author: DONNELLY, Judge.

text:
    WIETHOP TRUCK SALES, INC., et al., Respondents, v. James R. SPRADLING, Director of Revenue, Appellant.
    No. 59211.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1976.
    John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., for appellant.
    Joseph J. Russell, Limbaugh, Limbaugh & Russell, Walter S. Drusch, Jr., Spradling, Drusch & Dillard, Cape Girardeau, for respondents.
   DONNELLY, Judge.

Respondents are in the business of selling trucks and truck trailers to be used for freight hauling. Respondent Wiethop Truck Sales, Inc. has its business in Cape Girardeau. Respondent Harris Truck and Trailer Sales, Inc. has places of business in both Cape Girardeau and Joplin. Both cities have adopted a 1% city sales tax pursuant to §§ 94.500-94.570, RSMo 1969.

The Department of Revenue assessed additional Cape Girardeau city sales taxes against Wiethop for $3,079.91, plus interest of $482.92, for a total assessment of $3,562.83 on sales of truck trailers. An additional assessment was made against Harris for Cape Girardeau city sales tax of $21,854.39, plus penalty of $2,185.44 and interest of $2,352.60, and Joplin city sales tax of $1,275.50 with a penalty of $127.55 and interest of $128.52, for a total assessment of $27,924.00, on sales of truck trailers.

Respondents filed petitions for reassessment. Appellant held that the assessments were correct. Respondents then filed a joint petition for review in the Circuit Court of Cape Girardeau County. The Circuit Court reversed the administrative decision and held that Respondents did not have a duty to collect or pay city sales tax on truck trailer sales. An appeal was then taken to this Court. We have jurisdiction because the case involves construction of the revenue laws of this state. Mo.Const., Art. V, § 3.

The question presented is whether Respondents are required to collect city sales tax on truck trailers which they sell.

We make the following preliminary observations:

(1) Section 94.510, RSMo 1969, a part of the City Sales Tax Act (§§ 94.500-94.570, RSMo 1969), authorizes incorporated cities, towns or villages with a population of five hundred or more to impose a sales tax “on the receipts from the sale at retail of all tangible personal property * * * within any city adopting such tax * *

(2) Section 94.540, RSMo 1969, provides generally that “all retail sales shall be deemed to be consummated at the place of business of the retailer * * *.”

(3) Section 94.540, supra, also provides that “[a]ll applicable provisions contained in sections 144.010 to 144.510, RSMo, governing the state sales tax shall apply to the collection of the tax imposed by sections 94.500 to 94.570, except as modified in sections 94.500 to 94.570 *

(4)Section 144.070, RSMo 1969, provides that the collection of Missouri sales tax on sales of “any new or used motor vehicle or trailer” shall be made by the state Director of Revenue at the time of application for an official certificate of title and registration.

We conclude from the above that § 144.070, supra, is incorporated by reference into the City Sales Tax Act and that the collection of a city sales tax on the sale of “any new or used motor vehicle or trailer” shall be made by the Director of Revenue, except as modified by the City Sales Tax Act.

Appellant contends § 94.560, RSMo 1969, modifies § 144.070, supra, and imposes on the seller the duty of collection of a city sales tax on the sale of any new or used trailer. Section 94.560, supra, reads as follows:

“City sales taxes imposed pursuant to sections 94.500 to 94.570 on the purchase and sale of motor vehicles shall not be collected and remitted by the seller, but shall be collected by the director of revenue at the time application is made for a certificate of title, if the address of the applicant is within a city imposing a city sales tax. The amounts so collected shall be deposited in the city sales tax trust fund to the credit of the proper cities less the two percent collection cost.”

Appellant concedes that the incorporation of § 144.070 by reference into the City Sales Tax Act, without more, would require the purchaser of a motor vehicle or trailer to pay the city sales tax imposed on the purchase to the Director of Revenue. He asserts, however, that since § 94.560 only mentions motor vehicles, “it must necessarily exclude other tangible personal property under the doctrine of ‘expressio unius est exclusio alterius.’ ”

We decline to apply the “doctrine” in this case. The statutes in question here are taxing statutes and it is well established that such statutes must be strictly construed in favor of the taxpayer and against the taxing authority. State ex rel. Ford Motor Co. v. Gehner, 325 Mo. 24, 29, 27 S.W.2d 1, 3 (banc 1930). In our opinion, § 94.560, supra, does not, either expressly or by plain implication, modify § 144.070, supra, so as to shift the burden of collecting city sales taxes on trailers from the Director of Revenue to sellers of trailers. Appellant’s assertion is without merit.

Appellant also asserts that if “§ 144.070 is to stand unchanged, then § 94.560 is meaningless tautology.” We do not agree. The words “if the address of the applicant is within a city imposing a city sales tax” constitute purposeful language in § 94.560. Respondents suggest the effect of this language is that if a buyer of a motor vehicle “happens to reside in a Missouri city which does not impose city sales tax, no city sales tax is due,” and if a buyer of a motor vehicle “happens to reside in a Missouri city which does impose a city sales tax, the tax of that city is due.”

Respondents’ interpretation may, or may not, be appropriate. The effect of the words “if the address of the applicant is within a city imposing a city sales tax” is not an issue on this appeal. We need not, and will not, undertake to interpret this language at this time. It is enough to recognize that it is meaningful language.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carol Ellis MURRAY, Petitioner-Respondent, v. Kenneth Dale MURRAY, Appellant.
    No. 37076.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 13, 1976.
    Motion for Rehearing or Transfer to Court En Banc or Transfer to Supreme Court Denied July 8, 1976.

      Gene Pepka, Vatterott, Shaffar, Dolan & Pepka, St. Ann, for appellant.
    Alan L. Lake, William G. O’Donnell, Clayton, for petitioner-respondent.
   PER CURIAM.

After eighteen years, the marriage of Carol Ellis Murray and Kenneth Dale Murray was terminated by a decree of dissolution entered by the Circuit Court of the City of St. Louis. Carol Murray was awarded custody of the three children, $54.00 per week child support, $50.00 per week maintenance, and the marital home valued at approximately $18,500, on which was still owed $5,500.00. The respondent in the dissolution case, Kenneth Murray, appeals contending that the trial court abused its discretion in making its award for the reason that “the court did not consider the ability of the appellant to pay.”

Our review is governed by Rule 73.01(3), which directs us to review the case upon both the law and the evidence, giving due regard to the trial court to judge the credibility of the witnesses. If we believe that the trial court erred in its decree, it is our duty to enter such judgment as the trial court should have entered. In re Marriage of Powers, 527 S.W.2d 949, 954 (Mo.App.1975). It is our duty to review all of the evidence and reach our own independent conclusions as to the proper judgment to be entered. In re Marriage of Powers, supra, 527 S.W.2d at 954. But the determination of a division of property and the financial obligations of the parties is a matter resting in the sound discretion of the trial court, and we review the record only to determine whether or not that discretion was abused. Fugate v. Fugate, 510 S.W.2d 705, 706-707 (Mo.App.1974).

We have read the entire record, the briefs of the parties and the authorities relied upon and conclude that (1) the decree rendered by the trial court was not erroneous, (2) the trial court acted within its discretion in a difficult situation between the parties of limited means, (3) the court considered the ability of the appellant to pay, and (4) a lengthy opinion would have no precedential value; hence, we affirm the judgment.

Although an award should not be imposed beyond the husband’s ability to pay, McM. v. McM., 506 S.W.2d 14, 16 (Mo.App.1974), there are other factors to be taken into consideration under the Dissolution Law §§ 452.340(6)- [child support]; 452.-330-1(3) [marital property]; 452.335-2(6) [maintenance]. “The reasonableness of allowances ... is determined by the financial condition of the husband-father at the time the award is made,” but “both his present and past earnings are evidence of such capacity.” Page v. Page, 516 S.W.2d 537, 540 (Mo.App.1974). The determination of the amounts awarded for support and maintenance and the division of marital property rests in the sound discretion of the trial court, and that discretion is not to be set aside unless abused. In re Marriage of Heddy, 535 S.W.2d 276 (Mo.App.1976); Larison v. Larison, 524 S.W.2d 159, 161 (Mo.App.1975); Biggs v. Biggs, 397 S.W.2d 337, 343 (Mo.App.1965). “Such an abuse of discretion must be based upon an erroneous finding and judgment which is clearly against and contrary to facts or the circumstances before the court . .” Fugate v. Fugate, supra, 510 S.W.2d at 707. We find no abuse of discretion here. Rule 84.16(b).

The judgment is affirmed.

All the Judges concur.

      . The husband at the time of trial earned $200.00 per week net. From that was deducted $35.00 a week for a credit union loan. He was ordered by the decree to pay $54.00 per week for support and $50.00 per week maintenance, leaving $61.00 per week.
      Mrs. Murray, under the decree, is to receive $50.00 per week maintenance, $54.00 per week for support, and she received $53.00 per month from welfare. She received the home, but she is responsible to pay $75.00 per month on the debt on the home. The wife, therefore, excluding child support, receives $62.33 per week.


author: SWOFFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Walter D. KNABE, Appellant.
    No. KCD 27761.
    Missouri Court of Appeals, Kansas City District.
    June 1, 1976.
    Rehearing Denied July 6, 1976.

      L. R. Magee, Hines & Magee, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

The appellant (hereafter defendant) was charged with the felony of stealing property over the value of Fifty Dollars, Section 560.156 RSMo 1969. After a jury trial, he was found guilty, and in accordance with such verdict, was thereafter sentenced to six (6) months in the Jackson County Jail and a fine of Five Hundred ($500.00) Dollars. After an unavailing motion for a new trial, this appeal followed in due course.

The defendant attempts to raise two points on this appeal. He states, first, that the court erred

“in overruling defendant’s motion for directed verdict of acquittal for the reason that the state failed to prove beyond a reasonable doubt all of the elements of the crime of which the defendant was accused.”

Secondly, he states that the court erred

“in giving Instruction No. 6 to the jury for there was no evidence to support such instruction.”

This instruction is the standard accomplice or accessory instruction as formulated in MAI-CR 2.10.

Even a casual reading of these “Points Relied On” leads to the conclusion that they fall far short of the requirements of Rule 84.04(d), made applicable to criminal appeals by Rule 28.18. However, consistent with this court’s past indulgent willingness to seek out and glean from the arguments in the briefs and the whole record what the real points on appeal are, without benefit of the obligatory assistance of counsel, these points will be ruled. It should be reiterated again, however, that the bar cannot and should not expect this indulgence to long continue. Work load, manpower and time must dictate its discontinuance and the imminent application of an inflexible requirement that the rules on appeal be given strict application.

The defendant and two other persons were charged with stealing certain property of the value of $1,484.00 on June 5, 1974, in Jackson County, Missouri, from an apartment construction site at 122nd Street and Holmes, which property was owned by Don Alpert Construction Company. The defendant’s claims of error under his first point (and commingled in his second point) may be fairly stated that the state failed to make a case against him because there was no proof that the Alpert property was ever “stolen” in that it was never removed from its possession or control, and that the state likewise failed to prove the defendant’s physical presence at the scene of the theft. Resolution of these claims requires a review of the evidence in the light most favorable to the state and affording it all favorable inferences to be drawn therefrom, and evidence and inferences contrary thereto must be disregarded. State v. Stapleton, 518 S.W.2d 292, 296[1] (Mo. banc 1975).

At about 6:00 p. m. on June 5, 1974, Sergeant Closterman of the Crimes Against Property Unit of the Kansas City, Missouri police department received a call from a Federal Alcohol, Tobacco, Firearms Agent, Virgil Walker, that he had received a tip that a theft was going to occur later that evening and asked Closterman to assign some police officers to conduct surveillance at 71 Highway and Bannister Road. Sergeant Closterman went to that location and met Walker, who told him Thomas Butler, Walter Knabe, and Walter Dewayne Knabe (the defendant) were planning “a score” and were going to use a rental van truck. Thomas Butler lived in the vicinity of this location and around 7:45 or 8:00 p. m., a large van-type truck pulled into the Butler driveway. A little later, the van pulled out of the driveway and Closterman testified that Walter Knabe, Thomas Butler and the defendant were in the truck, and Closter-man thought the defendant was driving. Thereupon, Closterman ordered a police helicopter, piloted by Fred W. Amos, to conduct surveillance of the truck.

From the air, Officer Amos observed the van truck leave the Butler residence and followed it on various moves to the construction site here involved, where it stopped for a time, then, after other driving in the area, returned to the construction site. At no time did Officer Amos see anyone get out of the truck. In the meantime, two officers in a patrol car took up surveillance from the ground; spotted the van truck, and followed it to the construction site. Neither officer saw anyone get out of the truck.

One Clarence Klapmeyer, a resident of the neighborhood, who had been asked by the construction company “to keep an eye on things” at the location, had observed a man in T-shirt and blue jeans walking around the construction site. Later, he saw a U-Haul van when it came to the site the first time, and when it returned, he called the police. Response was made to this call by Patrolman Gary M. Smith, who had no knowledge of the occurrences above related. He picked up Klapmeyer and the two of them drove to the construction site. As they approached a Tip-Top Plumbing & Heating Company trailer located there, Patrolman Smith saw three men jump out from between the van truck and the TipTop trailer and run, and he pursued them on foot. The trio split and Smith caught two of them about 200 yards from the site. These two were Thomas Butler and Walter O. Knabe, the defendant’s father. Smith was unable to catch the third man.

In the meantime, other officers had arrived at the scene and an investigation revealed that the Tip-Top trailer had been entered and the items of property (owned by Alpert and in the Tip-Top trailer) which form the corpus delecti of the crime of which the defendant stands convicted, had been transferred to the U-Haul van truck which had been under surveillance. The officers also found a pair of bolt cutters under the front seat of the van truck and a padlock on the ground near the van which appeared to have been cut with a bolt cutter. In the glove compartment of the van officers found a rental agreement signed by the defendant for the U-Haul van and subsequent investigation also revealed that defendant had rented a pair of bolt cutters at the same time he rented the van.

While these events occurred, Detective Adamson of the Kansas City Police Department had gone to the home of Tommy Butler at 9601 Spruce (with whom he was acquainted) to question him about “another incident at another location”. He found no one at home, but observed a 1964 Chevrolet in front of the house. A check of the license revealed the car was registered in the name of Walter Dewayne Knabe, the defendant. As he was leaving the Butler house, he received a radio call to proceed to the construction site here involved. Upon arrival, he found Tommy Butler and Walter 0. Knabe in custody of other officers.

Later on the evening of June 5, 1974, the defendant was arrested by Officer Gary Russell responding to a radio pickup order, about two miles from the construction site. While no roads directly connected the site with the place of his arrest, it was shown that a railroad right-of-way runs from the construction site to about 100 yards from the place of arrest.

The defendant did not testify, but his father testified in his behalf, and on direct examination stated that his son had rented the truck at the request of Tommy Butler; that the defendant left Butler’s home with him and Butler in the van; that a discussion was had about stealing from the construction site; that the defendant decided “he didn’t want to get involved”; that therefore, defendant was let out of the van at Minor Park; and, that he and Butler then proceeded to the construction site where his arrest occurred. It should be noted that on cross-examination, Walter 0. Knabe stated that he and Butler did not discuss stealing from the construction site until after his son, the defendant, left the van at Minor Park. Also, at the time the father had entered a guilty plea to the charges against him arising from this occurrence, he had told the court that he had been drinking on the evening of June 5, 1974. He further expounded upon this at the trial, that he had been drinking all day and was drunk, but “knew what was happening”.

The state sustained its burden of proof that the property here involved was stolen. The statute under which defendant was charged defines the term “steal”, Section 560.156, 1(2) RSMo 1969, as:

“to appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining, using, transferring, concealing or retaining possession of his property.”

The basic elements of this crime have been defined to mean the felonious taking and carrying away of the property of another. State v. Eye, 415 S.W.2d 729, 730[2] (Mo.1967). The element of “taking” is complete at the moment the offender wrongfully assumes complete dominion over the property of another inconsistent with the owner’s rights. The duration of the dominion is immaterial. 52A C.J.S. Larceny § 6, p. 424 et seq. The second element of “carrying away” has become known in the lexicon of the law as “asportation” and occurs once the property “taken” has been moved, however slightly. In order for the taking or asportation of the property to be established the state need not prove that the same was removed from the premises of the owner. In other words, the theft need not be successful to establish the elements of the crime. 52A C.J.S. Larceny § 6, p. 426 et seq. Thus, in State v. Smith, 342 S.W.2d 940, 942[4] (Mo.1961), the property had been moved from a storage area and loaded onto a cart near an outside entrance; in State v. Burnley, 480 S.W.2d 881, 883[4] (Mo.1972), metal ingots were found within the owner’s fence and on its property but outside the building where they were kept; in State v. Perryman, 487 S.W.2d 515, 519[9, 10] (Mo.1972), the defendant was caught upon the owner’s premises with the money from the victim’s cash box on his person; and in State v. Ruyle, 318 S.W.2d 218, 220-221[3, 4] (Mo.1958), a safe was moved 10 or 12 feet from its usual position. In each of these cases, the court held that the state had met its burden of proof to establish a taking and carrying away and thus the charge of stealing.

In the case at bar, the state’s evidence established without dispute that the property alleged to have been stolen had been moved from the construction site trailer to the U-Haul van truck, even though it had not been successfully taken from the premises before the senior Knabe and Butler were apprehended. The elements required by Section 560.156, 1(2) RSMo 1969, supra, and the above decisions, to justify submission of a charge of stealing were established by the state’s evidence.

The other facet of defendant’s position, as gleaned from the argument portion of his brief, is somewhat obscure and difficult to follow. A fair conclusion of this argument is that the state failed to prove his physical presence at the scene of the crime and therefore the court erred in giving Instruction No. 6 (MAI-CR 2.10), the instruction as to the responsibility of a person as “aider or encourager” in the commission of a crime.

It is true that the state’s evidence as to the defendant’s actual physical presence at the scene of the stealing was circumstantial, and therefore must be viewed by an appellate court with more stringent scrutiny in determining the sufficiency of the state’s evidence. State v. Stapleton, supra, 518 S.W.2d at l.c. 296[1]. Such circumstantial evidence in this case was strong and convincing.

Detective Closterman having been advised by the federal agent that the defendant, his father and Butler were planning a theft, had the van under surveillance at the time it left the Butler premises. He testified that the three men left the premises in the van truck. Officer Amos took up the surveillance from the air and followed the van during its maneuvers to the site of the crime and testified that no one left the truck. When Officer Smith came to the construction site and to the place where the van truck was located, he saw three men flee the scene and apprehended the elder Knabe and Butler. The defendant was thereafter apprehended on foot at a point directly connected to the scene of the crime by a railroad right-of-way, a natural and available escape route. Additionally, the state proved that during this period of time, the defendant’s private automobile was parked at Butler’s unoccupied house. No evidence appears in the record that any person other than the two Knabes and Butler had any connection with the matter.

The elder Knabe did testify that his son was let out of the truck at Minor Park before the theft because the defendant “didn’t want to get involved” but such testimony was in conflict with that of Officer Amos, and the elder Knabe admitted he was intoxicated that evening. His credibility was, of course, for the jury. The foregoing was sufficient circumstantial evidence from which the jury could conclude that the defendant was physically present at the time of the theft, an issue of fact directly presented to them by Instruction No. 5 (MAI-CR 3.20), the “alibi” instruction requested by the defendant.

The defendant further complains, however, that there was no evidence to support the giving of Instruction No. 6, the “aider and encourager” instruction, MAI-CR 2.10. He raises no question as to the form of such instruction but only as to its applicability to the facts in this case. In this area, there was strong and convincing direct and circumstantial evidence to justify this submission. In addition to the foregoing facts, it is beyond dispute that the defendant, using funds supplied to him by Butler, leased the U-Haul van, signed the lease agreement, rented the pair of bolt cutters found under the seat thereof, and accompanied by his father delivered this equipment to the Butler residence. He was driven by Butler to the place where the leasing arrangements were made; he personally made these arrangements because Butler owed U-Haul some money and therefore could not do so himself; and, the defendant was physically in the truck (and possibly driving it) when the three men left the Butler home.

The following appears in the “Notes on Use”, accompanying MAI-CR 2.10:

“1. This instruction should be used where there is evidence (a) that defendant was an active participant in the crime or its attempt, even if he was not the principal actor, or (b) that defendant aided or encouraged other participants either before or during the crime or its attempt and was present or not * * ” (Emphasis supplied)

Aiding or encouraging is sufficiently shown where the evidence discloses any affirmative participation by the defendant. State v. Ramsey, 368 S.W.2d 413, 417[5] (Mo.1963); State v. Stockdale, 415 S.W.2d 769, 772[7] (Mo.1967); and State v. Chase, 444 S.W.2d 398, 403[8] (Mo. banc 1969).

Aside from the facts clearly permitting the inference that defendant was at the scene of the crime as heretofore discussed, his undisputed acts in providing the means whereby the crime was committed and the other circumstances of his connection therewith from the time the federal agent advised Sergeant Closterman that he had information that defendant, his father and Butler were planning the theft to the time of his arrest justified the giving of MAI-CR 2.10 and the permissible inference that he knowingly aided and encouraged it and actively participated in its perpetration at some, if not all, stages. It was not error to give Instruction No. 6, and the defendant was not prejudiced thereby.

The judgment is affirmed.

All concur.


author: BILLINGS, Chief Judge.

text:
    Ruth WEBB, d/b/a the Flamingo Lounge and the Dexter Pool Hall, Plaintiff-Appellant, v. The CITY OF DEXTER et al., Defendants-Respondents.
    No. 10184.
    Missouri Court of Appeals, Springfield District.
    June 14, 1976.
    Rehearing Denied July 6, 1976.

      Gary L. Smith, Smith & Holden, Dexter, for plaintiff-appellant.
    Paul McGhee, James E. McGhee, McGhee & McGhee, Dexter, for defendants-respondents.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Plaintiff has lodged this appeal from the trial court’s order sustaining the defendants’ motions to dismiss her multiple-count petition in which she sought to have three Dexter, Missouri, ordinances declared invalid and to enjoin the defendants from enforcement thereof.

Plaintiff’s principal point in her brief is that the trial court erred in dismissing her petition because it “stated a cause of action for which relief could be granted, which is the only issue to be determined on a Motion to Dismiss.”

Rule 84.04(d), V.A.M.R., requires a point relied on in an appellate brief to state briefly and concisely “wherein and why” the ruling of the trial court is claimed to be erroneous, with citations of authorities.

Plaintiff’s point wholly fails to advise us “wherein and why” she deems the ruling of the lower court to be erroneous. We are not required to con the pleadings or the argument portion of an appellate brief in a time-consuming effort to ascertain the “wherein and why” — Rule 84.04(d) casts this duty on appellant. Repeated warning flags have been hoisted that Rule 84.04 means what it says and compliance therewith is absolutely necessary in this era of an ever-increasing number of appeals coming to the Missouri Court of Appeals.

We decline to do in this appeal what we have done in the past, namely, give lip service to the Rule and proceed to ignore the violation and labor to dispose of the case on its merits.

Accordingly, the appeal is dismissed.

All concur.


text:
    Willard JORDAN and Vernon S. Tinsley, Plaintiffs-Appellants, v. Bobby Joe DAVIS, d/b/a Davis Truck Clinic, Defendant-Respondent.
    No. 10151.
    Missouri Court of Appeals, Springfield District.
    June 22, 1976.

      Jerry M. Merrell, Hyde, Purcell, Wilhoit & Edmundson, Poplar Bluff, for plaintiffs-appellants.
    George B. Scott, Jr., Scott & Henson, Poplar Bluff, for defendant-respondent.
    Before BILLINGS, C. J„ and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Appeal from judgment in a replevin action. Plaintiffs delivered their 1971 Ford truck to defendant to have collision damage repaired. When the repairs were completed the parties were unable to agree on the amount owed defendant, and plaintiffs brought this action to regain possession of the truck. Plaintiffs posted bond and obtained the truck by a writ of replevin prior to trial.

Plaintiffs’ petition was in conventional form. Defendant answered by general denial and asserted a counterclaim for the amount he alleged was due for repair of the truck. Following trial to the court defendant abandoned his counterclaim.

The judgment determined that, at the time the suit was filed, defendant was entitled to possession of the truck and that the value of the truck was $2100. Defendant was awarded judgment against plaintiffs and the surety on their replevin bond. The judgment ordered, “[T]hat the plaintiffs return said property taken to defendant, or in case the defendants [sic] so elects, that the defendant have and recover of the plaintiff [sic] and [their surety] the value of said property so assessed, or the sum of Two Thousand One Hundred Dollars. . . ”

The judgment in its present form cannot stand. Defendant was entitled to a common-law artisan’s lien for the amount of materials and labor expended in the repair of plaintiffs’ truck, and that lien gave him the right to retain possession of the truck. Hughes v. Aetna Ins. Co., 261 S.W.2d 942, (Mo.1953); Gale and Company v. Hooper, 323 S.W.2d 824 (Mo.App.), aff’d 330 S.W.2d 826 (Mo.1959); McCluskey v. De Long, 239 Mo.App. 1026, 198 S.W.2d 673 (1947); Bostic v. Workman, 224 Mo.App. 645, 31 S.W.2d 218 (Mo.App.1930). And, defendant was entitled to show the existence of the lien under a general denial. Monarch Loan Co. v. Anderson Transmission Service, 361 S.W.2d 328 (Mo.App.1962); McCluskey v. De Long, supra; Anthony v. Carp, 90 Mo.App. 387, 393 (1901). However, defendant did not have a right to unconditional possession of the truck, but only the right to retain possession until the lien was discharged. McCluskey v. De Long, 198 S.W.2d at 675.

Defendant’s answer did not claim the property and demand a return thereof. Consequently, the trial court was not authorized to assess the value of the vehicle nor render judgment against plaintiffs and their surety for the value so assessed. Rules 99.11, 99.12; § 533.110, RSMo 1969; Cable v. Duke, 208 Mo. 557, 106 S.W. 643 (1907); Franklin Ice Cream Corp. v. Kaufman, 170 S.W.2d 990 (Mo.App.1943). Defendant was entitled to the return of the property to hold until his lien was discharged and the trial court should in its judgment determine the amount of defendant’s special interest in the vehicle. Coonis v. Rogers, 429 S.W.2d 709 (Mo.1968); Monarch Loan Co. v. Anderson Transmission Service, 361 S.W.2d 328 (Mo.App.1962); McCluskey v. De Long, supra.

Since from the record presented we cannot determine with any certainty the amount of defendant’s lien the judgment is reversed and the cause remanded for further proceedings consistent with the views herein expressed. It is so ordered.

All concur.


author: PER CURIAM:

text:
    Debbie LOUDEN, a minor, by her Guardian, Marilyn Ingram, Claimant-Respondent, v. FIRST COMMONWEALTH LIFE INSURANCE COMPANY (formerly Richmond Life Insurance Company), Employer-Respondent, Midwestern Investment and Land Corporation, Employer, and United States Fidelity and Guaranty Company, Insurer-Appellant, Firemen’s Insurance Company of Newark, New Jersey, Insurer.
    No. 9864.
    Missouri Court of Appeals, Springfield District.
    June 23, 1976.
    Clyde R. Allemann, White, Dickey & Al-lemann, Springfield, James A. Dunn, Carthage, for claimant-respondent.
    Ronald R. McMillin, Carson, Monaco, Coil & Riley, P. C., Jefferson City, for employer-respondent.
    John R. Martin, Joplin, for insurer-appellant.
   PER CURIAM:

On April 10,1972, the Industrial Commission of Missouri made an award of workmen’s compensation in the amount of $57.00 per week for a stated period, (afterwards limited by amendment to a term of 185-3/7ths weeks), in favor of Debbie Louden, minor child of Roger K. Louden who was killed in a plane crash in Greene County while allegedly engaged in the discharge of his duties as an employee of Richmond Life Insurance Company, (now known as First Commonwealth Life Insurance Company), and Midwestern Investment and Land Corporation. An appeal from that award reached us in due course, at which time it was discovered that the Commission had failed to make a finding as to the liability of the two alleged insurers in the case, both of whom had denied coverage. Since a resolution of that issue was indispensable to a final adjudication of the claim, we were obliged to remand the case for such further proceedings as might be necessary to supply the omission. Louden v. Richmond Life Insurance Company, 497 S.W.2d 188 (Mo.App.1973). The Commission has now complied with our mandate in that particular and the ease is again before us for review.

Unfortunately, upon further examination of the record, we find it necessary to remand the case again to correct another deficiency; [to the end that all material aspects of the claim may be finally disposed of by our judgment, as the law contemplates. Swindler v. Gross, 395 S.W.2d 109, 110 (Mo.1965). The necessity arises out of this circumstance:

The amount of compensation to be awarded is, of course, an essential issue implicit in every claim where liability is denied, as it is here, and the finding of the Commission with respect to it must be based on competent evidence of the employee’s earnings. In the case at hand, however, the only evidence offered to establish the earnings of the alleged employee was a purported “Wage & Tax Statement,” (Form W-2), received by his administratrix through the mail some time after his death. It was unsolicited, unsigned, and unaccompanied by any communication or other means of determining its authenticity or accuracy beyond its own recitals. It bore the printed name and address of Richmond Life Insurance Company, as “employer,” and the typewritten name and address of the deceased, as “employee,” and purported to show that over an unspecified period in 1968 the deceased had been paid wages in the amount of $1,200.00. It was a document unvouched for by anyone, containing a recitation of purported facts touching which the offering party had no independent knowledge, offered for the purpose of establishing the truth of those facts. As such, it was hearsay in textbook example, incompetent as evidence of anything recited in it or inferable from it, and appellant’s timely and proper objection to it should have been sustained.

Since the Commission’s findings, in this particular at least, were obviously based on it, the judgment of the circuit court must be reversed with directions to remand the cause to the Commission for such further proceedings as may be deemed necessary in the circumstances.

So ordered.

All concur.


author: STONE, Presiding Judge.

text:
    Richard COCHRAN and Connie Cochran, Plaintiffs-Appellants, v. Henry DeSHAZO and Margaret DeShazo, Defendants-Respondents.
    No. 9813.
    Missouri Court of Appeals, Springfield District.
    June 24, 1976.

      R. Jack Garrett, Michael L. Shortridge, West Plains, for plaintiffs-appellants.
    John C. Holstein, Moore & Brill, West Plains, for defendants-respondents.
    Before STONE, P. J., and TITUS and FLANIGAN, JJ.
   STONE, Presiding Judge.

On February 28, 1973, plaintiffs Richard Cochran and Connie Cochran instituted an action in the Circuit Court of Howell County docketed as No. 6847 in which they sought to enjoin defendants Henry DeShazo and Margaret DeShazo from “trespassing on and harvesting and cutting the timber and crops from” land allegedly described in a so-called “Option to Buy Additional Acres”; and, after the filing and approval of an injunction bond, a temporary restraining order was entered in that case. In due time, defendants DeShazo filed (a) their answer in which they denied, inter alia, “that the parties ever agreed upon any specific property to be conveyed” and averred that the alleged option agreement not only was unenforceable for that reason but also because it was “without consideration,” and (b) their counterclaim in which they averred that, by reason of plaintiffs’ allegedly “wrongful and malicious allegations and actions” and “as a direct result of said malicious and untruthful allegations and statements,” defendants lost sales of timber from the tract wrongfully claimed by plaintiffs to have been subject to the purported option agreement, all of which had caused defendants to suffer damages of $7,500 for which they prayed judgment against plaintiffs.

On February 26, 1974, plaintiffs instituted another action against defendants in the Circuit Court of Howell County docketed as No. 7193, in which they sought, in the first count of their petition, a decree compelling specific performance of the claimed option by conveyance of the land allegedly described therein and, in the second count, damages of $10,000 said to have been sustained by reason of defendants’.failure to comply with the claimed option.

Thereafter, by agreement of counsel, the two cases were consolidated and tried to the court. The minute or docket entries reflecting filings and proceedings prior to and on the date of trial were sprinkled through the transcript on appeal filed in this court but, as the transcript approved by counsel came to us, it included nothing which even purported to be a judgment. In response to a subsequent gratuitous, unrequired and mayhap unwarranted inquiry, the following minute or docket entries were collected on a single page under the caption “Judgment” and offered to us as such:

“Now on this 13th day of June, 1974, parties in person and by counsel. Trial to Court on issues. Plaintiffs close evidence and at close of plaintiffs’ case the defendants move for a directed verdict for defendants. The motion is sustained. Verdict for defendants and against plaintiffs on both counts of plaintiffs’ petition for specific performance and damages, and on action for injunction in Case # 7193, at plaintiffs’ costs.” (Emphasis ours)

We observe parenthetically that, in legal proceedings, a “verdict” is the decision of a jury upon an issue or issues of fact submitted for their deliberation and determination [State ex rel. Vogel v. Campbell, 505 S.W.2d 54, 56-57(1) (Mo. banc 1974); State v. Casey, 338 S.W.2d 888, 891(5) (Mo.1960); Home Trust Co. v. Josephson, 339 Mo. 170, 184, 95 S.W.2d 1148, 1155(11), 105 A.L.R. 1063; Howser v. Great Western R. Co., 319 Mo. 1015, 5 S.W.2d 59, 64-65 (1928)], and that in the court-tried case at bar the filing and ruling of a “Motion for Directed Verdict” and the recordation of a “[vjerdict for defendants and against plaintiffs .” were patently inappropriate and improper. In this connection, see Rule 67.-02. (All references to rules are to Supreme Court Rules, V.A.M.R., and all statutory references are to RSMo 1969, V.A.M.S.)

In Missouri, the right of appeal is purely statutory [Rule 81.01; Dudley Special Road Dist. of Stoddard County v. Harrison, 515 S.W.2d 597, 598(1) (Mo.App.1974); United Security Ins. Co. v. Volkswagen of America, Inc., 447 S.W.2d 585, 588(1) (Mo.App.1969); Hoevelman v. Reorganized School Dist. R2 of Crawford County, 430 S.W.2d 753, 754(2) (Mo.App.1968)]; and, as relevant here, § 512.020 grants this right of appeal only to parties who may be aggrieved by “any final judgment in the case,” a judgment being defined as “the final determination of the rights of the parties in the action.” Rule 74.01; § 511.020. To be final and appealable, a judgment must dispose of all parties and all issues in the case and must leave nothing for further determination. Elliott v. Harris, 423 S.W.2d 831, 832(1) (Mo. banc 1968); New Age Federal Savings and Loan Ass’n v. Miller, 461 S.W.2d 876, 878-879 (Mo.1970).

Furthermore, a final judgment “must purport to be the actual and absolute sentence of the law, as distinguished from a mere finding that one of the parties is entitled to a judgment” [1 Black on Judgments (2nd Ed.) § 3,1. c. 8; State ex rel. St. Louis, K. & N. W. Ry. Co. v. Klein, 140 Mo. 502, 510, 41 S.W. 895, 897; Freeman v. McCrite, 165 Mo.App. 1, 4, 147 S.W. 1102, 1103(2); State v. French, 118 Mo.App. 15, 21, 93 S.W. 295, 297], and “‘[t]he mere ruling, decision or opinion of the court, no judgment or final order being entered in accordance therewith, does not have the effect of a judgment, and is not re viewable by appeal . . . McCoy v. Simpson, 344 Mo. 215, 217, 125 S.W.2d 833, 834(1) (1939), and cases there collected. See City of St. Louis v. Pope, 68 S.W.2d 805 (Mo. banc 1934).

In the case at bar, the minute or docket entries in the post-transcript paper supplied to us by the circuit clerk were not transmogrified into a final judgment by being cognominated collectively as a “Judgment” in the caption of that paper, and such entries do not constitute a final judgment from which an appeal might be taken. Williams v. Williams, supra, 480 S.W.2d at 527(3); City of Sikeston v. Missouri Utilities Co., 526 S.W.2d 401 (Mo.App.1975); State v. Henderson, 493 S.W.2d 31 (Mo.App.1973).

Moreover, those minute or docket entries neither expressly nor impliedly disposed of the pending counterclaim of defendants, who prevailed on plaintiffs’ alleged causes of action, and accordingly that counterclaim remains pending and undetermined. Thus, even if (contrary to our recorded holding) the collection of minute or docket entries were regarded as a “judgment,” those entries could not constitute a final and appealable judgment because they did not dispose of all parties and all issues in the ease. Collier v. Smith, 292 S.W.2d 627, 629-630(1-3) (Mo.App.1956); Ray Nolting Oldsmobile Co. v. 66 Watson Development Co., 518 S.W.2d 167, 169(1) (Mo.App.1974); L & L Leasing Co. v. Asher, 440 S.W.2d 181, 182(4) (Mo.App.1969).

Plaintiffs’ appeal is dismissed.

TITUS and FLANIGAN, JJ., concur.


author: HENRY, Justice.

text:
    BISHOP BAKING COMPANY, INC., Appellant, v. Lura R. FORGEY, Appellee.
    Supreme Court of Tennessee.
    June 7, 1976.
    Mayo L. Mashburn, Bell, Painter, McMur-ray, Callaway, Brown & Mashburn, Cleveland, for appellant.
    Gene Sinor, Cleveland, for appellee.
   OPINION

HENRY, Justice.

To the extent that it seeks permanent partial disability benefits, this is an utterly frivolous workmen’s compensation action which should have been dismissed, in this respect, in the trial court on the basis of there not being a glimmer, spark, scintilla or iota of supporting evidence.

I.

Compensation was claimed on the basis of an injury resulting from lifting a tray of cookies from a conveyor belt.

Suit was instituted on 15 December 1973 and was set for trial on 9 May 1974. An order was entered nunc pro tunc on 12 July 1974, reciting its rendition on 7 May 1974, and removing the case from the trial docket and continuing it until the next term of court “in order for the Plaintiff to take required medical proof.” (Emphasis supplied). The case was actually heard, however, on 11 June 1974.

Upon the hearing the plaintiff was the sole witness in support of the claim. After the close of the proof, the following colloquy ensued between the trial judge and counsel:

The Court: Do you have any medical proof?
Mr. Sinor: No, I do not, your Honor.
The Court: Are you here for temporary or—
Mr. Sinor: Just temporary only, your Honor. While I feel that there’s permanent disability, permanent partial, we have no proof of it.

Counsel went on to advise the court that if the court found that she was entitled to receive treatment, she could be sent to a doctor of the court’s choice for treatment or examination and the permanent partial could be determined later. After an extended colloquy between the court and counsel, the court agreed to look over two doctors’ statements and to determine whether to order that medical depositions be taken. The court advised counsel:

I’ll let you know my decision this morning.

Four months and six days later the trial judge put down an order sua sponte ordering claimant to submit to an examination before Dr. George W. Shelton, a Chattanooga physician, for examination and evaluation, with directions to the doctor “to report his findings and opinions . . . directly to this Court . . .”

Dr. Shelton reported on 2 December 1974. Two months and twenty-one days later (Feb. 21,1975) the Chancellor handed down a decision in open court which was the subject of an order entered seven months and twenty-four days later (15 Oct. 1975).

From the above narration it will be evident that from the date of the trial (11 June 1974) until the entry of final decree (15 Oct. 1975) a total of sixteen months elapsed. From the date of the rendition of the doctor’s report (2 December 1974) until the final decree over ten months elapsed.

The policy of the law in compensation cases requires a speedy trial. Stovall v. General Shoe Corp., 204 Tenn. 358, 321 S.W.2d 559 (1959). Indeed, § 50-1018, T.C.A. requires that compensation cases “be expedited by (a) giving all such cases priority over all other cases on the trial docket . other than cases involving state revenue; . . . ”

II.

The Chancellor’s decision, based obviously upon Dr. Shelton’s letter report of 2 December 1974 was, to the effect and to the extent here, pertinent, that claimant had sustained a five percent (5%) permanent partial disability to the body as a whole.

We reiterate, this was on the basis of the presentation of medical testimony, by letter, and not under oath. Sec. 50-1004, T.C.A. affords clear authority for a trial judge, on his own motion, to “appoint a neutral physician ... to make an examination of the injured person and report his findings to the court.”

This wholesome provision in the Compensation Law was designed to protect the mutual interests of parties litigant in doubtful or marginal cases, or those wherein the medical testimony was in strong eon-flict, by enabling the trial judge to procure the counsel of a qualified and neutral physician, as an aid to the further procedural disposition of the case. It was never intended that such reports so obtained would be admissible in evidence, per se. Obviously to make such a report admissible under the orderly rules of trial procedure and the accepted rules of evidence, it must be stipulated by the parties, or the matter contained therein must be presented by the medical witness in open court or by deposition, with full opportunity for counsel to examine and cross-examine.

However, assuming arguendo, the admissibility of the doctor’s report, it was totally insufficient to establish the claim. He stated, in pertinent part:

At this time this patient still has some subjective compláints as described with no objective signs to indicate that she might have any permanent disability from her alleged injuries. (Emphasis supplied).

Thus, the present posture of the case is that it is unsupported by any medical testimony, as is required in all but the most obvious cases. Floyd v. Tennessee Dickel Distilling Co., 225 Tenn. 65, 463 S.W.2d 684 (1971).

Particularly significant, is another low back case, Security Ins. Co. v. Hughes, 529 S.W.2d 719 (Tenn.1975), relating to the requirement that in cases of this nature there be expert medical testimony.

III.

The calendar of this Court is clogged with workmen’s compensation cases. In many instances the appeals are wholly frivolous. In others the claims are frivolous and reach this level of review because they are improvidently decided in the lower court. It is true that the Workmen’s Compensation Law is to be liberally construed in order to accomplish its intended purposes, but, it is not a social welfare statute, Smith v. Tennessee Furniture Industries, 212 Tenn. 291, 369 S.W.2d 721 (1963), nor may the sympathies of the Court control its determination. Hughes v. Globe Co., 224 Tenn. 208, 452 S.W.2d 859 (1970).

It is of significance in this case that counsel for the claimant did not file a reply brief in this Court, nor present oral argument when the case was set for hearing.

We have statutory authority to award damages, costs, interest and expenses, to include attorneys fees, in cases wherein the appeal is frivolous or taken solely for delay. Sec. 27-124, T.C.A. This action may be taken by the Court on its own motion, or upon the motion of the aggrieved party. Unfortunately we have neither the statutory nor the inherent power to take similar action in a case wherein a bona fide appeal is taken from a frivolous suit improvidently decided.

Reversed.

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


author: COOPER, Chief Justice.

text:
    BITUMINOUS CASUALTY CORPORATION, Appellant, v. Edd LEWIS, Appellee.
    Supreme Court of Tennessee.
    June 21, 1976.

      O’Neil, Parker & Williamson, Knoxville, for appellant.
    Ray A. Stegall, Knoxville, Earl Cole, Barbourville, Gault & Stegall, Knoxville, for appellee.
    Milton P. Rice, Special Counsel, Nashville, on amicus curiae brief for the National Life and Accident Insurance Company; Robins H. Ledyard, General Counsel, Nashville, of counsel.
   COOPER, Chief Justice.

OPINION

This is a workmen’s compensation action in which the appellee was awarded benefits for permanent total disability resulting from pneumoconiosis, an occupational disease listed in T.C.A. section 50-1101. Appellant insists there is no evidence that appellee’s disease was caused by his employment with appellant’s insured, Kopper Glo Fuels, Inc. Appellant also insists that ap-pellee failed to give notice of disability as required by statute, and that appellee’s claim for benefits is barred by the statutory limitation on claims for occupational diseases.

Section 50-1106, T.C.A. provides that: “When an employee has an occupational disease that is covered by the Workmen’s Compensation Law, the employer in whose employment he was last injuriously exposed to the hazards of the disease, and the employer’s insurance carrier, if any, at the time of the exposure, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.” (Emphasis supplied.)

As was pointed out in Tennessee Tufting Co. v. Potter, 206 Tenn. 620, 337 S.W.2d 601 (1960),

“The purpose of the statute was to fix a definite time for determining which employer and insurer is liable, and to avoid inquiry as to when the disease, its cause or causes, or the resulting temporary disability, came into existence, which are often questions too difficult, uncertain, or speculative, to admit of satisfactory proof.”

Appellee, now fifty-two years of age, worked as a coal miner in underground mines for most of his adult life. His last employer was Kopper Glo, where he worked on the surface at the tipple near the coal crusher. According to appellee, his work with Kopper Glo exposed him to a continual and heavy concentration of coal dust “boiling” up from the crusher. Appellee quit his job on April 1, 1969, because he was “smothering” and could not hold out to do a day’s work at the tipple. Since quitting Kopper Glo, appellee has not been exposed to coal dust.

Appellee was treated by Dr. Joseph Fox for a mental aberration or depression in July, 1972.

On December 20, 1972, appellee was examined generally by Dr. Fox and learned at that time that he had a chronic obstructive lung disease, probably due to exposure to coal dust. Dr. Fox filed a report of his examination with the Division of Disability Determination in Frankfort, Kentucky, in support of a claim by appellee for “black lung” disability benefits. The claim was denied.

In September, 1973, appellee was examined by Dr. B. H. Wells and Dr. Boyce E. Jones, both of whom found that appellee had coal worker’s pneumoconiosis and from his work history, that he had it at the time he terminated his employment at Kopper Glo. The doctors further testified that the disease was progressive, and that the appel-lee was, at the time of their examinations, totally and permanently disabled.

Appellee notified Kopper Glo of the work-connected disability by letter dated September 25,1973, and further gave notice that he was claiming workmen’s compensation benefits from appellant’s insured. The action to recover benefits was filed on September 5, 1974.

The chancellor found, and there is material evidence to support his findings, that appellee is totally and permanently disabled from coal workers’ nneumoconiosis and that he knew or should have known of his disability and its cause on December 20, 1972, when he was examined by Dr. Fox. The chancellor further found that appellee was last injuriously exposed to the hazards of the disease when he was working for Kop-per Glo. These findings made appellant liable for payment to appellee of workmen’s compensation benefits (T.C.A. 50-1106), provided appellee prosecuted his claim for benefits properly.

T.C.A. 50-1107, the notice statute, provides that:

“Within thirty (30) days after the first distinct manifestation of an occupational disease the employee, or some one in his behalf, shall give written notice thereof to the employer in the same manner as is provided in the case of a compensable accidental injury.
“This section shall not apply to claims for total disability or death due to coal worker’s pneumoconiosis.” (That part of the statute emphasized became effective July 1, 1972.)

The limitation statute, T.C.A. 50-1108, provides that:

“The right to compensation for occupational disease shall be forever barred unless suit therefor is commenced within one (1) year after the beginning of the incapacity for work resulting from an occupational disease, and if death results from the occupational disease, unless a suit therefor be commenced within one (1) year thereafter; * * *
“A claim for benefits or death due to coal worker’s pneumoconiosis shall be timely filed if such claim is filed within three (3) years of the discovery of total disability or the date of such death as the case may be.” (That part of the statute emphasized became effective July 1, 1972.)

Appellant insists that appellee’s claim for benefits is controlled by the notice and limitation statutes in effect in 1969, when appellant left the employ of Kopper Glo. From this, appellant argues that since ap-pellee did not give notice within thirty (30) days and file suit within one year from December 20, 1972 — the date the chancellor found that appellee knew or should have known of his incapacity from coal worker’s pneumoconiosis — appellee is barred from workmen’s compensation benefits. The chancellor rejected this argument and held that appellee had properly processed his claim for benefits. We agree with the chancellor’s holding. The controlling statutes on notice and limitation of actions were those in effect when appellee’s cause of action became complete. This occurred when his occupational disease of coal worker’s pneumoconiosis, which is a progressive disease, manifested itself to such a degree that appellee knew or should have known that his incapacity to work was due to the occupational disease. Cf. Imperial Shirt Corp. v. Jenkins, 217 Tenn. 602, 399 S.W.2d 757 (1966); Reed v. Genesco, Inc., 512 S.W.2d 1 (Tenn.1974). See also Annotation, Limitation — Enlarging Period 79 A.L.R.2d 1100, § 11. The chancellor found that the appellee knew or should have known of his incapacity from an occupational disease on December 20, 1972. Under the statute in effect at that time, appellee was not required to give his employer notice of disability, and had three years within which to bring an action for benefits. The appellee brought his action within the required time.

Decree affirmed. Costs incident to the appeal are adjudged against Bituminous Casualty Corporation and its surety.

PONES, HENRY, BROCK and HARBI-SON, JJ., concur.


author: TODD, Judge.

text:
    Mr. and Mrs. Arlis PACK, Plaintiffs-Appellees, v. Mrs. Dorothy Garrison ROGERS et vir., Delmas F. Rogers, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 27, 1976.
    Certiorari Denied by Supreme Court June 26, 1976.

      Scott Daniel and D. C. Daniel, Jr., Mur-freesboro, for plaintiffs-appellees.
    Bernard K. Smith, Smith & Stanley, McMinnville, for defendants-appellants.
   OPINION

TODD, Judge.

This appeal involves the custody of Tammy Arlene Garrison, aged 7, who was born the natural child of Dorothy and Charles Garrison. The father is deceased, and the mother is now Mrs. Delmas F. Rogers.

The action was initiated by Mrs. Arlis Pack, maternal aunt, and Mr. Pack, her husband, by a Petition for Temporary Custody filed in Juvenile Court. The Juvenile Judge awarded temporary custody to Mr. and Mrs. Pack. The decision was appealed to the Circuit Court by the mother, Mrs. Rogers; and her husband was permitted to join in and participate in the cause in Circuit Court. The Circuit Court found the child to be dependent and neglected (relating to its natural mother) and, acting under § 37-230 T.C.A., granted temporary custody to Mr. and Mrs. Pack under specified conditions including visitation rights to the natural mother, and remanded to the Juvenile Court for further proceedings.

From the action of the Circuit Judge, Mr. and Mrs. Rogers have appealed and assigned nine errors.

The first assignment complains that the Trial Judge erroneously found the child to be abandoned under § 37-202(7) T.C.A., as follows:

“(7) ‘Abandoned child’ means a child whose parents or other persons lawfully charged with his care and custody willfully fail to visit or willfully fail to support or make payments toward his support for a period of four (4) consecutive months.”

Appellants assert that the child was not abandoned by its mother.

It is uncontroverted that, about six months before the birth of Tammy, her mother and father separated and the mother moved into the home of the Packs with her two children, aged 12 and 15; that they continued to live with defendants until about eight or nine months after Tammy’s birth, when the mother and children moved to another address; that shortly thereafter Tammy was returned to the Packs and has lived with them ever since; that the father, Garrison, lost his life in an accident in July, 1971; that the mother of Tammy went to Michigan in 1968 when Tammy was 10 or 11 months old, then returned to McMinnville for about a year, then went back to Michigan in May, 1969 and has lived there ever since; and that on August 14, 1973 the mother married Delmas F. Rogers and established a home for her husband, herself and two older children, now aged 19 and 22.

As to the critical facts of visits and support as mentioned in the statute, supra, the testimony is sharply controverted. Apparently with a background of knowledge of the statute, Mrs. Rogers testified insistently that she visited Tammy every three or four months and contributed regularly to her support by sending her clothing and gifts.

In sharp contrast, and with apparent knowledge of the same statute, the plaintiff, Velma (Mrs. Arlis) Pack, testified that the mother visited Tammy every five or six months, but that the visits were ultimately spaced at about once per year. The same witness stated that no money was ever received from the mother and that gifts were limited to some but not all Christmases and birthdays. Particularly worthy of note is a letter from the mother to Tammy regarding clothing being sent to her. At the end of the letter is this note to Mrs. Pack:

“P.S. Velma you can wash these clothes I just don’t have time I have been working every day.”

Mrs. Pack testified that the mother stated to her that the clothes were obtained at a rummage sale.

Without elaborating upon the details of the testimony, it is sufficient to state that there was testimony which, if believed, would show statutory abandonment by failing to visit or failing to support within a four month period; and there is testimony which, if believed, would prove the contrary.

In cases tried orally before a judge or chancellor without a jury, it has been held that the appellate courts will give great weight to the finding of the judge or chancellor as to credibility. National Service Fire Ins. Co. v. Williams, 61 Tenn.App. 362, 454 S.W.2d 362 (1969) and authorities cited therein. It has also been held that, in such cases the decision at the trial level as to credibility of witnesses is final and not subject to review in the appellate courts. Weeks v. Summerlin, 62 Tenn.App. 650, 466 S.W.2d 894 (1970) and authorities cited therein.

The record presents no basis upon which this Court, from the reading of printed testimony, should substitute its judgment as to credibility for that of the Trial Judge who saw and heard the witnesses in person. The Trial Judge evidently accepted the version of the facts presented by the plaintiffs-appellees. Such version supports his conclusion that there had been an abandonment under the statute, supra.

Appellants rely upon Ex Parte Wolfenden, 49 Tenn.App. 1, 349 S.W.2d 713 (1959); however, said ease involved an adoption and this Court specifically stated:

“[2] We should like to point out that in resolving the issue of abandonment, the circuit judge is not limited by the definition of an abandoned child found in Section 36-102(5):
‘For the purpose of this chapter, an abandoned child shall be any child under the age of eighteen (18) years who shall be willfully abandoned at least four (4) consecutive months immediately preceding institution of an action or proceeding to declare the child to be abandoned child.’
This definition applies according to its express provisions only in case there is an ‘action or proceeding to declare the child to be abandoned child,’ and has not been extended by amendment or construction to apply when the issue of abandonment is under consideration in an adoption proceeding in the circuit or chancery court.” 49 Tenn.App., p. 4, 349 S.W.2d, p. 714.

The statutory definition of “abandoned child,” § 37-202(7) supra, is applicable to cases such as the present where the Juvenile Court assumes jurisdiction of a child under § 37-203 which confers jurisdiction in:

“(2) All cases to terminate parental rights when a child is found to have been abandoned for four (4) consecutive months immediately preceding institution of an action or proceeding to declare the child to be an abandoned child, except that this does not deprive circuit and chancery courts of the right to adjudicate an abandonment where abandonment has been alleged in a petition to adopt as is provided in chapter 1 of title 36.”

Thus it is seen that abandonment for the purposes of adoption (as in Wolfen-den) is not necessarily the same as statutory abandonment for four months for the purposes of custody jurisdiction of the Juvenile Court (as in the present case).

The first assignment of error is respectfully overruled.

The second assignment of error is that the Trial Court erred in finding that the child was dependent and neglected with respect to its natural mother. T.C.A. § 37-202 defines a dependent and neglected child as follows:

“(6) ‘Dependent and neglected child’ means a child
(i) who is without proper guardianship;
(ii) whose parent, guardian, or person with whom the child lives, by reason of cruelty, mental incapacity, immorality, or depravity is unfit to properly care for such child;
(iii) who is under unlawful or improper care, supervision, custody or restraint by any person, corporation, agency, association, institution, society or other organization or who is unlawfully kept out of school;
(iv) whose parent, guardian or custodian neglects or refuses to provide necessary medical, surgical, institutional or hospital care for such child;
(v) who because of lack of proper supervision, is found in any place the existence of which is in violation of law;
(vi) who is in such condition of want or suffering or is under such improper guardianship or control as to injure or endanger the morals, or health of himself or others; or
(vii) who is suffering from or has sustained a wound, injury, disability, or physical or mental condition caused by brutality, abuse, or neglect.”

There is no evidence that the child in any respect qualifies under the foregoing definition, hence she is not “a dependent and neglected child.” Therefore the disposition of the cause was not justified under TCA § 37-230 (dependent and neglected children) but rather under § 37-203(2), supra (cases where child has been abandoned).

The second assignment of error is sustained.

The third and fifth assignments of error are as follows:

Third Assignment
“The lower court erred in awarding temporary custody to the Packs without making an express finding that awarding custody to the natural mother might be detrimental to the child. (T.R. 18; 25; 31-33)
Fifth Assignment
“The lower court erred in placing the burden of proof to the natural mother to prove her fitness rather than requiring the Packs to prove that granting the mother custody would be detrimental to the child. (T.R. 22)”

Appellants cite State ex rel. Parker v. Parker, 191 Tenn. 564, 235 S.W.2d 580 (1951). Said opinion does, indeed, contain the favorable statements relied upon by appellants; but a reading of the entire opinion produces an entirely different impression. Parker is strikingly similar to the present case. It involved a contest between a mother and paternal grandparents of a child, aged six. The judgment of the Circuit Court Judge, placing custody in the grandparents with visitation rights to the mother, was affirmed except that the visitation was restricted more narrowly on appeal. Certain factual details distinguish Parker from the present case, particularly the behavior of the mothers.

Appellants cite Stubblefield v. State ex rel. Fjelstad, 171 Tenn. 580, 106 S.W.2d 558 (1937), wherein the Supreme Court affirmed a habeas corpus judgment awarding a four year old child to its father in preference to two elderly gentlemen who were great-grandfather and great uncle of the child and with whom the child had resided since the death of its mother. The petition was filed by the father 12 days after the death of the mother, hence only 12 days of exclusive custody of the grandfather and uncle preceded the action. The Supreme Court did emphasize the paramount position of a parent in respect to the custody of a child. However, the overriding consideration of the welfare of the child was also recognized.

Appellants also cite Dunavant v. Dunavant, 31 Tenn.App. 634, 219 S.W.2d 910 (1949) wherein this Court reviewed a divorce decree and modified same to remove a split custody between father and maternal grandmother. This Court recognized the prior claim of a parent, but reiterated the paramount consideration of welfare of the child.

Appellants assert that there is no showing that awarding custody to the mother would be detrimental to the child.

The evidence as to the character and behavior of the mother (which was evidently believed by the Trial Judge) is rather unfavorable. The forfeiture of a cash bond upon charge of maintaining a house of ill fame, residing with men in an unmarried state, and leaving an infant child with a relative continuously during the first seven years of its life do not recommend the mother as a fit custodian for a little girl.

As stated in a number of authorities, suitability of custodians is a comparative matter. If, as found by the Trial Court, the child has been in suitable custody for seven years and is thriving in its present situation, the court is justified in considering the probable detriment to the child by the trauma of being transported to a distant city among strangers (except for her mother who is to a large degree a stranger). The court is also justified in considering the past conduct of the mother as reflecting upon her probable future conduct.

It cannot be said that the Trial Court acted without evidence that awarding custody to the mother would be detrimental to the child.

The third and fifth assignments of error are respectfully overruled.

The fourth assignment of error is as follows:

“The lower court erred in making a finding of abandonment without giving Mrs. Rogers the benefit of every controverted fact. (T.R. 18; 25 B.E. Entire Record.)”

Again, appellants cite Wolfenden, supra, which has already been distinguished.

Appellants also cite Pierce v. Bechtold, 60 Tenn.App. 478, 448 S.W.2d 425 (1969) which was also an adoption proceeding and did not involve a juvenile custody proceeding under the statute. The facts in the cited case would have supported statutory abandonment, but the statute was not involved. In Pierce v. Bechtold, this Court recognized the factor of ability of a parent to support or contribute to support. Also involved in that case was refusal of offers of support from the mother. In the present case, it is shown that the mother was regularly employed during the entire period of her absence in Michigan and there are grounds for a finding that she did not support or contribute to support at times when she was able to do so.

Appellants fail to distinguish between an action or proceeding to declare an abandonment for the purpose of adoption as in Wolfenden and Bechtold, supra, and an action to assert jurisdiction of the Juvenile Court under the statute, as in the present case. The criteria of “abandonment” are decidedly different.

Appellants assert: “Mrs. Rogers did not abandon Tammy.” As previously established, under the testimony believed by the Trial Judge, Mrs. Rogers was guilty of such inattention to Tammy as to constitute abandonment as defined in the statute and to confer upon the Juvenile Court the supervision of the custody of Tammy.

The fourth assignment of error is respectfully overruled.

The sixth assignment of error is as follows:

“The lower court erred in completely ignoring the threats and violence of the Packs to which several witnesses testified, including the testimony of Mildred Adams concerning the assault and battery perpetuated upon her by Mrs. Pack and one of Mrs. Pack’s daughters upon learning that Tammy’s mother had taken her home to Michigan, including hitting Mrs. Adams with a fishing rod handle and with a broomstick.”

The conduct recited in this assignment was generally denied by plaintiffs and was, at most, a circumstance reflecting upon credibility of witnesses which was peculiarly for determination, of the Trial Judge.

The sixth assignment of error is respectfully overruled.

The seventh assignment of error is as follows:

“The lower court erred in placing an adverse interpretation on the natural mother’s return of the minor to Tennessee upon learning of the legal action filed by the Packs in the Juvenile Court of Warren County, Tennessee. (T.R. 3; 23 B.E. 65; 273-277)”

The opinion of the Trial Court recites:

“The court is further impressed with the fact that the natural mother permitted the return of the child to Mr. and Mrs. Pack from the State of Michigan after she had successfully retrieved the child from the State of Tennessee. A mother’s natural instinct would be to retain custody of her daughter once she had it,-no matter what action she believed Mr. and Mrs. Pack were beginning back in the State of Tennessee. Mrs. Rogers said she returned the child because she heard a kidnapping charge had been placed against her, but there is no proof that such action was in fact commenced, nor did the mother consult with an attorney in the State of Michigan, or anywhere else, regarding the legal implications of such charges.”

It appears that, a few days prior to the institution of this proceeding, the mother came to Tennessee and surreptitiously removed the child to Michigan. She was thereafter informed that she was charged with kidnapping (no such charge was ever made) whereupon she sent Tammy back to plaintiffs in the custody of her older brother. This Court does not view the incident as being particularly persuasive either in favor of or against the mother. Therefore, the observation of the Trial Judge, quoted supra, is deemed non-pre judicial as to the results reached. At least, such consideration does not enter into the conclusions of this Court on appeal.

The eighth assignment complains of the following observation in the memorandum opinion of the Trial Judge.

“Little interest was shown by the natural mother in the child’s schooling. No proof was adduced as to what conditions this court may expect Tammy to live in while at Warren, Michigan; no indication was presented showing that Mr. and Mrs. Rogers have undertaken to find out what educational surroundings Tammy could anticipate there.”

It is true that appellants presented evidence as to the nature of home accommodations for Tammy in Michigan, which included sharing a bedroom with a 19 year old sister. Mr. Rogers testified as to his good intentions as to treatment of Tammy. Other witnesses testified as to the suitability of the home.

The quoted comment of the Trial Judge was not entirely justified, however, it is viewed as a reflection upon the interest of the mother in the welfare of Tammy rather than the actual physical accommodations available for her. The comment is not considered grounds for reversal.

The ninth assignment is as follows:

“The lower court erred in its finding that no real effort was made to retrieve the child once the home was established in Michigan. (T.R. 22)”

There is testimony of Mrs. Rogers, denied by plaintiffs, that she made some overtures concerning assuming custody of Tammy. Evidently the Trial Judge believed the denials of plaintiffs rather than the assertions of Mrs. Rogers.

From an examination and consideration of all of the assignments of error, it does not appear that the Trial Judge committed reversible error in his disposition of the cause. The conditions of temporary custody in the Packs were defined as follows:

“1. That Mr. and Mrs. Arlis Pack maintain a comfortable home for their charge and to this end the Warren County Department of Public Welfare is directed to call upon and investigate Tammy’s home and surrounding at least twice monthly and make a monthly report to the court enforcing these orders.
“2. That Mr. and Mrs. Pack remained married to each other.
“3. That Mr. and Mrs. Pack immediately shall afford this child an opportunity to regularly attend Sunday School or Church.
“4. That the Department of Public Welfare periodically investigate and report the child’s grades to the court.
“5. That Mr. and Mrs. Delmas Rogers be permitted to visit and be with Tammy twice a month on weekends at some place other than the Pack’s home, but within the confines of Warren County, Tennessee. That the exact time and place are to be agreed upon by the parties involved; that prior to the impending visitations Mr. and Mrs. Rogers shall notify Mr. and Mrs. Pack of the time they anticipate arrival and when they desire to have custody of the child. Under no circumstances is the child to be removed from Warren County, Tennessee.
“6. That a bond in the penal sum of Two Thousand ($2000) Dollars be executed by Mr. and Mrs. Delmas Rogers, together with two (2) solvent sureties, subject to judgment and collection in the event said child is removed from Warren County, Tennessee; said bond to be prepared by counsel for the prevailing parties and approved upon execution by the Sheriff of Warren County.
“7. That the child be given quarters separate and apart from Mr. and Mrs. Arlis Pack.”

While a different conclusion might have been reached upon the same evidence, this Court is not in position to review the findings on credibility and, on this basis, the evidence does not preponderate against the conclusions of the Trial Judge which must therefore be affirmed. § 27-303, T.C.A.

It is most regrettable, but true, that love sometimes begets hatred, and despicable conduct is sometimes spawned in the purest of motives and emotions. This controversy has divided a family of sisters, engendered unseemly conduct, encouraged carelessness with the truth and produced a most distressing problem for the courts. Its source is the professed love of mother, step-father, aunt and uncle for a little girl. True love is not selfish, but seeks the welfare of the object of love, even to the detriment of the lover.

Under the situation decreed by the Trial Judge, each of the combatants will have opportunity to prove their love for Tammy in self denial and promotion of her welfare, especially her emotional well being and growth.

The present custody of Tammy is temporary. It may be changed at any time her welfare requires.

Although not assigned as error or argued in briefs, this Court has noticed the words “abandoned for four (4) consecutive months immediately preceding institution of an action . . in § 37-203, quoted supra. It might be argued that the actions of the mother in seizing the child a few days prior to this action and returning the child before trial were sufficient to interrupt the abandonment “immediately preceding . . . the action”; that is, that the child was not abandoned during the entire four months preceding the action because, for a few days, she was actually with her mother in Michigan. If this argument had been made, and if the Juvenile Court should be held to have no jurisdiction for this reason, the disposition of this appeal would not be affected. This is true for two reasons.

1. No objection was made in the Trial Court as to the form or jurisdiction of the proceeding.

2. The cause was ultimately heard de novo in the Circuit Court which has jurisdiction of habeas corpus which would be the proper proceeding in event Juvenile Court has no jurisdiction. Therefore, the cause was heard on its merits by a court having jurisdiction of the subject matter, regardless of the technical designation of the case or its origin. No beneficial purpose could be served by forcing the retrial of the same issues before the same judge under a different technical category.

The judgment of the Trial Court is affirmed. The costs of this appeal are adjudged against the appellants. The cause is remanded to the Trial Court for implementation of its judgment; i. e., collection of costs and remand to the Juvenile Court.

Affirmed and Remanded.

SHRIVER, P. J., and DROWOTA, J., concur.


author: BROWN, Commissioner.

text:
    Elgin BALDWIN, Jr., Appellant, v The STATE of Texas, Appellee.
    No. 51308.
    Court of Criminal Appeals of Texas.
    July 14, 1976.
    Stan Brown, Abilene, for appellant.
    Ed Paynter, Dist. Atty. and John Weeks, Asst. Dist. Atty., Abilene, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction of the offense of attempted murder under V.T. C.A. Penal Code, Sec. 15.01, and Sec. 19.02. The jury assessed punishment at eleven (11) years in the Texas Department of Corrections.

In his first ground of error the appellant challenges the sufficiency of the evidence to sustain a conviction for attempted murder.

Viewing the evidence in the light most favorable to the verdict, the record reflects that the complaining witness, Robert Willis, testified that the appellant hit him on the arm and then the side of the head with a three and a half foot length of pipe. Willis testified that the appellant attacked him without provocation after having previously threatened his life.

Dr. John O’Loughlin testified that he treated the victim for a severe head injury. He stated that the victim had suffered a skull fracture and that the fragments of bone penetrated the brain requiring immediate surgery. Willis’s right hand is still semi-paralyzed and further surgery will be required to insert a metal plate in the victim’s skull.

Oliver Merrick testified that he witnessed the appellant’s assault on Willis and that he saw the appellant hit the victim in the head with the pipe after Willis was on the ground.

Marilyn Overton testified that she saw the appellant strike the victim once and then twice after he was on the ground for no apparent reason.

The appellant testified and admitted hitting the victim with the pipe. He insisted, however, that he believed the victim had a gun and that he was acting in self-defense.

The testimony was in conflict and the jury as the trier of fact resolved this conflict against the appellant. The jury may accept or reject any or all of the testimony and determine the weight to be given to it. This is the jury’s function as fact finder. Lombardo v. State, 503 S.W.2d 780 (Tex.Cr.App.1974); Pope v. State, 505 S.W.2d 556 (Tex.Cr.App.1974); Garcia v. State, 522 S.W.2d 203 (Tex.Cr.App.1975); Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975).

It should be noted that both the appellant and the State argue this case on the assumption that attempted murder is identical in the required elements of proof with the offense of assault with intent to murder under the prior Penal Code.

In order to prove murder under V.T.C.A. Penal Code, Sec. 19.02(a)(2) the State must prove that the actor first, intends to cause serious bodily injury, second, the actor commits an act clearly dangerous to human life, that, third, causes the death of an individual.

A person commits the offense of criminal attempt under V.T.C.A. Penal Code, Sec. 15.01 if, first, with the specific intent to commit an offense he, second, does an act amounting to more than mere preparation that third, tends but fails to effect the commission of the offense intended.

Applying the foregoing analysis to the facts of the instant case the State was required to show the following elements of attempted murder. First, that the appellant intended to cause serious bodily injury. This is clearly shown by the appellant striking the victim on the arm and twice on the head with a three and a half foot metal pipe. A severe skull fracture certainly shows a substantial risk of death. There was also evidence that the victim suffered protracted impairment of his right arm and hand. Second, the State was required to show that the appellant committed an act amounting to more than mere preparation. Here the evidence shows the appellant committed an act clearly dangerous to human life, the blows to the head of the victim with the pipe. The third element of murder is not shown because the victim in this case did not die as a result of the acts of the appellant; therefore, the appellant failed to effect the commission of the offense intended.

A specific intent to kill is not required under V.T.C.A. Penal Code, Sec. 19.02(a)(2) for the offense of murder to be committed. The specific intent, therefore, required under V.T.C.A. Penal Code, Sec. 15.01 would not be a specific intent to kill but need only be the intent to cause serious bodily injury.

The jury in the instant case could properly have concluded from the testimony that the appellant intended to cause serious bodily injury to the victim.

Since the appellant makes no complaint about the sufficiency of the indictment we need not reach the question of whether an indictment- for attempted murder must specify murder under V.T.C.A. Penal Code, Sec. 19.02(a)(1) or (a)(2) or (a)(3). No motion to quash was filed in the instant case and this indictment is not fundamentally defective.

The evidence is clearly sufficient to support the conviction.

Appellant’s first ground of error is overruled.

Appellant in his second ground of error contends that the trial court erred in failing to give his specially requested charge on self-defense based on threats of the victim to kill the appellant. The trial court charged on self-defense including an instruction that the jury could consider the words or conduct of the victim in determining whether the appellant acted reasonably. The rights of the appellant were protected by the charge given on self-defense.

Appellant’s second ground of error is overruled.

The judgment is affirmed.

ODOM, J., concurs in the result.

ROBERTS, J., dissents.

      . Art. 1160 V.A.P.C.

      . Serious bodily injury is defined in V.T.C.A., Penal Code, Sec. 1.07(a)(34).


author: GUPTON, Judge.

text:
    Jimmy Lee POWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 51427.
    Court of Criminal Appeals of Texas.
    July 14, 1976.
    Steven F. Gamble, Longview, for appellant.
    Odis R. Hill, Dist. Atty. and Alvin G. Khoury, Asst. Dist. Atty., Longview, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Judge.

The offense is unlawful possession of a firearm by a felon under V.T.C.A., Penal Code, Sec. 46.05; the punishment, four years.

This appeal was formerly dismissed in a per curiam opinion delivered April 20,1976, because sentence was improperly pronounced. See Art. 42.03, V.A.C.C.P. A supplemental transcript reflects appellant has been resentenced and the appeal is reinstated.

The record reflects the appellant was in possession of a handgun at the home of his cousin on March 29, 1975, and that appellant had been convicted in 1963 of burglary of a motor vehicle.

Appellant alleges the conviction is invalid because the indictment does not allege and the proof does not establish the felony for which appellant was previously convicted involved an act of violence or threatened violence to a person or property as required by Sec. 46.05, supra.

Appellant relies on Mendoza v. State, Tex.Cr.App., 460 S.W.2d 145, and Waffer v. State, Tex.Cr.App., 460 S.W.2d 147, which involved convictions for possessing a firearm in violation of Art. 489c, V.A.P.C. The judgments therein were reversed because of the absence of allegation and proof that the burglary offense for which each appellant had previously been convicted was a felony involving an act of violence.

The cause sub judice is distinguishable from Mendoza and Waiter, supra. The indictment alleges appellant was previously convicted “of a felony offense involving violence to property, to-wit, the felony offense of Burglary Of A Motor Vehicle.” The indictment, judgment and sentence of that case were admitted into evidence. The indictment alleges forcible entry in an automobile. The assistant district attorney who represented the State during the trial of that cause testified as follows:

“Q All right. Let’s go into the facts of the crime charged against the Defendant, Jimmy Lee Powell, back in 1963. Did that involve actual violence to property? A Yes, it involved forceful entry.”

This ground of error is overruled.

Appellant’s other ground of error alleges Sec. 46.05, supra, “is unconstitutionally vague in the description of what constitutes a felony involving an act of violence or threatened violence to a person or property.”

Appellant contends it is unclear what felonies come within the meaning of a felony involving an act of violence or threatened violence. Appellant concedes robbery would be included in this category under Mena v. State, Tex.Cr.App., 504 S.W.2d 410, but argues burglary could be committed without an act of violence. Appellant proposes the statute be held unconstitutional or in the alternative appellant asks this Court to enumerate which felonies come within the purview of this statute. We find the statute is not so vague or indefinite as to violate due process of law. Whether a felony offense is within the scope of this statute must depend on the facts and circumstances of each case.

In McGuire v. State, 531 S.W.2d 26 (1976), this Court held Sec. 46.05, supra, was constitutional notwithstanding Art. I, Sec. 23, of the Texas Constitution. We also held that the authorities discussed in Webb v. State, Tex.Cr.App., 439 S.W.2d 342, cert. den. 396 U.S. 968, 90 S.Ct. 450, 24 L.Ed.2d 434, which passed on the constitutionality of Art. 489c, V.A.P.C., the prior statute, are applicable to Sec. 46.05, supra. As discussed in Footnote 1 of McGuire, supra, the earlier statute was not held constitutional in light of the attack here presented. The rule has long been:

“A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law.”

Ex parte Chernosky, 153 Tex.Cr.R. 52, 217 S.W.2d 673, 674. See also Baker v. State, Tex.Cr.App., 478 S.W.2d 445; Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

A statute is not rendered unconstitutionally vague merely because the words or terms are not specially defined. Under Art. 8, V.A.P.C. (1925), such words were to be “taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed.”

V.T.C.A., Penal Code, Sec. 1.05(a) provides:

“The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.”

Words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence have been held not to be vague and indefinite. In Ramirez v. State, Tex.Cr.App., 518 S.W.2d 546, this Court held the phrase “bodily injury” as used in V.T.C.A., Penal Code, Sec. 22.02(a)(2), and as defined in Sec. 1.07(a)(7) is not vague and indefinite.

In McMorris v. State, Tex.Cr.App., 516 S.W.2d 927, we held Art. 341(b), V.A.P.C., the prior resisting arrest statute gave a person of ordinary intelligence fair notice that his contemplated conduct was forbidden.

In Stein v. State, Tex.Cr.App., 515 S.W.2d 104, we held the phrase “signal to stop” as it appears in Art. 6701d, Sec. 186, V.A.C.S., has a meaning well understood by automobile drivers.

Other words held to have a commonly understood meaning include “edible meat”, Sanford v. State, Tex.Cr.App., 492 S.W.2d 581; “solicit”, Page v. State, Tex.Cr.App., 492 S.W.2d 573; “nightstick”, Spigener v. State, 166 Tex.Cr.R. 466, 314 S.W.2d 832. Cf. Baker, supra, in which the phrases “have no visible means of support” and “no property to support” were found to be vague and indefinite, and Guzman v. State, Tex.Cr.App., 456 S.W.2d 133, which held the term “hand chain” does not have a commonly understood meaning.

We find that the words “an act of violence or threatened violence to a person or property” as used in Sec. 46.05, supra, have a meaning which may be understood by a person of ordinary intelligence and give fair notice of the felony offenses which may subject a felon to prosecution under this statute. Appellant’s contention that Sec. 46.05, supra, is unconstitutionally vague is overruled.

We have reviewed the contentions in the pro se brief and find them to be without merit.

The judgment is affirmed.

      . Sec. 46.05 provides in part:
      “A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives.”


author: DALLY, Commissioner.

text:
    Richard Lee Thomas HOHN, Appellant, v. The STATE of Texas, Appellee.
    No. 51791.
    Court of Criminal Appeals of Texas.
    July 14, 1976.

      Larry Warner, Joseph H. Pool, Amarillo, for appellant.
    Andrew J. Shuval, Dist. Atty., Hereford, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction after a jury trial for the offense of sexual abuse of a child; the court assessed punishment at imprisonment for 14 years and a fine of $5,000.

Appellant challenges the sufficiency of the evidence, asserting that the prosecu-trix’s testimony is “incredible” and that it is insufficiently corroborated.

The record reflects that at the time the offense was committed the appellant was living in a trailer with the prosecutrix’s mother, who was not his wife, in addition to the prosecutrix and her brother and sister. The prosecutrix, C— G_, nine years old at the time of the commission of the offense and nearly ten at the time of trial, testified that one evening during the summer of 1974 the appellant made her take her clothes off, get in his bed and perform an act of oral sodomy on him. He warned her not to tell her mother about the incident, that if she did, “something would happen”; she said she thought that he meant either she or her mother would be hurt if she reported what had happened. She further stated that subsequent to the initial incident the appellant required her to perform oral sodomy on him on a number of other occasions; she was unable to remember specifically how many times the appellant thus approached her, but stated that she thought it was less than ten times. The prosecutrix indicated that she was frightened of the appellant and did not disclose what had been occurring until she was confronted by her mother shortly after her brother had told her mother that he thought something wrong was going on between the appellant and the prosecutrix.

The prosecutrix’s brother, G_G_, who was seven years old at the time of trial and six at the time of the commission of the offense, testified that there were magazines with pictures of naked men on the front and back covers in the trailer where they lived and that the appellant would make the prosecutrix look at the magazines with him. The appellant would warn the prose-cutrix that he would “get mad” if she did not look at the magazines with him. On some occasions the appellant called the prosecutrix into the bedroom or bathroom and then shut the door behind them; the appellant became angry with the prosecu-trix when she resisted his demands. The prosecutrix’s brother also stated that after watching appellant’s behavior with the prosecutrix, he decided something was wrong and told his mother. She became angry and confronted the prosecutrix, who then broke down and disclosed that the appellant had been making her perform oral sodomy on him.

The appellant testified in his own behalf, denying that the prosecutrix had ever performed oral sodomy on him or that he had ever shown her any “pornographic” literature. Appellant stated that prosecutrix’s mother, S— G — , had previously made similar allegations of sexual misconduct against her father and uncle and that the prosecu-trix had made similar allegations of sexual misconduct against her natural father, W_ G_, and stepfather, V_G_; he further stated that he thought the prosecutrix was merely repeating a pattern of behavior that she and her mother had previously established.

Appellant’s sister, R_L_A_, testified that in 1971 the prosecutrix had accused her stepfather of forcing her to perform oral sodomy on him. P_W_, another of the appellant’s sisters, testified that on several occasions the prosecutrix had made accusations of sexual misconduct against both her stepfather and her natural father.

Appellant contends that the testimony of the prosecutrix was, on its face, lacking in truthfulness and was thoroughly unbelievable. The jury heard all the testimony, including appellant’s defensive theory, and by its verdict it appears the jury found the prosecutrix’s testimony to be both truthful and believable.

Appellant also contends the prosecutrix’s testimony was not sufficiently corroborated by other evidence; he asserts that the failure of the. prosecutrix to make an outcry or to promptly report what had occurred requires that her testimony be corroborated.

It has been held in numerous prosecutions for rape that the testimony of a prosecutrix under the age of consent need not be corroborated even though there is no outcry or prompt report of the defendant’s alleged acts. Carter v. State, 506 S.W.2d 876 (Tex.Cr.App.1974); Williams v. State, 481 S.W.2d 119 (Tex.Cr.App.1972); Uhl v. State, 479 S.W.2d 55 (Tex.Cr.App.1972); Bass v. State, 468 S.W.2d 465 (Tex.Cr.App.1971); Hindman v. State, 152 Tex.Cr.R. 75, 211 S.W.2d 182 (1948).

In Hoagland v. State, 494 S.W.2d 186 (Tex.Cr.App.1973) in an appeal from a conviction for the offense of fondling a female under the age of fourteen years the same rule was applied where the complainant did not report the incident for six weeks. Also see and compare Carnathan v. State, 478 S.W.2d 490 (Tex.Cr.App.1972).

Under V.T.C.A. Penal Code, Sec. 21.-10, the offense of sexual abuse of a child is complete with or without the consent of the prosecuting witness and a conviction may be had upon the uncorroborated testimony of the victim regardless of whether there was an outcry or prompt reporting of the incident. We hold the evidence sufficient to support the jury’s verdict.

Appellant further asserts that the rule requiring corroboration of the prosecu-trix’s testimony when consent is an issue and there is no outcry or prompt reporting of the incident, while not requiring corroboration when consent is not an issue regardless of the promptness of an outcry or reporting of the incident is violative of equal protection. The cases in which consent is not an issue involve minors and we conclude that this distinction which rests upon the difference between minors and those who have reached the age of majority is a rational one. Cf. Buchanan v. State, 480 S.W.2d 207 (Tex.Cr.App.1972). Appellant’s contention is without merit.

The judgment is affirmed.

Opinion approved by the Court.

      . Under our holding we need not determine whether the testimony of the prosecutrix’s six year old brother corroborated the testimony of the prosecutrix. We also note that this offense was committed and the trial held before the effective date of the amendment to Art. 38.07, V.A.C.C.P., which provides as follows:
      “A conviction under Chapter 21, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. The court shall instruct the jury that the time which lapsed between the alleged offense and the time it was reported shall be considered by the jury only for the purpose of assessing the weight to be given to the testimony of the victim.” Added by Acts 1975, 64th Leg., p. 479, ch. 203, Sec. 6, eff. Sept. 1, 1975.