclose its first mortgage after plaintiff declined an opportunity to elect to assume or pay Cate’s indebtedness to defendant and attempt to save itself by other means.

The two assignments of error and the principles of law and the facts are so closely related and intertwined that they will be considered together.

In Morton v. Martin Aviation Corporation, 205 Tenn. 41, 325 S.W.2d 524, it is said:

“Our authorities generally hold that usages or customs of trade, to be effectively binding in law, must be imperative and compulsory in character and so well known as to affect the person to be bound with knowledge of them and raise the presumption that be dealt with reference to them.”

It appears to be settled in instances where a custom is not involved, or if existing is not binding, that advances of construction funds to a builder are in discharge of the lender’s contract, and in absence of an express contractual provision to see to the application of the funds, there is neither an obligation nor a duty to do so for those creditors subordinate. Kingsport Brick Corp. v. Bostwick, 145 Tenn. 19, 235 S.W. 70.

We believe the custom as found to exist was not so imperative and compulsory as to be binding in law or to constitute a consideration for an implied contract, and that defendant owed plaintiff no duty to follow the custom in advancing funds.

Where a custom or usage is involved in the dealings between parties our Supreme Court has said that a plaintiff basing his right to recover upon breach of contract cannot recover by proof of usage and no proof of contract, or proof of a custom and no proof of a contract. In discussing a contract the court pointed out the several essential elements of contracts, express and implied, among which were mentioned “a meeting of the minds in mutual assent to its terms . . . founded on sufficient consideration . . . and [be] sufficiently definite.” American Lead Pencil Co. v. Nashville, C. & St. L. Ry., 124 Tenn. 57, 134 S.W. 613.

We believe there was no meeting of the minds of the parties on a provision that the custom involved was a part of, or constituted consideration for any contract between them, express or implied; that the custom relied upon was not a part of any contract between the parties, express or implied; that defendant breached no contract with, or duty it owed to plaintiff; that defendants primary intention in its dealings with Cate was to do that which would best insure á successful completion of the buildings and their sale; that defendant exercised any and all care required of it in Connection with the custom of the industry consistent with the right, reasonably exercised, to protect its own large investment.

We here quote rather extensively from the opinion of the learned Chancellor who tried this case.

“In these circumstances it must be determined what effect the custom and practice of paying in proportion to complete construction has. Plaintiff cites the following cases in support of its position: Housing Mortgage Corp. v. Allied Constr. Inc. (1953) 374 Pa. 312, 97 A.2d 802; Cambridge Acceptance Corp. v. American National Motor Ins. Inc., et a1. (1967) 96 N.J.Super. 183, 232 A.2d 692; Cambridge Acceptance Corp. v. Leo Hockstein et a1. (1968) 102 N.J.Super. 435, 246 A.2d 128 [138]; Miller v. Citizens and Loan Association (1967) [248] Cal.App. [2d 655], 56 Cal.Rptr. 844; Middlebrook-Anderson Co. v. Southwest Savings and Loan Association (1971) 18 Cal.App.3d 1023, 96 Cal.Rptr. 338. It appears from these cases that where there is an agreement or stipulation for the construction lender to supervise disbursement of funds it must do so in accord with that agreement or stipulation. Such an agreement has been found in various circumstances where the subordinating vendor and the construction lender have had dealings together in connection with the involved project. However, where the proofs do not establish some sort of dealings between the vendor and lender there appears to be no obligation from the lender to vendor with respect to advancement of constructions. This view is clearly expressed in the Hockstein case, supra, where the Court said:

“Yet it is the general view, recognized by respectable authority, that absent an express stipulation between the subordinator and the construction lender conditioning the scope of the subordination, diversion of the construction money by the borrower from its contemplated use will not dislodge the advanced lienor from his bargained-for priority ‘in the absence of collusion with the mortgagor in diverting the money from its purpose.’ IV American Law of Property, § 16.106D, p. 218 (1952; A. James Casner, Editor); 1 Jones on Mortgages, § 742, p. 1105 (1928); Note, 42 Yale L.J. 980, 982 (1933); Brooklyn Trust Co. v. Fairfield Gardens, 260 N.Y. 16, 182 N.E. 231 (Ct.App.1932); Gill v. Mission Savings & Loan Association, 236 Cal.App.2d 753, 46 Cal.Rptr. 456 (D.Ct.App.1965); Matthews v. Hinton, 234 Cal.App.2d 736, 44 Cal.Rptr. 692, 697 (D.Ct.App.1965); Iowa Loan & Trust Co. v. Plewe, 202 Iowa 79, 209 N.W. 399 (Sup.Ct.1926), commented on in 12 Iowa L.Rev. 201, 203 (1927); Anglo-American Savings & Loan Association v. Campbell, 13 App.D.C. 581, 43 L.R.A. 622 (1898).
Where, however, the construction mortgage expressly agrees with the subordinator to see to it that the proceeds of his loan will be applied to construction of the improvement he will be held to his agreement and will lose his priority as to any advance not going into the construction. Albert & Kernahan v. Franklin Arms, 104 NJ.Eq. 446, 146 A. 213 (E. & A.1929); Joralman v. McPhee, 31 Colo. 26, 71 P. 419 (Sup.Ct.1903); see Wayne International Building & Loan Association v. Moats, 149 Ind. 123, 48 N.E. 793 (Sup.Ct. 1897).”

Notwithstanding, its conclusion that there was no express agreement the Court in the Hockstein case decided on equitable principles that the lender had an obligation to see that construction funds went into the intended construction. The Court said:

“While, under general principles of mortgage subordination law outlined above, a construction lender taking the benefit of a subordination is not a guarantor to the subordinator or liable to him for mere negligence in seeing to the appropriation of the moneys to the construction, we think plain principles of equity at least call for such a construction lender to make and administer the loan in the conventional manner of a construction lender rather than mask what is essentially a loan on the general credit and reliability of the borrower and the security of the land value as a construction loan, and act accordingly in disbursing the funds. We are firm in the conclusion, and so find, that the latter is what the First National did here, and in violation of .the owner’s equitable rights.”

In the Hockstein case First National, the lender, made no effort at all to administer its loan as a construction loan, and there was virtually no attempt at all to see that the loan funds advanced went into the construction. Under these circumstances the Court held the lender equitably estopped to assert the subordination.

Whether the theory be contractual in nature or equitable, the cases recognizing or

holding that the lender cannot take advantage of the land seller’s subordination have involved situations where there has been some sort of dealings between the lender and land seller. If the. basis is contractual, the lender must be shown to have agreed in some manner to the subordination in connection with a construction contract under circumstances which permit a finding that the lender was obligated to supervise loan distribution. If the basis is equitable, the parties must be shown to have engaged in some dealings in circumstances wherein the lender led the subordinating seller to believe the lender would advance loan proceeds in a manner contrary to that which later happened.

Here Plaintiff relies on a custom of the trade with respect to loan advances which has been found to exist. However, a custom of the kind here involved does not itself create a contract or an equitable relationship. A custom of the trade explains or gives meaning to dealings between parties. Generally, where there have been no dealings between the parties, a contractual or equitable obligation cannot arise and in such circumstances there is no legal relationship to which a custom or useage may apply. Thus the Supreme Court said in American Lead Pencil Co. v. Nashville, C. & St. L. Ry. (1911) 124 Tenn. 57,134 S.W. 613:

“We cannot bring ourselves to the conclusion that a bill, which bases the complainant’s rights to recover upon the breach of a contract, can be sustained by proof of a usage and no proof of a contract, or proof of a custom and no proof of a contract.”

In this case it has not been shown that the parties had any dealings from which an agreement might be found. About all that happened was that Plaintiff subordinated its security to Defendants’ interest. There was no showing of any further dealings between the parties. Thus there was no contractual arrangement to form a basis for Plaintiff’s claim. Similarly, Defendant was not shown to have dealt with Plaintiff in such a manner as to affirmatively mislead Plaintiff as to the manner in which it would disburse loan funds. In the Hockstein case the parties took part in establishing the financing arrangements and then the lender totally failed to see that the loan funds went into the construction as to which the seller subordinated. In the present case the Defendant advanced funds as construction proceeded, apparently believing they were going into the construction. The proofs do not establish that the funds did not go into the construction, merely that they were advanced too soon. It may be that some funds were not used in homes, but as far as the proofs are concerned this is not established. It may be that escalating labor and material costs made the funds advanced inadequate to pay for all the costs of construction. The proofs do not show a mis-payment or diversion of funds by Defendant that were contrary to anything Defendant may have represented to Plaintiff. Defendant did nothing to equitably estop itself from relying on Plaintiff’s subordination document. Thus, Defendant not having dealt with Plaintiff so as to establish a contractual or equitable relationship between the parties, the custom of the trade which otherwise might control does not apply to their situation. It is concluded that Plaintiff may not recover against Defendant.”

The assignments of error are overruled, the judgment of the Trial Court is affirmed. Plaintiff-appellant is taxed with cost of the cause.

SANDERS, J., and LUKE M. McAMIS, Special Judge, concur.


author: SANDERS, Judge.

text:
    Buddy W. DAY v. MUTUAL OF OMAHA INSURANCE COMPANY.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 23, 1975.
    Certiorari Denied by Supreme Court March 22, 1976.

      Randall E. Nichols, Knoxville, for Buddy Day.
    Ray Lee Jenkins, Knoxville, for Mutual of Omaha.
   OPINION

SANDERS, Judge.

This case involves a question of whether or not a policy of insurance for disability benefits is void because of failure of the insured to fully disclose his medical history, his correct monthly income and other insurance coverage in his application for insurance.

The Plaintiff, Buddy W. Day, filed suit against the Defendant, Mutual of Omaha Insurance Company, in the Law and Equity Court for Anderson County. The Complainant alleges that the Defendant issued a policy of insurance to the Plaintiff on August 17, 1972, providing for payments of $500.00 per month to the Plaintiff during his disability due to accident or illness. On September 1, 1972, the Plaintiff was involved in an accident resulting in his disability and the Defendant has refused to pay according to the provisions of the policy. Plaintiff also seeks to recover a bad-faith penalty.

The Defendant, for answer to the complaint, says that the Plaintiff made certain material misrepresentations of fact in his application for insurance; that the misrepresentations materially misled the underwriters of the Defendant and, had the true facts been known, the policy would not have been issued.

The Defendant says (a) the Plaintiff failed to fully disclose his medical history and treating physician; (b) Plaintiff was suffering from a pre-existing psychotic neurosis and not from disabling injuries; (c) he had in existence other disability insurance which he failed to disclose; (d) he overstated his monthly income, resulting in his being overinsured. Also, by way of counter complaint, the Defendant seeks to have the contract of insurance rescinded.

The case was tried before The Honorable Roland Prince, Chancellor, who found that the Plaintiff should recover for three months’ benefits under the policy, but his disability beyond that period of time was due to a condition which pre-existed the policy and his failure to disclose this condition in his application for insurance precluded his recovery. The Chancellor also disallowed the Plaintiff’s claim for bad-faith penalty.

Both sides have appealed and assigned error.

The Plaintiff says that it was error for the Court to hold that his problems pre-ex-isted the accident and his failure to disclose his condition precluded his recovery, and to deny the bad-faith penalty.

The Defendant says the Court erred in allowing any benefits under the policy after having held there was a material misrepresentation in the application for insurance.

The proof shows that the answers to the questions on the application for insurance were furnished by the Plaintiff to the insurance agent and the agent filled in the application. When the application was completed it was signed by the Plaintiff and became a part of the policy. The application asked a number of questions concerning specific types of illness from which the applicant may have suffered and requested an answer of “yes” or “no.” To all these questions the Plaintiff answered “no.” As pertinent here, the application also asked:

“2. Have you . . . ever had, or been advised by a physician that you had, or received advice or treatment for: (Circle conditions answered ‘yes’ and give details in 5. below.) . (d) Mental or nervous trouble, . . . .”

The answer of the Plaintiff to this question was “no.”

“3. Have you . . . had or been told you had, or. received advice or treatment within the past five years for: (a) any physical conditions or injuries not mentioned above, or (b) any symptoms of ill health? _ (Give details in 5. below.)”

To this question the Plaintiff answered “no.”

“4. Have you . . . had any physical examinations during the past year? _ If ‘yes,’ give reason for examination, treatment provided, and diagnosis, if any, in 5. below.”

To this question the Plaintiff also answered “no.”

The proof shows the Plaintiff’s answers to these questions to be false.

During the preceding five-year period the Plaintiff had been treated by Dr. Russell for a variety of complaints. Dr. Russell testified that he saw the Plaintiff on numerous occasions between 1969 and the date of the accident on September 1, 1972, which precipitated this litigation.

In describing the complaints of the Plaintiff and his diagnosis and treatment of the Plaintiff, Dr. Russell testified, in part, as follows:

“A. All right. June 17th, ’69, he was having pain in his shoulder. The impression at that time was myositis, which could be muscle strain or inflammation of the muscle. It did subsequently respond to treatment. December ’69, sinusitis. December 23rd, ’69 because he couldn’t sleep at night. He was depressed, tense, having tension headaches. On October 12th, 1970, he complained of pain in his shoulder. The findings were negative at that time, but he responded to some conservative care of heat and analgesics. November the 9th, 1970, having multiple complaints of night sweats, coughing yellow, coughing blood, pain keeping him awake at night. His chest was sore, several complaints, and also having some indigestion. At this time I thought this was primarily psychosomatic pain. His workup at that time was negative. February of ’71, he had an aphthosis ulcer, which is a minor irritation of the mouth and throat, as you probably know. April 22nd, ’71, he had some mild bronchitis with multiple pains . . . shoulders painful, vomiting blood, thought his work was causing him to have so much pain. Said he had waited for me for two weeks and he finally came in having vomited some dark blood three days before and he was coughing and said he was congested and having indigestion and headaches. This time I suggested that he might see a psychiatrist and treated him symptomatically.”
******
“. . . May 25th, headaches and having pressure across his forehead and pain relievers didn’t help and again he told us about the bleeding situation and a blood test again was run and it was negative. He was treated for sinusitis again in November of ’71, and he had the flu in February of ’72.”

The proof shows that on September 1, 1972, while the Plaintiff was at the rear of an automobile with a “U-Haul” trailer attached, the automobile rolled backward and the Plaintiff was struck by the trailer.

We think the proof clearly establishes that the physical injuries Plaintiff received as a result of this accident were minimal and not disabling. However, the proof does show that the Plaintiff is disabled because of psychosomatic illness. There is a direct conflict in the medical testimony as to whether the Plaintiff was suffering from the psychosomatic illness prior to the accident or whether it was the result of the accident.

Dr. Russell testified that he examined the Plaintiff after the accident and found no disabling injuries. He released the Plaintiff to go back to work but the Plaintiff continued to complain of injuries which could not be substantiated by objective examination.

On November 3, 1972, Dr. Russell referred the Plaintiff to Dr. Wright, a psychiatrist. Dr. Russell testified that, in his opinion, the Plaintiff’s psychosomatic illness was not the result of this accident, but had existed since 1969.

Di*. Wright testified, however, that, in his opinion, the Plaintiff’s psychosomatic illness resulted from the accident and did not exist prior thereto.

At the conclusion of the testimony in the trial of the case, the Chancellor made a finding of fact that the Plaintiff’s illness existed prior to the accident. The following colloquy occurred between Plaintiff’s counsel and the Court:

“MR. HEDGES: Then, Your Honor, are you finding as an issue of fact that Mr. Day, prior to taking out this policy, making application, was aware of the fact that he had psychosomatic illness?

“COURT: This is exactly what I’m finding as a matter of fact, and I’m finding that based upon the testimony of Dr. Russell, specifically. That’s exactly what I’m finding. And I’m finding secondly that failure to disclose, the fact that he had been to see Dr. Russell, so that this company could have, in turn, contacted him and raised the question with the doctor, ‘What did you treat him for?’ is a material matter upon which this company might well not have insured this man, and I can certainly see why they would consider it to be material, and to that extent I don’t think the recovery should be had. I don’t think it would be right. I don't think it would be equitable or just in this case.”

We concur with the Court’s finding of fact.

In addition to the Plaintiff’s falsification of his application for insurance as to his health he also falsified his application as to his monthly earnings and as to other insurance coverage.

In the application the Plaintiff stated that he had a monthly income of $1,200.00, but the proof shows that his income was approximately $500.00 per month.

The application asked what other insurance he had which would pay “monthly loss of time benefits.” He failed to list any. The proof shows that he had two policies in force which would pay him $450.00 per month.

Mr. Charles Burke, who is the senior underwriter in the Southeast for the Defendant, testified as to the importance of knowing the correct income of an insured and the amount of additional insurance he may have. He testified that it was important not to overinsure a person; that his company limited the total insurance coverage to 75% of the insured’s income to avoid making disability benefits more profitable than working.

The Plaintiff originally applied for $800.00 per month benefits, but after the Defendant Company received a report from the company it employed to make a routine check on the Plaintiff, it reduced the coverage to $500.00 per month.

Mr. Burke testified that had the Plaintiff disclosed on his application that he had other insurance which would pay him $450.00 per month, the Defendant would not have written the policy.

The proof shows that in the policy owner’s report of disability, which was dated January 13, 1973, the Plaintiff stated that he did not have disability insurance with any other company when, in fact, he did have with two other companies.

This falsification has no bearing on the validity of the policy in question, but lends credence to the insistence of the Defendant that the misrepresentations by the Plaintiff were made with actual intent to deceive.

In the case of Sloop v. Mutual of Omaha Insurance Company, 55 Tenn.App. 656, 404 S.W.2d 265, 268, this court, speaking through Judge Cooper, quoted with approval:

“ ‘It is the duty of the insured when he signs an application or accepts the policy, if he knows or has any reason or ground to believe that he has any disease or is in unsound health, * * * [to] make a fair disclosure of the facts to the insurer. Knights of Pythias v. Rosen field [Rosen-feld] 92 Tenn. 508, 22 S.W. [204] 504; Harris v. [Security Mut. Life] Insurance Co., 130 Tenn. 325, 170 S.W. 474 [L.R.A. 1915C, 153].’ Norvill v. Mutual Benefit Health & Accident Ass’n, 14 Tenn.App. 396; Little v. Washington National Ins. Co., 34 Tenn.App. 593, 241 S.W.2d 838.
“However, ‘[n]o written or oral misrepresentation or warranty therein made in the negotiations of a contract or policy of insurance, or in the application therefor, by the assured or in his behalf, shall be deemed material or defeat or void the policy or prevent its attaching, unless such misrepresentation or warranty is made with actual intent to deceive, or unless the matter represented increase the risk of loss.’ T.C.A. 56-1103.
“Under this statute, ‘[a]ny misrepresentation which naturally and reasonably influences the judgment of the insurer in making the contract is a misrepresentation that “increases the risk of loss” with-
in the meaning of the statute.’ Little v. Washington Nat. Ins. Co., supra. And when it has been determined that the answers contained in the application were untrue it becomes a question of law for the court as to whether such misrepresentations materially ‘increase the risk of loss’ within the meaning of the statute. Little v. Washington National Ins. Co., supra; Norvill v. Mutual Benefit Health & Accident Ass’n, supra; Standard Life Ins. Co. of the South v. Strong, 19 Tenn. App. 404, 89 S.W.2d 367; National Life & Acc. Ins. Go. v. Lewis, 19 Tenn.App. 459, 89 S.W.2d 898.”

Wé think the proof not only supports the fact that the misrepresentations increased the risk of loss but also that the misrepresentations were made with the intent to deceive the Defendant.

Plaintiff’s assignments of error are overruled and the decree of the Chancellor in disallowing recovery for future benefits under the policy is affirmed.

This brings us to the Defendant’s assignment of error running to the action of the court in allowing recovery under the policy for a period of three months.

In allowing a recovery for the three-month disability but disallowing additional benefits the Chancellor rationalized that the Plaintiff was disabled as a result of the September 1 accident for a period of three months and the misrepresentations in the application had no relationship to this injury. However, he found that the disability due to psychosomatic illness predated the accident and, for this reason, denied recovery.

Although there may be logic in the rationale of the Chancellor under a given set of facts, we don’t think it is applicable in the case at bar.

It is not material to the validity of coverage whether, the disability suffered by the insured was related to the misrepresentations. Regardless of what may cause the death or disability of the insured after the issuance of a voidable policy, it has no bearing on whether or not the policy is enforceable. If the policy is obtained through fraud or misrepresentation which materially “increases the risk of loss,” it is voidable from its inception.

In the case of Brotherhood of Railroad Trainmen v. Daniels, 18 Tenn.App. 264, 75 S.W.2d 1019, the insured died from an illness other than the one he failed to disclose in his application for insurance. In passing upon the issue, the court said:

“The fact that the applicant did not die of the ailment he had had, and suppressed, is not controlling, as the defendant in error insists is the case. For, if the attacks ‘evidenced a material impairment of the applicant’s constitution’ (Harris v. Insurance Co., supra) then the warranties were material warranties, and the contract was avoided at its inception.”

Also, in the case of Mutual Life Ins. Co. v. Dibrell, 137 Tenn. 528, 536,194 S.W. 581, 583, the court, in addressing itself to this question, said:

“It cannot be that the matter misrepresented should necessarily relate to the hazard of loss by the death of the insured. Such a construction might prevent the company’s rescinding the contract because of a misrepresentation that actually induced the contract, in an action begun promptly after the making of the application and the issuance of the policy. What will not avail to ‘void the policy,’ under the statute, it seems equally will not ‘prevent its attaching,’ as a contract. We cannot adopt the harsh and radical construction that the Legislature meant to deprive the insurer of the right to rescind the policy contract for inducing fraud.”

The Defendant’s assignment of error is sustained and the decree of the Chancellor in awarding the Plaintiff a judgment for $1,500.00 is reversed and the complaint is dismissed.

The cost of this appeal, together with the cost in the Trial Court, is taxed to the Plaintiff.

PARROTT, P. J. (E.S.), and GODDARD, J., concur.


author: DWYER, Judge.

text:
    Pauline A. Turner WASHINGTON, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Oct. 1, 1975.
    Certiorari Denied by Supreme Court Feb. 9, 1976.

      Gerald F. Largen, Kingston, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, H. Kenneth Deatherage, Dist. Atty. Gen., Kingston, for defendant-in-error.
   OPINION

DWYER, Judge.

This appeal flows from a conviction of selling marijuana in excess of one half ounce, see T.C.A. 52-1432(a)(l)(F), with resulting punishment of confinement for not less than one year nor more than two years and six months plus a fine of $1,600.

The plaintiff-in-error, referred to hereafter as the defendant, was found by the trial court to be an indigent for appeal purposes.

There has been no assignment of error attacking the sufficiency of the evidence. We will, for clarity purposes, in evaluating the other assignments of error, summarize the evidence as found by our review of the record.

The defendant, in response to a telephone call, met with the state’s prosecuting witness, an undercover agent for the Tennessee Bureau of Investigation, on the evening hours of March 22, 1973, in Roane County. This meeting was arranged by a person described by the state’s witness as a “cooperative individual” and the parties met at Cas Walker’s Supermarket located on Highway 70. The agent was in his car with the “cooperative individual” when the defendant arrived in an automobile driven by a party identified as the second “cooperative individual” later identified at the trial as Johnny who had been living with the defendant. The defendant and this party got into the agent’s car and after a brief period the defendant sold the agent ten plastic sacks each containing marijuana as identified by a toxicologist testifying for the state in the total amount of one half pound for the sum of $20 an ounce.

The defendant, testifying in her own behalf, denied ever seeing the agent or having ever sold him any drugs on any date. She maintains that on the 21st of March, the date of the indictment, that she had been working in her restaurant and had a seizure on that date and did not leave her place of business until midnight. Her sister, an employee and her mother corroborated to some extent her testimony as to her whereabouts on the 21st of March.

In her first assignment of error she maintains the court erred in not allowing the agent to divulge the name of the first “cooperative individual”. She reasons the court allowed cross examination of the agent to obtain the name of the second “cooperative individual” but that the refusal to discover the identity of the first deprived her of an opportunity to subpoena this individual as a witness. She relies on Roberts v. State, Tenn.Cr.App., 489 S.W.2d 263. We agree.

The state urges there is no error because the defendant did not call the second “cooperative individual” so it may be safely assumed she would not have called the first “cooperative individual”. With this we are constrained to disagree. We do not think that the fact that she did not call this second witness nullifies her right to disclosure of the first “cooperative individual” who was a material eyewitness to the transaction. We think under the facts and circumstances found in this record, that the desirability of calling the first “cooperative individual” as a witness or of having an opportunity to attempt to interview him was, in the interest of fair play and under our law, a matter for the defendant to determine rather than as here the state, see Roviaro v. United States, 353 U.S. 53, 64, 77 S.Ct. 623, 629, 1 L.Ed.2d 639. We are constrained in arriving at this decision in view of the writer being the dissenter in Roberts v. State, supra. However, we think our holding will not disturb any public policy by discouraging informers or citizens from supplying police with important information to curb crime. For here the state has “demolished” the cover of the informer by making him a participating witness to the crime. The non-disclosure under these circumstances impedes the purpose of the trial court’s ascertainment of the truth. See Ea-son v. State, 65 Tenn. 431,436. This assignment is sustained. We accordingly reverse the judgment and remand this record for a new trial.

She next asserts it was error for the trial court not to direct a verdict of not guilty when the testimony of the agent revealed the date of sale having occurred on March 22, when the indictment date alleged it was March 21. She reasons that his testimony at the first trial, wherein she was convicted and the trial court granted a new trial, was that the offense occurred on the 21st. This discrepancy in testimony embarrassed her in that her alibi witnesses were to establish her presence on the 21st.

It is not essential to allege a date unless the date itself is the essence of the offense, i. e., offense committed against laws passed for preservation of the Sabbath, or unless time is of the essence to bring the offense within operation of new or amended statutes or that the prosecution was commenced before tolling of the statute of limitations, none of which is the ease here, see State ex rel. Tines v. Bomar, 205 Tenn. 572, 577, 329 S.W.2d 813, cert, denied, 363 U.S. 822, 80 S.Ct. 1262, 4 L.Ed.2d 1519.

Additionally, we note no issue was made of this conflict in dates as testified by the witness on cross examination. In other words, we think this discrepancy would have been fruitful grounds for her to discredit his testimony before the jury. The defendant slept on her rights in not making a viable issue for the jury as to the agent’s credibility. We do not think that, where she alleges the agent’s testimony at the first trial was that the occurrence was on the 21st and at the second trial the 22nd, she should save this discrepancy for a directed verdict, see State v. Glover, La., 304 So.2d 348. There is, we think, no error here under these circumstances.

She next assigns that the attorney general’s comment during his cross examination of the agent to the effect that defendant knew the identity of the “cooperative individual” with the agent was improper. The record does not reflect this comment. It reflects that there was “too much noise” so that the testimony was not recorded. She also contends it was improper argument for the attorney general to comment that the defendant knew the identity of the people accompanying the agent. The defendant reasons that the record fails to reflect his objection and these objections were obscured by the state reporter and the defendant must accept what is typed up. We disagree and find no error here. We think the defendant had an opportunity to present this to the trial court for correction prior to approving the bill of exceptions. We have reviewed the argument and feel the attorney general arguing to the jury that defendant knew the second “cooperative individual” was a fair comment on the evidence in the record. This assignment is overruled.

Lastly, she contends the court erred in not furnishing the transcript of the first trial which would substantiate her allegation as to the agent’s changing testimony on the dates the crime occurred. In view of our finding the prior assignment as to the date discrepancy without merit, we find no error here. Even though there is no direct evidence in the record to support the fact of date discrepancy, we think in the absence of contesting it by the attorney general, it may be safely assumed such was the case. This assignment is overruled.

This record, in view of our finding merit in the assignment as to the non-disclosure of the witness, is remanded for a new trial.

WALKER, P. J., and DICK JERMAN, Special Judge, concur.