author: MAUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kenneth G. NORRIS, Defendant-Appellant.
    No. 10422.
    Missouri Court of Appeals, Southern District, Division 2.
    Feb. 13, 1979.
    Motion for Rehearing or Transfer to Supreme Court Denied Feb. 26, 1979.
    Application to Transfer Denied April 10, 1979.

      John D. Ashcroft, Atty. Gen., Weldon P. Perry, Jr., Steven Steinhilber, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    Robert P. Baker, Sarcoxie, for defendant-appellant.
   MAUS, Judge.

The defendant was charged under the Second Offender Act with burglary in entering the premises of J. W. Jones and stealing a welder the property of Clyde R. Jones. The Second Offender Act, § 556.280 RSMo 1969, was found to be applicable. Upon a verdict of guilty the trial court assessed defendant’s punishment at five years imprisonment for burglary and five years imprisonment for stealing. The sentences are to run concurrently. Defendant appeals.

Defendant has presented five points for review. At the outset, we note that the motion for new trial was filed on the thirty-second day after the verdict. Following the verdict the defendant requested thirty additional days for filing his motion. The trial court granted thirty days. This was not expressly stated to be thirty days in addition to the ten days provided by Rule 27.20. However, the state makes no assertion of a late filing. The motion was filed within the time that could have been granted by the trial court. The trial court heard and determined the motion apparently construing its order to mean thirty additional days. We see no reason to otherwise construe the record. State v. Smith, 518 S.W.2d 665 (Mo.App.1975).

Even though the defendant offered no evidence but stood on his motion for acquittal, the evidence will be considered most favorably to the state, with all reasonable inferences therefrom and we do not believe that State v. Truster, 334 S.W.2d 104 (Mo.1960) cited by defendant requires us to do otherwise. State v. Franco, 544 S.W.2d 533 (Mo.banc 1976); State v. Colthorp, 437 S.W.2d 75 (Mo.1969). The defendant questions the sufficiency of the evidence to establish that he was one of two men who stole a welder from a machine shop. A review of the evidence will be primarily directed to facts bearing on that issue.

The 240 acre Jones farm is located in the southeast part of Lawrence County approximately ¾ mile south of Highway ZZ. It is northeast from Aurora and southwest from Marionville. A county road runs north and south on the east side of the Jones farm. There are two sets of improvements. Son, Clyde R. Jones, lived at the north set at which there was located a large barn and machine shed.

On the day in question, J. W. Jones was going to see a nearby neighbor. His route to the neighbor’s home was ¾ mile north on the county road, a right (east) turn on Highway ZZ and then about ¾ mile east to the neighbor’s. He left home a few minutes before 4:00 p. m. At the intersection of the county road and Highway ZZ he met an automobile coming from the west, which was a 1954 Chevrolet, blue in color with a light top. The Chevrolet turned south on the county road toward the Jones farm just as Jones turned east on Highway ZZ. Jones briefly observed the driver and a passenger.

Upon arriving at the neighbor’s, Jones saw that the neighbor’s pickup was not there. Jones concluded the neighbor was not at home, turned around and started back to his home. Upon approaching, Jones saw the Chevrolet parked in front of the machine shed, backed up to big double doors. The trunk was open. He saw a man in the driver’s seat and another at the rear of the car. The man outside tossed something in the trunk and got in “real fast”. As the automobile was leaving when Jones drove in the machine shop lot, Jones determined to try and mark it with his truck. He put his truck in reverse and scraped the right side of the Chevrolet. After the vehicles disengaged, Jones turned around and chased the Chevrolet north on the county road to a point one-half mile north of Highway ZZ. He got the license number on the Chevrolet which was PZ2-032.

From his brief observation at the intersection and upon approaching the machine shed, J. W. Jones described the passenger as a man having a full beard about an inch long, ungroomed, almost Afro style hair, wearing dark clothing but no hat. The driver was described as having a light beard, hair not as long as the passenger but probably collar length, wearing a light weight stocking cap or cap of some kind. The passenger appeared to be taller than the driver, although neither was a large man. Jones could not identify defendant as one of the two men at the machine shop.

Upon returning to his farm, Jones found the lock on a small door on the south side of the machine shed had been forced open and a welder owned by Clyde R. Jones kept in the shed was missing. A black low-cut men’s oxford shoe was found in front of the shed.

Helen Walters lived in the western part of Christian County approximately 1½ miles north and 4V2 miles east of the Jones farm. She had known the defendant for approximately 20 years. On the day in question the defendant came to her house between 4:00 and 4:30 p. m. She observed an older, middle 50’s, car. Her son, who saw the defendant after being awakened, estimated the time as 3:30 p. m. As the defendant walked toward the house Mrs. Walters, who didn’t see too well, didn’t recognize him at first because of his long hair and the fact he had on a little round hat with a brim, a camouflage hat, pulled down over his ears. He did not have a beard. Defendant asked to use the phone to call his wife and was permitted to do so. He told her to bring his shoes and come and get him and he gave her directions. Helen Walters saw he was wearing only one shoe. Later, a car drove up and defendant and a man from the older car got in and left.

At about 5:00 p. m. Lawrence County Investigator Tatum was going from Aurora to search for the Chevrolet automobile. On leaving Aurora he saw Mrs. Norris driving a blue Buick west on U. S. Business Route 60 entering Aurora from the east. Defendant, who he observed had shoulder length hair, and a man with a beard, Ralph Scott, Jr., were her passengers.

Officer Ellis, who was parked at the intersection of business Route 60 and Elliott, saw the Norris blue Buick come from the east and turn south toward the Norris home on Elliott. He identified Mrs. Norris, defendant and Ralph Scott, Jr. Defendant had hair to his shoulders, but no beard as such. Between 5:00 and 5:30 p. m. Stockton saw three people walking into the Norris house. Defendant had long hair but no beard, but he couldn’t see if he was clean shaven.

Ralph Scott, Jr. lived almost directly across the street from the defendant. The Chevrolet was licensed to him. It had been seen in Norris’ yard two days before the incident. Scott and defendant had been observed in the Chevrolet with Norris driving.

About 6:00 p. m. Tatum located the Chevrolet at the Walters’ residence and it was taken by the Sheriff of Christian County to Ozark. The next day, under the authority of a search warrant, the trunk was pried open. The missing welder was in the trunk.

The first contention of the defendant to be considered is that the evidence is insufficient to support his conviction. Considering the evidence most favorably to the state, the salient facts a jury could reasonably have found from the evidence are: the defendant was an associate of Ralph Scott, Jr.; the automobile used in the theft was owned by Ralph Scott, Jr.; that automobile had been in defendant’s possession and he had driven it within two days before the theft; two men within the general description of defendant and Ralph Scott, Jr. were at the scene; a man’s shoe was found at the scene; within a few minutes after the theft defendant and Ralph Scott, Jr. arrived at the Walters’ home in the Chevrolet with the stolen welder in the trunk; the defendant was wearing one shoe.

The defendant emphasizes that this is a circumstantial evidence case and asserts inconsistencies in the state’s evidence. It is true in a circumstantial evidence case the facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence. State v. Franco, supra, 544 S.W.2d 533. However, the inconsistencies asserted by defendant are not of basic facts but such things as estimates of time and physical descriptions. Such inconsistencies are for the jury. He also urges hypothetical conclusions from the evidence showing nonpar-ticipation in the crime. However, our Supreme Court has said:

“In a case involving circumstantial evidence the circumstances need not be absolutely conclusive of guilty [sic], and they need not demonstrate impossibility of innocence. . . . The mere existence of other possible hypothesis is not enough to remove the case from the jury,” State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970).

Each case of circumstantial evidence is to be considered upon its peculiar facts and circumstances. However, the cases of State v. Ross, 507 S.W.2d 348 (Mo.1974); State v. Fields, 442 S.W.2d 30 (Mo.1969); and State v. Boothe, 364 S.W.2d 569 (Mo.1963) are persuasive. We hold that the evidence meets the required tests and is sufficient to support the conviction.

The defendant claims error in the admission in evidence of the shoe because a proper chain of custody was not established. Jones testified the shoe in front of the machine shed was picked up by Deputy Morris A. Candlish. Candlish testified he marked the shoe with the initial of his first name and gave it to Investigator David Tatum on April 7, 1975. Tatum testified Candlish gave him the shoe on April 10, 1975 and had marked it by his initials. Defendant seizes upon the difference in dates as a break in the chain. The shoe does bear the initial M. and initials D. T. The identification of an exhibit need not be wholly unqualified. The shoe was sufficiently identified for consideration by the jury. State v. McKinney, 554 S.W.2d 488 (Mo. App.1977).

Defendant urges error in giving mandatory MAI-CR 1.02. He raised his objection by a motion in limine and has preserved that objection. The portion of MAI-CR 1.02 he finds offensive reads:

“The defendant denies the charge. Thus, an issue of fact has arisen which must be decided by a jury, subject to instructions concerning the law which the court will give to the jury.”

The defendant offered an alternative— “The defendant has pleaded not guilty. Thus issues of fact have arisen which must be decided by a jury.”

Defendant correctly asserts that he has not entered a denial but a plea of not guilty. He asserts by the use of the words “defendant denies the charge” a jury would expect to hear from the stand evidence of that denial and draw an unfavorable inference from its absence. He also asserts that since there are two charges confusion will result from reference to “the charge” and “an issue” of fact.

The instructions are to be considered as a whole, including the following portions of other instructions:

“The fact that the defendant has been charged with an offense is not evidence, and it creates no inference that any offense was committed or that the defendant is guilty.” MAI-CR 2.20.
“The defendant is charged with two separate offenses: burglary and, also, stealing in connection with the burglary. Each of those two charges and the evidence and law applicable to them should be considered separately. ...” MAI-CR 2.74.
“You must not single out certain instructions and disregard others . . . .” MAI-CR 2.03.

The Supreme Court has directed that the trial court shall give MAI-CR 1.02. Even if we were inclined to do otherwise, which we are not, we certainly do not find the trial court erred in following this direction. Further, considering all of the instructions we do not find MAI-CR 1.02 to be reasonably subject to the finely drawn criticisms offered by the defendant. To the contrary, we find MAI — CR 1.02 meaningfully and fairly instructed the jury.

The point raised by defendant in regard to the proof required under the Second Offender Act is not apt to occur in a second trial. We find it unnecessary to consider the point.

The defendant’s final assertion of error presents a difficult and to this date little developed point of law which was thrust upon the learned trial judge under the exigencies of trial. That point arose in the following manner. The state offered and there was received in evidence the shoe found in front of the machine shed. After the state rested the defendant offered to put on that shoe to demonstrate that it was obviously too large for the defendant. The state objected unless the defendant was sworn as a witness. The offer was refused.

A succinct statement of the question to be considered by this court is: Should the defendant have been permitted to put on the shoe before the jury without being sworn as a witness? Or, stated in another way, had the defendant put on the shoe before the jury would he have waived the privilege against self-incrimination?

The history of the privilege against self-incrimination is well known. 8 Wigmore, Evidence, § 2250 (McNaughton rev. 1961). It is embodied in the 5th Amendment to the Constitution of the United States which in part reads as follows:

“No person . . . shall be compelled in any criminal case to be a witness against himself, . . . ” U.S.Const. Amend. V.

The 5th Amendment is applicable to proceedings in the state courts. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); State ex rel. Howard v. Allison, 431 S.W.2d 233 (Mo.App.1968). The privilege finds similar expression in Mo.Const. Art. I, § 19; § 546.270, RSMo 1969.

First, we are confronted with the question of whether or not the defendant could be compelled to be sworn before invoking the privilege of the 5th Amendment. If so, the trial court was correct. It is axiomatic that one summoned as a witness may be required to be sworn before seeking the protection of the 5th Amendment. State v. Phillips, 511 S.W.2d 841 (Mo.1974); State v. Yager, 416 S.W.2d 170 (Mo.1967); 81 Am.Jur.2d, Witnesses, § 36. The same is true of a lawyer who is the subject of disbarment. In re West, 348 Mo. 30, 152 S.W.2d 69 (banc 1941).

We find no authority in this state squarely holding that an accused in a criminal proceeding may not be compelled to be sworn before being extended the privilege of the 5th Amendment. There are numerous expressions to that effect in cases such as State v. Hutchinson, 458 S.W.2d 553 (Mo. banc 1970); State v. Denison, 352 Mo. 512, 178 S.W.2d 449 (1944) and State v. Dean, 400 S.W.2d 413 (Mo.1966).

To extend that right to an accused is within the spirit of the privilege. It is well established that a comment upon the failure of a defendant to testify is barred. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); State v. Howard, 540 S.W.2d 86 (Mo.banc 1976). To require a defendant to be sworn in front of a jury and then invoke the 5th Amendment would be more prejudicial. If a defendant is sworn and testifies he could be impeached by prior convictions. State v. Williams, 525 S.W.2d 395 (Mo.App.1975); State v. Morris, 460 S.W.2d 624 (Mo.1970); State v. Swisher, 364 Mo. 157, 260 S.W.2d 6 (banc 1953), and comment could be made upon his failure to testify concerning incriminating facts, Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917); State v. Stidham, 305 S.W.2d 7 (Mo.1957), aff'd. 449 S.W.2d 634 (1970), which would be equally devastating to a defendant.

The majority of the decisions in other states are to the effect that an accused may not be compelled to be sworn. They have been summarized.

“(a) This being so, the prosecution could nevertheless on principle have a right at least to call him to be sworn because, as with an ordinary witness, it could not be known beforehand whether he would exercise his privilege. But no court has sanctioned this application of the principle. The contrary is universally held.” 8 Wigmore, Evidence, § 2268 2.(a) (McNaughton rev. 1961).
“As already observed, the Fifth Amendment and various state constitutions provide that no person shall be compelled in any criminal case to be a witness against himself. Under this prohibition, the right of an accused not to take the stand as a witness against himself applies only to criminal, quasi-criminal, and penal proceedings, including a proceeding civil in form for forfeiture of property by reason of the commission of an offense, but not a proceeding in which the penalty recoverable is civil or remedial in nature.” 81 Am.Jur.2d, Witnesses, § 32 (1976) at p. 58-59.

We perceive the proper rule to be that an accused may not be compelled to be sworn before being extended the privilege of the 5th Amendment.

The State contends that the offer was properly refused because trying on the shoe would be equivalent to testifying. If that be the case, the State could not have compelled the defendant to try on the shoe. But, it is well established that the protection of the 5th Amendment extends to evidence “testimonial” and not “demonstrative” in nature. State v. Proctor, 535 S.W.2d 141 (Mo.App.1976) and 8 Wigmore, Evidence, § 2263 (McNaughton rev. 1961). Decisions establish that the State may compel a defendant to provide the following demonstrative evidence: Handwriting, State v. Boley, 565 S.W.2d 828 (Mo.App.1978); to walk in the courtroom to display a limp, State v. Proctor, supra; submitting to photographs, Riley v. State, 475 S.W.2d 63 (Mo.1972); courtroom observation, State v. Jackson, 444 S.W.2d 389 (Mo.1969); to speak, State v. Cook, 440 S.W.2d 461 (Mo.1969); to try on a hat, State v. Dean, supra. The Supreme Court of the United States has recognized the distinction and approved the following: trying on a blouse, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); putting tape on face and speaking, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 1149 (1967); handwriting, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Rule 25.35(B) makes provision for the state to require the defendant to provide many specified examples of demonstrative evidence, including “Try on articles of clothing.”

There is a dearth of authority on the subject. Counsel for the parties profess their inability to find a case in point. Our research has unearthed five cases. In People v. Harris, 46 Ill.2d 395, 263 N.E.2d 35, 37 (1970), the defendant wanted to display his peculiar teeth to the jury to establish he was not the guilty party. The request was refused and the Court said:

“As to appellant’s argument that he should have been permitted to exhibit his teeth to the jury in a certain manner, without waiving his fifth-amendment privilege against self-incrimination, we find no merit in this argument.”

In Machin v. State, 213 So.2d 499 (Fla. App.1968), the defendant offered to run to establish he did so without a limp and the offer was refused unless the defendant submitted to cross-examination. The Court said this would be a form of testimony and cited Odom v. State, 109 So.2d 163 (Fla.1959) and Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926). Odom dealt with a waiver by verbal testimony and Raffel held that by taking the stand a defendant waives the privilege and is subject to proper cross-examination and that comment could be made upon his failure to testify concerning incriminating facts.

In State v. Mayer, 154 Wash. 667, 283 P. 195 (1929), the defendant wrote his name in the presence of the jury and the court held that he had in effect testified and therefore the trial court was not required to give an otherwise mandatory instruction that there was no inference of guilt if the defendant did not testify.

The question has been more thoroughly and persuasively analyzed by the United States Court of Appeals, Third Circuit. United States ex rel. Fioravanti v. Yeager, 404 F.2d 675 (3 Cir. 1968), cert. den. 396 U.S. 860, 90 S.Ct. 131, 41 L.Ed.2d 112 (1969) presented a case in which the defendant had tried on a pair of pants to demonstrate they did not fit. The trial court then commented to the jury that the defendant had failed to deny other major evidence against him. The court held the action of the defendant was testimonial and the charge to the jury correct.

A similar question was before the same court in United States ex rel. Mitchell v. Pinto, 438 F.2d 814 (3 Cir. 1971), cert. den. 402 U.S. 961, 91 S.Ct. 1622, 29 L.Ed.2d 124. In that case the defendant at the request of counsel had risen from his seat and stood by a witness to demonstrate a resemblance. The trial court then told the jury the defendant’s failure to testify might be considered as evidence against him. The court found this comment to be condemned by Griffin v. California, supra, and the action of the defendant to be demonstrative and not testimonial and he did not thereby waive the 5th Amendment. To the extent of the inconsistency, it declared Fioravanti should not be followed. In so holding the court said:

“In the present case, the prosecution would clearly have had the right, if it so desired, to require Mitchell to rise from his seat and stand next to the witness then under cross-examination for comparison by the jury. The Self-Incrimination Clause would not have precluded such compulsion precisely because the evidence compelled was not testimonial or communicative. By the same token, voluntary participation by a defendant in such non-testimonial conduct cannot properly be analogized to such testifying as occurred in the Caminetti case.” United States ex rel. Mitchell v. Pinto, supra.

A defendant may not be coerced into a waiver of the privilege nor compelled to waive it by improper conditions. Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973); Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977).

In civil actions a party does not waive a privilege by putting on evidence outside the scope of a privilege. Deadman’s statute, Saupe v. Kertz, 523 S.W.2d 826 (Mo.banc 1975); husband-wife privilege, Revercomb v. Revercomb, 222 S.W. 899 (Mo. App.1920); attorney-client, Simmons v. Universal Life Ins. Co., 227 Mo.App. 1238, 61 S.W.2d 382 (1933). The filing of a motion under Rule 27.26 alleging the ineffective assistance of counsel is not a total waiver of the attorney-client privilege. “Appellants concede that trial counsel may testify at 27.26 hearings when the issue pertains to effective assistance of trial counsel, Hand v. State, Mo., 447 S.W.2d 529, State v. Rose, Mo., 440 S.W.2d 441, but say that the waiver of privilege does not extend to all matters within the ambit of the attorney-client relationship, and we agree with this general proposition.” Veneri v. State, 474 S.W.2d 833, 840 (Mo.1971).

It is clear that if the state had desired it could have compelled the defendant to try on the shoe without being sworn and waiving the privilege of the 5th Amendment. It is only fair that when the defendant desired to try on the shoe he should have been permitted to do so without being sworn and waiving the privilege of the 5th Amendment.

While we do not profess to know if the shoe would have fit or the effect of the tendered demonstration upon the jury, it is fundamental that the defendant must be permitted to present competent, material evidence in his defense. State v. Brown, 543 S.W.2d 56 (Mo.App.1976). The state placed the shoe in evidence. It was obviously an important link in its case.

The defendant attempted to refute an inference the shoe was his by trying the shoe on. The general rule concerning explanatory evidence has been stated:

‘Explanatory evidence. As a general rule, evidence explaining evidence previously introduced, or showing that the inference arising or sought to be drawn therefrom is not warranted, is admissible; * * * . This rule is especially applicable where accused seeks to explain incriminating evidence introduced by the state, and applies even though the evidence sought to be explained was improperly admitted. Common illustrations of the rule are found in the reception of evidence * * * of flight, of the commission of other offenses * * * State v. Campbell, 533 S.W.2d 671, 675 (Mo.App.1976) quoting 22A C.J.S. Criminal Law § 601 at pp. 404-406.

The demonstrative explanatory evidence was relevant and its exclusion in this case was prejudicial error. We must reverse and remand the case for a new trial.

BILLINGS, P. J., and HOGAN, J., concur.

      . An instruction to that effect was approved in Caton v. United States, 407 F.2d 367 (8th Cir. 1969).


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    Henry SHANNON, Employee, Respondent-Appellant, v. ST. LOUIS BOARD OF EDUCATION, Employer, and Home Indemnity Company, Insurer, Appellants-Respondents.
    Nos. 39653, 39596.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 14, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.
    Application to Transfer Denied April 10, 1979.

      Edward M. Vokoun, Evans & Dixon, St. Louis, for employee, respondent-appellant.
    Jack Randall, St. Louis, for employer.
   CRIST, Judge.

A Workmen’s Compensation case.

We adopt by reference the standards of judicial review as contained in Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 52-53 (Mo.App.1975).

Employer-insurer appeals from a judgment of the circuit court affirming the finding of the Industrial Commission that employee was injured in an accident arising out of and in the course of his employment. Employee also appeals from the same judgment whereby the circuit court reversed the Industrial Commission and held that the employer is entitled to a credit for wages in the amount of $565.00.

Employee was employed by the St. Louis Board of Education in 1969 as a counselor assigned to Central High School when Dr. Richard Stumpe, President of the Harris Teachers College (hereinafter referred to as “Harris”) approached him asking him to join the faculty of Harris, a unit of the St. Louis Board of Education. Harris was then attempting to upgrade the percentage of doctorate degrees at the urging of the North Central Association and to secure more funds for its operation from the legislature. Pursuant to that goal employee was asked to and did sign a “Statement of Understanding” which provided in part as follows:

“STATEMENT REGARDING CONDITIONS OF EMPLOYMENT FOR HENRY SHANNON AT HARRIS TEACHERS COLLEGE FOR THE 1972-73 ACADEMIC YEAR (SEPTEMBER 4, 1972 through JUNE 8, 1973).
It is understood that this document is not a contract, but merely a ‘statement of understanding’ of the major conditions of my employment. .
It is understood that this is not a permanent appointment. The tenure is with the School System and not with Harris Teachers College. It is understood that reassignment to another position within the School System is possible. .
It is understood that a doctor’s degree in the field of my work at Harris Teachers College will be acquired by September 1, 1977 or that my employment at Harris Teachers College will not extend beyond that date.
It is understood that this is a ‘full-time’ position and that the usual faculty responsibilities are applicable.”

Neither Harris nor the St. Louis Board of Education specified which college he was to attend, but employee was advised that Harris already had too many PhDs from St. Louis University. He enrolled in a three hour course in counseling as a graduate student at Washington University. He worked out a schedule so that he would be able to attend classes and still work as a full time faculty member of Harris. He was not required to make up the time he spent in class. He used his own vehicle for transportation to and from classes, paid for his own tuition, and purchased his own textbooks and materials. None of these expenses was reimbursed by the St. Louis Board of Education. His hours of employment at Harris were 8:00 a. m. to 5:00 p. m. His employment at Harris was covered by Workmen’s Compensation.

His progress was monitored by his employer in that the Chairman of the Counseling Department at Harris supervised him and gave him permission to tape-record sessions with students at Harris for use in his course work at Washington University.

Employee sustained injuries at approximately 2:45 p. m. on December 12, 1972. Due to icy weather, all classes at Harris had been canceled for the day. He drove from his home to the Washington University campus to attend the three horn* session beginning at 3:00 p. m. and ending at 6:00 p. m. As he was leaving Umrath Hall, after looking unsuccessfully for two advis-ors, he slipped and fell on an ice-covered sidewalk on the Washington University campus. He had eaten, but was on his way to the cafeteria to purchase a sandwich to take to class. It was customary for the students to do so, since it was a three hour class. When he fell, he was carrying books and a ten-inch tape on counseling which he had made with a student from Harris and which he intended to use in his graduate school class. The cafeteria was in a direction opposite to that of the building in which his class was to be held.

After his injury, he continued to draw his regular pay at the rate of $45.00 per day while he was off work from December 13, 1972 to January 4, 1973. He was paid for 17 days or a total of $765.00 while performing no services for the St. Louis Board of Education at Harris. However, two weeks pay was vacation pay and amounted to the sum of $450.00. His loss of time, in part, coincided with the Harris paid vacation period.

Was there a work-connected injury? Was the taking of the college course at Washington University sufficiently related to his employment? Was he compelled, either directly or indirectly, to take the counseling course? Did the employer derive some benefit from his taking such course? Did the employer control or participate in the activity? The presence or absence of any one of such factors may or may not be determinative. The significance of each factor must be considered in the totality of the circumstances presented. See Riggen v. Paris Printing Co., 559 S.W.2d 625, 630 (Mo. App.1977).

The first question is whether employee was compelled to pursue studies to obtain his PhD degree as a condition of his continued employment with Harris. If employee was compelled to pursue studies to obtain his PhD degree, and if there was a mutual benefit, even though the greater benefit may have been to the employee, he would, nevertheless, have been engaged in an activity incident to his employment at the time of the injury. Wamhoff v. Wagner Electric Corp., 190 S.W.2d 915 (Mo. banc 1945); Lampkin v. Harzfeld’s, 407 S.W.2d 894 (Mo.1966).

The Industrial Commission could reasonably have found that employee was employed by Harris and the St. Louis Board of Education and was compelled to obtain his PhD in accordance with their understanding. There was a benefit to the employer in maintaining a quality faculty so that it would remain accredited by North Central Association. The number of PhDs on the faculty also made a good impression on the legislature insofar as funding was concerned. There was an element of control in that employer’s Chairman of the Counseling Department supervised employee’s progress at Washington University. Employer permitted employee to take time off from his usual hours of work to attend classes.

Employer-insurer relies on McQuerrey v. Smith St. John Mfg. Co., 216 S.W.2d 534 (Mo.App.1948). In McQuerrey, the court did not believe that the employee’s “off premises” injury occurred at a place where his employment required him to be, nor did the employer exercise any supervision or control over the employee’s work. The injury occurred during nonworking hours. Most importantly, the court concluded that the employee's outside activity did not provide any benefit to the employer. McQuer-rey is not controlling.

We hold that upon the whole record the Industrial Commission could reasonably have found that employee was compelled to take the counseling course and was employed by Harris and the St. Louis Board of Education at the time of the fall. We must now determine whether employee was engaged in a work-related activity at the time of his fall.

Employer-insurer relies on Kammeyer v. Board of Education, 393 S.W.2d 122 (Mo.App.1965) where an elementary teacher was injured on the ice when she fell outside the school premises when she was returning one evening to attend a school function. Kam-meyer can be distinguished. Employee therein was on her way from home and had not reached the school.

Employee would normally leave Harris during his regular working hours to go to Washington University for his 3:00 o’clock class. The fact that Harris was not in session on that particular day was not the fault of employee. He had arrived at the Washington University campus. He had entered a University building to locate an advisor. He was enroute to class. He intended to pick up a sandwich as he normally did before class. He was carrying books and a Harris counseling tape. The fall occurred during regular working hours for which he was paid. Since the work of employee created a necessity for travel from Harris to class at Washington University, even though at the same time he was serving some purpose of his own, in going to the cafeteria, he was engaged in a work-related activity at the time of his fall under the “dual purpose doctrine”.

The “dual purpose doctrine” is that if the work of an employee creates a necessity for travel, in this case from Harris to class, he is in the course of his employment while doing that work even though at the same time he is serving some purpose of his own. Corp. v. Joplin Cement Co., 337 S.W.2d 252 (Mo. banc 1960); Snowden v. Orscheln Brothers Truck Lines, Inc., 446 S.W.2d 494 (Mo.App.1969); and Begey v. Parkhill Trucking Co., 546 S.W.2d 529 (Mo. App.1977). Further, the trip to the University cafeteria could be reasonably anticipated as “incident” to employee’s academic responsibilities which required attendance at a three hour class which extended into the dinner hour. See Daniels v. Krey Packing Co., 346 S.W.2d 78, 83 (Mo.1961); Kunce v. Junge Baking Co., 432 S.W.2d 602, 609 (Mo.App.1968).

We find the mutual benefit and dual purpose doctrines applicable to this case. Accordingly, we hold that employee was about his employer’s business at the time of his fall and sustained an accident arising out of and in the course of his employment.

Employee contends it was error for the the circuit court to order that employer was entitled to credit for wages paid in the sum of $565.00. For the reason that $450.00 of the amount credited was for vacation pay, the circuit court’s finding was contrary to § 287.160-3 RSMo.1969 which provides that an employer is entitled to credit for wages paid after the injury or in cases where the payment was made on account of the injury. Vacation pay would would not be wages paid after the injury or on account of the injury and thus may not be credited against the amount of compensation payable. Point v. Westinghouse Electric Corp., 382 S.W.2d 436, 439 (Mo.App. 1964); Cowan v. Southwestern Bell Telephone Co., 529 S.W.2d 485 (Mo.App.1975).

That part of the judgment of the circuit court affirming the Industrial Commission in finding that the accident arose out of and in the course of the employment is affirmed. That part of the judgment of the circuit court wherein it permitted credit to the employer in the sum of $565.00 is amended so that employer shall be entitled to a credit of $115.00.

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


text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerry Paul EASTON, Defendant-Appellant.
    No. 10822.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 16, 1979.
    Motion for Rehearing or Transfer to Supreme Court Denied March 8, 1979.
    Application to Transfer Denied April 10, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Kirby W. Patterson, Springfield, for defendant-appellant.
   MAUS, Judge.

This sordid tale involves an armed robbery of, an act of sodomy on, and an attempt to murder the 70 year old proprietress of a motel in Springfield, Missouri. Two young men, defendant and one David Rezabek, set in motion the events which culminated in these degenerate acts. After consolidation, the defendant was tried upon an amended information charging him in separate counts with these three offenses. He testified in his own defense and admitted his participation in the robbery, but denied his involvement in the sodomy and attempted murder. The jury found the defendant guilty on all counts and fixed his punishment as follows: armed robbery — 50 years; sodomy — 25 years; attempted murder — 10 years. He was sentenced in accordance with the verdicts, to run consecutively. The defendant asserts error in the consolidation for trial and joinder of the three offenses, the instructions and attacks the sufficiency of the evidence to support the instructions on sodomy and attempted murder. The latter requires a summary of the evidence, which in view of the verdicts will be reviewed most favorably to the state, with all reasonable inferences therefrom. State v. Sloan, 548 S.W.2d 633 (Mo.App. 1977).

One of the principal factual disputes involves the identity of which of these two men personally committed the act of sodomy and attempted murder. They are remarkably similar in appearance, each about 5'9" tall, weighing 160 pounds, with light brown or blond hair. The witnesses agreed they looked alike. Pictures before this court also establish that to be true.

The victim testified that on May 14,1977, at approximately 10:15 p. m. a young man with a cap entered the motel office and after a pretense of inquiring about a room stuck a gun in her side. (This person will be referred to as the attacker). The attacker took the lead throughout the affair. About this time, another man, appearing to be unarmed, entered. (This person will be referred to as the second man). The second man upon instructions from the attacker went outside to turn off the vacancy sign. They then took money from her business billfold. She was then escorted to her adjoining living room. Her hands were tied behind her back. The attacker told the second man to get more tape. The second man replied that was all they had. More money was taken from her personal billfold. She was then ordered to the bedroom and told to lie down. The attacker directed the second man to cut the phone cord. The second man did so and used it to tightly tie her legs at the ankles. She was then gagged with Kleenex from her dresser and tape. She did not know who did this. The attacker then tore off her clothes and manually sexually abused the victim. During this time the second man was going through the jewelry boxes on the dresser in the same room. The attacker asked if he got any and the second man replied “some”. The attacker said the victim was not cooperating and directed the second man to “get the ether”. She did not know if the second man left. The gag was removed and the attacker then forced the victim to commit an unsuccessful act of oral sodomy. When the victim got sick the attacker told her because she did not cooperate he would have to kill her. The attacker called for more Kleenex. Three wads of tissue were placed in her mouth and she was re-gagged. The attacker then smothered her with a cloth toilet seat cover until she lost consciousness. Two guns were introduced in evidence, a .22 and a 9mm. She identified the 9mm as looking more like the gun used by the attacker. On cross-examination, she admitted it was possible the companion left the room and came back with the Kleenex. It was established the total time involved was 20 to 30 minutes.

On identification: At the trial the victim stated she did not know which of the two men was the attacker. She did state the attacker was the one with the gun and with the cap. Defendant and Rezabek were apprehended in Collinsville, Illinois, on May 16, 1977. On May 17, 1977, officers took the victim to Collinsville where out of five pictures she identified pictures of defendant and Rezabek and made a definite statement that defendant was the attacker and Reza-bek was there and assisted to some extent. However, at defendant’s preliminary hearing held June 23,1977, she stated defendant came in second, he went out to see about the sign, the other was the leader, and that defendant was not the one that assaulted her. Before the trial opened she picked the picture of Rezabek as the attacker. The victim was characterized as forgetful. She was nervous and upset at the preliminary hearing. At the trial she could not identify a picture of the defendant who was then seated in the courtroom.

When apprehended, defendant attempted to flee with the 9mm gun in a shaving kit. Rezabek attempted to flee with the .22 in his waistband. On May 17, 1977, defendant stated to the officers he participated in the robbery, was armed with the 9mm gun, planned the robbery and was the leader.

Defendant testified both guns were in his possession before the robbery. During the robbery Rezabek had the 9mm and used it. The .22 was in defendant’s waistband and not used. He stated Rezabek was wearing a cap and went in first. He turned on the no vacancy sign. When they went into the living room, he tied her hands with tape and then went to the car for more which he did not find. On his return, per Rezabek’s instructions, he cut the phone cord and tied her feet. He then went to the car and waited 4 or 5 minutes for Rezabek. He didn’t go back because he was afraid of what he might find; Rezabek had been known to bust things up. He denied the sexual attack and smothering. He said Re-zabek told him a few hours after the incident the victim had been “messed up a little”, but didn’t learn of the sexual attack until after he was arrested. He first denied that he gave the officers in Collinsville an alias, but on further cross-examination admitted he did. He first said he didn’t know if he told the officers he had the 9mm gun at the time of the robbery because he was high on marijuana. Then he testified “what I said the day before I stuck to for fear of making things worse than the pot”. He also testified he said he had the 9mm because he didn’t know of the sexual attack.

The defendant does not question the power of the court to consolidate these offenses for trial. State v. Williams, 554 S.W.2d 524 (Mo.App.1977). Rule 24.04 reads as follows:

“All offenses which are based on the same act or on two or more acts which are a part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count when authorized by statute. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees.” V.A.M.R. Crim. Rule 24.04.

The rule has been approved against constitutional attack. Severance before and during trial is within the discretion of the trial court. State v. Baker, 524 S.W.2d 122 (Mo. banc 1975); State v. Duren, 556 S.W.2d 11 (Mo. banc 1977).

The defendant, with due respect for the trial judge, fervently asserts the trial court abused its discretion in consolidating the offenses of armed robbery, sodomy and attempted murder. The basic thrust of his claim of error is that he received a greater punishment for the confessed offense of armed robbery than he would have received had not that offense been joined with what he terms the more heinous offenses of sodomy and attempted murder. As a secondary attack, he asserts he was found guilty of the disputed offense of sodomy and attempted murder on questionable evidence because those offenses were joined with the admitted offense of armed robbery.

His assertions are premised upon speculation concerning the inner thoughts of the jury and their inability to follow the instructions of the court. Defendant’s assertions are easily countered by contrary speculations. Had the defendant been charged separately, in the absence of the imposition of a 50-year sentence for armed robbery, a jury could well have awarded a 50-year or greater sentence for sodomy. The same person committed the sodomy as committed the attempted murder. Any speculation that the 25-year sentence for sodomy resulted from doubt about the identity of the perpetrator is quickly dispelled by the maximum punishment of ten years given by the jury for attempted murder.

Defendant also claims an abuse of discretion in joinder because the trial of defendant for armed robbery would have been a simple trial requiring only his confession. He overlooks his plea of not guilty to this charge. His non-judicial admission of robbery could have been recanted, requiring two full blown trials. Had defendant really wanted a separate trial for sodomy and attempted murder, this would have resulted from a guilty plea to armed robbery. Because his strategy in the trial court was not satisfactory, he should not now be heard to complain.

The jury was instructed that each offense and the evidence and law applicable to it should be considered separately. We must consider that they followed their instructions. See State v. Minor, 556 S.W.2d 35 (Mo. banc 1977). Joinder of the following offenses has been approved: armed robbery and assault with intent to kill, State v. Neal, 514 S.W.2d 544 (Mo. banc 1974); murder and robbery, State v. Baker, supra, 524 S.W.2d 122; rape and robbery, State v. Morgan, 539 S.W.2d 660 (Mo.App.1976); State v. Perkins, 543 S.W.2d 805 (Mo.App.1976). State v. Prier, 561 S.W.2d 437 (Mo. App.1978) cited by defendant involved three separate drug sales to the same officer over a period of three months and is not applicable to the facts of this case. Broader join-der is encouraged. State v. Williams, supra, 554 S.W.2d at 524. The defendant has not demonstrated that the trial court abused its discretion in joinder of those three offenses which occurred within 20 minutes and we find that it did not. State v. Duren, supra, 556 S.W.2d 11; State v. Lee, 556 S.W.2d 25 (Mo. banc 1977). Also see United States v. King, 453 F.2d 9 (1st Cir. 1972).

In his brief defendant makes the general point that the instructions did not properly set out the elements of the offenses and were confusing and misleading to the jury. The defendant does not specify in what respects the instructions do not set forth the elements of the offenses. We have examined the instructions against this general assertion and find no error. Defendant’s argument that the instructions are confusing is directed to the instructions concerning sodomy and attempted murder. While this point is not made with the required specificity, State v. Watson, 511 S.W.2d 890 (Mo.App.1970), it will be considered.

By Instruction No. 6 the trial court told the jury it could find the defendant guilty of sodomy if it found, first, “the defendant or another” committed the act of sodomy; and second, “that the defendant acted either alone or knowingly and with common purpose together with another” in the conduct referred to in the above paragraphs. A similar instruction was given in regard to the attempted murder. The gist of defendant’s complaint seems to be that these instructions permit the jury to find the defendant guilty if he personally committed the acts or acted jointly with the one who did and that such an alternative submission is error.'

By reason of § 556.170, RSMo 1969, the distinction between principals in the first degree, accessories before the fact and principals in the second degree has been abolished. One may become liable as a principal by aiding or abetting another or by acting with another in the actual commission of the offense. State v. Bolden, 473 S.W.2d 355 (Mo.1971). In this case the state by instructions submitted that defendant committed the offenses or was an active participant in the offenses.

In the information, the defendant was charged as a principal. It is proper to submit active participation or aiding and abetting even though he was so charged. State v. Butler, 534 S.W.2d 832 (Mo.App.1976); State v. Braddock, 558 S.W.2d 776 (Mo.App. 1977); State v. Spica, 389 S.W.2d 35 (Mo. 1965), cert. den. 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966); State v. Lunsford, 331 S.W.2d 538 (Mo.1960).

Defendant is critical of the use of the word “another” in the first and second paragraphs of the instructions. The state could have used instead the name David Rezabek. However, the use of the term “another” is permitted by MAI-CR 2.12. There were only two persons at the scene and the jury could not have been misled as to the person referred to in the instructions as “another”. There was no error in the use of this term. State v. Amrine, 548 S.W.2d 244 (Mo.App.1977); State v. Johnson, 510 S.W.2d 485 (Mo.App.1974); State v. Johnigan, 494 S.W.2d 23 (Mo.1973); State v. Bolden, supra, 473 S.W.2d 355.

Defendant insists that for the defendant to be properly found guilty as a joint participant or an aider and abettor there must have been evidence of his intent that the offenses be perpetrated and this issue submitted to the jury. In this he is correct. State v. Grebe, 461 S.W.2d 265 (Mo. banc 1970). The evidence of defendant’s intent will be dealt with later. By the verdict directing instructions the jury was required to find the defendant acted knowingly and with common purpose. The court also gave Instruction No. 10 which was MAI — CR 2.10. This was sufficient. State v. Macon, 547 S.W.2d 507 (Mo.App.1977); State v. Johnson, supra, 510 S.W.2d 485.

Returning to the defendant’s underlying complaint of the alternative submission, such an instruction is proper and indeed necessary where it is not known which of several persons committed the ultimate physical act. Such a submission is authorized in MAI-CR 2.12. By the instruction the jury was required to find either one set of circumstances or another, under either of which the defendant would be equally guilty. A similar instruction has been approved with the following comment:

“Even though the evidence tended to prove that the defendant was the actual killer, it is not inconsistent or misleading for the state to instruct on the theory that the defendant was an aider and abettor as well as the actual killer because the greater participation in the offense includes the lesser and the legal effect is the same.” State v. Lunsford, supra, 331 S.W.2d at 541. Also see State v. Davis, 506 S.W.2d 33 (Mo.App.1974).

There was no error in this instruction.

Of course, since the state submitted on alternative theories, there must have been evidence to support each theory. Concerning the evidence tending to show the defendant as the principal actor, three days after the event the victim, without equivocation, identified the defendant as her attacker. She later was unable to do so, but her initial identification is some evidence of his guilt. People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960). The victim never wavered in her testimony that her attacker was the man with the gun, the leader. She identified the 9mm as the gun used. The defendant admitted his use of the gun and that he was the leader. The jury could consider as even more damning his elusive, contradictory testimony attempting to evade his admissions. The jury could believe such of defendant’s testimony as it chose, State v. Pinkus, 550 S.W.2d 829 (Mo.App.1977), and could have found defendant was the principal actor.

To establish the defendant’s responsibility as a joint principal, it is not necessary for the state to establish that he personally committed each act involved in the offense. “The presence of the accused at the place of the commission of a criminal offense may be considered along with other incriminating evidence to determine if the total circumstances raise a reasonable inference that the accused was a participant or an aider or abettor in the crime.” State v. Cobb, 444 S.W.2d 408, 412 (Mo. banc 1969). It is sufficient that he affirmatively did some act. “Evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction.” State v. Cobb, supra, 444 S.W.2d at 412; State v. Johnson, supra, 510 S.W.2d at 485.

Nor is it necessary that the state establish the defendant’s intent as a joint principal by direct evidence of that intent. Such intent may be inferred. State v. Sloan, 548 S.W.2d 633 (Mo.App.1977).

The jury could have found the defendant was a joint principal based upon the following facts which a jury could find and infer from the evidence. The defendant planned the robbery; he accompanied the victim to the bedroom; while she was on the bed he tied her ankles tightly; he remained in the room during the sexual attack; his presence lent coercive effect to the attacker’s threat to get the ether, after the sodomy and after the attacker said he would have to kill the victim because she didn’t cooperate, he handed the attacker additional Kleenex with which the victim was gagged, and immediately thereafter the attempted smothering took place. All of this was indicative of his willingness to participate and aid in the assault upon the victim.

In addition, the evidence of defendant’s and Rezabek’s activities before and after the offenses was a substantial basis for the inference of participation and criminal intent. “Presence, companionship and conduct before and after the offense are circumstances from which a defendant’s participation in the criminal intent may be inferred.” State v. Johnson, supra, 510 S.W.2d at 489.

The defendant was earnestly and ably represented by appointed counsel at the trial and by different appointed counsel on appeal. He was accorded a fair trial. The judgment is affirmed.

BILLINGS, P. J., and HOGAN, J., concur.


author: PALMORE, Chief Justice.

text:
    Victor E. COMLEY, Appellant, v. COMMONWEALTH of Kentucky, Franklin Circuit Court and Honorable Henry Meigs, Judge, Appellees.
    Supreme Court of Kentucky.
    Feb. 6, 1979.
    Clifford E. Smith, Jr., Smith & Duff, Frankfort, for appellant.
    Irwin G. Waterman, Allan Weiss, Morris, Garlove, Waterman & Johnson, Louisville, for appellees.
   OPINION AND ORDER

PALMORE, Chief Justice.

This is an appeal as a matter of right from an order of the Court of Appeals of Kentucky denying appellant’s petition for a writ of prohibition.

There being no showing that appellant will not have an adequate remedy by appeal from the Franklin Circuit Court, the action of the Court of Appeals in denying prohibition is correct, and its judgment is affirmed.

AKER, CLAYTON, LUKOWSKY, REED, STEPHENSON and STERNBERG, JJ., sitting.

All concur.


author: /s/ John S. Palmore Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Clinton R. BURROUGHS, Respondent.
    Supreme Court of Kentucky.
    Feb. 6, 1979.
    Leslie G. Whitmer, Director, Michael M. Hooper, Asst. Director, Kentucky Bar Association, Frankfort, for complainant.
    Hershel Wooldridge, Louisville, for respondent.
    Clinton R. Burroughs, pro se.
   OPINION AND ORDER

The following decision of the Board of Governors of the Kentucky Bar Association is hereby adopted pursuant to and in conformity with SCR 3.370(8):

“FINDINGS OF FACT, CONCLUSIONS OF LAW, OPINION AND ORDER OF THE BOARD OF GOVERNORS OF THE KENTUCKY BAR ASSOCIATION

“On or about December 19, 1977, the respondent, Clinton R. Burroughs, was charged with unethical and unprofessional conduct calculated to bring the bench and bar of Kentucky into disrepute,, specific charges being summarized as follows:

I.Respondent entered a trust agreement with a client whereby he managed the client’s funds, and failed to give an accounting.
II.Respondent commingled his personal funds with the client’s funds.
III. Respondent breached his fiduciary duty to his client.
IV. Respondent misappropriated $1,651.30 of his client’s funds.

“The charge was served by registered mail on December 22, 1977. Respondent filed his response on January 10,1978. And a Trial Commissioner was appointed, conducted a hearing, and filed his report. The Report made numerous findings, but no recommendation as to guilt or innocence. The matter was considered by the Board of Governors of the Kentucky Bar Association, which makes the following Findings of Fact, Conclusions of Law, and Order.

“FINDINGS OF FACT

“The Board of Governors finds facts as follows:

1. Respondent had represented Eugene N. Turner on various, petty matters, many of them being in Louisville Police Court, and arising from Turner’s consumption of alcohol. Some time in 1975, Turner received $20,500.00 in settlement of a claim for wrongful death of his father. Fearing that he may squander the money, Turner asked Respondent to hold $17,000.00 as Trustee, and to that end a Trust Agreement was executed. The agreement provided for investment of the corpus and invasion of corpus for Turner’s benefit in the respondent’s discretion. The Agreement was revocable by Turner. It contained no provision for an accounting, but Turner and Respondent agreed orally that Respondent would account in writing as of December 31 of each year.

2. Respondent deposited $17,000.00 as Trustee in a passbook savings account. Thereafter, Turner began a series of demands on Respondent, and Respondent disbursed funds as follows: (1) directly to Turner; (2) to one Wanda Turner, pursuant to Turner’s oral authorization; and (3) to Turner’s creditors.

3. Disbursements to and for Turner were made through an account entitled ‘Clinton R. Burroughs, Attorney’. This was Respondent’s business account, through which his law practice revenue and expenses passed. Respondent would withdraw money from the Trusteed savings account, deposit it in the ‘attorney’ account, and write checks on the attorney account for and on behalf of Turner. The transfer of funds from the savings account to the attorney account did not coincide with the cheeks written to and for Turner. At times, the total of the checks written to and for Turner exceeded the transfers from the savings; at times they were less than the transfer from savings. From this, the Board finds no intent to misuse the funds.

Respondent did not consider the money in the attorney account to be his own (although he legally had title to it) until he transferred it to another ‘personal account’. The Board finds that Respondent did not understand the workings of a trustee account for clients’ money; that Respondent commingled personal funds and clients’ funds, but did so with no intent to defraud.

4. On one occasion Respondent loaned $1,651.30 of Turner’s money to a client, with which to purchase a truck. Although good business precautions were not taken in respect to perfection of a security interest, the loan was repaid with interest, and the Trust Fund profited thereby. Respondent told Turner that the disbursement was to purchase a car for Wanda, which it was not. The check had been written to a car dealer. The Inquiry Tribunal found, and the Board has no reason to doubt, that Respondent forgot why he had written the check and when asked, erroneously thought that he had purchased a car for Wanda.

5. On one occasion Respondent noted on Trust account records an investment of $3,500.00 in ‘XYZ Corporation’. It later developed that XYZ Corporation was, in fact, Computerland, Inc.,; that Respondent has shied from the investment and never withdrawn any money from the savings account for it. No explanation was given for using the fictitious name ‘XYZ Corporation’, or for entering the investment on the Trustee account records; however, this was no misappropriation or imprudent investment. It was no investment at all.

6. No accounting was rendered in 1975 because the number of transactions in 1975 was insignificant. In January, 1977, Respondent gave Turner an accounting for 1975 and 1976, which is accurate except for a $100.00 mistake in subtraction, and except that Respondent did not credit himself with cash payments totaling $498.98 he had made on Turner’s behalf.

7. On May 17, 1977, respondent gave Turner a check for $1000.00 marked ‘Final Draw’. Turner knew that more money should be in the account. Ultimately, a corrected accounting was made, and $3,233.40 remained in Trust. Turner received $1,616.70 as a final distribution, and Respondent took $1,616.70 as a fee for services rendered. No complaint is made that Respondent’s fee was excessive. Although the record is not clear, one gathers that Respondent’s fee included charges for various legal representations as well as handling the Trust.

“CONCLUSIONS OF LAW

“The Board makes conclusions of Law as follow:

1. Respondent did not fail to give an accounting.
2. Respondent commingled his funds and his client’s funds.
3. Respondent breached no fiduciary duty to his client.
4. Respondent misappropriated no money of his client to his own use.
5. Respondent is guilty of unethical and unprofessional conduct calculated to bring the bench and bar of Kentucky into disrepute.

“DISCUSSION OF PUNISHMENT

“A majority of nine found no intention to defraud on the part of Burroughs. They considered him to be misguided, and were concerned that he did not know the mechanics of a Trustee Account. They were impressed by the exasperating nature of handling Turner’s affairs. Therefore, they considered a public reprimand to be appropriate.

“Other members of the Board of Governors considered Respondent’s conduct to warrant greater punishment. Particularily, they believed that the final accounting had to be dragged out of him, and there was some belief that he would have kept the final $3,200.00 if he had not been confronted.

“ORDER

“The Board concludes that Respondent has been found guilty as charged and recommends that Respondent, Clinton R. Burroughs, be given a public reprimand and that Respondent be required to pay the costs in this action.

BOARD OF GOVERNORS KENTUCKY BAR ASSOCIATION

/s/ BY_ B. M. Westberry, President”

Entire Court sitting.

All concur.

Entered February 6, 1979.

/s/ John S. Palmore Chief Justice


author: LUKOWSKY, Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Movant, v. Josephine FLETCHER and Carla G. Larence, Respondents. The WESTERN FIRE INSURANCE COMPANY, Movant, v. Elizabeth Jo Ann DOWNS, Respondent.
    Supreme Court of Kentucky.
    Feb. 6, 1979.

      Lee E. Sitlinger, Jr., Hogan, Taylor, Den-zer & Bennett, Louisville, for movant State Farm.
    Philip Taliaferro and Stephen D. Wolnit-zek, Taliaferro, Smith, Wolnitzek & Schachter, Covington, Wayne C. Daub, Louisville, for respondent Fletcher.
    Raymond O. Harmon and William P. Swain, Boehl, Stopher, Graves & Deindoer-fer, Louisville, for Western Fire.
    John M. Lawrence, Bardstown, for respondent Downs.
   LUKOWSKY, Justice.

These cases squarely present the question of the validity of the following provision which has been inserted in these Kentucky No Fault Automobile Insurance Policies,

“(a) any amount payable under the uninsured motor vehicle coverage [UM] shall be reduced by the amount of any personal injury protection benefits [PIP] paid or payable under this or any other automobile insurance policy because of bodily injury sustained by an eligible injured person.”

The trial courts and the Court of Appeals held the provision invalid. We agree, but find it necessary to decide a subsidiary issue not fully examined by the lower courts.

In State Farm Mutual Automobile Insurance Company v. Josephine Fletcher and Carla G. Larence, the Jefferson Circuit Court entered a judgment ordering State Farm to pay Fletcher the sum of $10,000.00 representing UM benefits exclusive of any payments previously made to her under PIP coverage. A jury had awarded Fletcher the sum of $42,740.23 for damages against the uninsured tortfeasor, Larence ($10,740.23 for medical expenses and lost wages, plus $32,000.00 for pain and suffering.) State Farm had two policies covering Fletcher at the time of the accident the second of which afforded PIP coverage. In accord with a pretrial ruling by the trial court that both policies applied to Fletcher and that there could be no reduction of the UM coverage by any payments made under the PIP coverage, judgment was entered against State Farm in the amount of $20,000.00 in addition to the $10,000.00 PIP payments previously made to Fletcher by State Farm. By agreement of the parties, State Farm paid the $10,000.00 UM coverage under the first policy. This appeal involves the $10,000.00 UM coverage under the second policy with no reduction allowed for the PIP benefits paid.

Western Fire Insurance Company v. Elizabeth Jo Ann Downs involves a summary judgment entered by the Nelson Circuit Court. Downs had been paid $6,692.77 under the PIP endorsement of a policy issued by Western. It was stipulated between the parties that Downs incurred damages in excess of $10,000.00 (for medical expenses, loss of income, permanent impairment of power to earn money, pain, suffering and mental anguish without specification of dollar value by category.) Downs filed suit in Nelson Circuit Court to recover the $10,-000.00 under the UM coverage of the policy. Western claims that Downs is only entitled to the difference between what has already been paid to her under the PIP coverage and the $10,000.00 limits under the UM coverage. Downs moved for a summary judgment on this issue; the motion was granted and she was awarded $10,000.00.

KRS 304.20-020(1) requires that automobile insurance policies provide coverage in limits of not less than $10,000.00 each person and not less than $20,000.00 each accident for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death. By its plain terms, the effect of the policy provision in issue here is to reduce the amount payable under UM coverage by the amount payable under PIP coverage in every case. To put it another way, PIP coverage is always set off against UM coverage regardless of the nature and source of the damages for personal injury.

This means that in any case in which PIP is payable less than $10,000.00 UM is payable. This result is repugnant to the mandate of the legislature that not less than $10,000.00 UM coverage be provided. This policy provision is void because public policy will not permit the contract to take away that which the statute requires to be given. State Farm Mutual Insurance Company v. Fireman’s Fund American Insurance Company, Ky., 550 S.W.2d 554 (1977).

However, PIP and UM are not unrelated. They are each a part of the whole scheme of motor vehicle injury reparations. The statutes which create them are in pari materia and must be harmonized.

KRS 304.39-070(2) provides that an insurer which is obligated to pay PIP is subrogated to the extent of its obligations to the rights of its insured against the uninsured tortfeasor. As a result, the insured no longer owns the claim against the uninsured tortfeasor for damages compen-sable under PIP and he is no longer legally entitled to recover them for his own use and benefit. In regard to these items he is a trustee for his PIP insurer. Cf. Louisville and Nashville Railroad Co. v. Mack Manufacturing Corporation, Ky., 269 S.W.2d 707 (1954); Clay, Ky.Prac., 3rd Ed., Civil Rule 17.01, Comments 4 and 5.

In our opinion, the effect of this statute is to prevent double payment of the same dámages — once under PIP coverage and again under UM coverage. Conceptually the UM coverage may be thought of as excess to the PIP coverage. Thus, no award may be made under UM coverage which includes any damages paid or payable under PIP coverage.

We have rejected the proposition that paid or payable damages are to be deducted from the UM award. It is simply that they may not be included therein. Thus, if an insured’s case, evaluated apart from paid or payable damages, is worth the UM limit of liability, that limit must be paid. Hence, in an appropriate case an insured may collect the limits of both the PIP and UM coverages.

The only interdiction is that there be no double recovery for the same items of damage. To reach any other conclusion would frustrate KRS 304.20-020(4), which provides that the UM insurer is subrogated to the extent of its payments to the rights of its insured against the uninsured tortfeasor, by requiring double payment and permitting only single reimbursement from the uninsured tortfeasor.

Applying this rationale to “State Farm” requires that the judgment be affirmed because the record discloses that Fletcher’s non-PIP damages exceed the UM policy limits. By the same process of reasoning, the judgment in “Western Fire” must be reversed because the record does not establish the amount of non-PIP damages and the cause must be remanded to the trial court for the determination of that amount.

The judgment of the Jefferson Circuit Court in “State Farm” is affirmed. The judgment of the Nelson Circuit Court in “Western Fire” is reversed and the cause is remanded for proceedings consistent herewith.

All concur.


text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Movant, v. Deleta BRATCHER, Shedd Bartush Foods, and Workmen’s Compensation Board, Respondents.
    Supreme Court of Kentucky.
    Feb. 27, 1979.

      Cyril E. Shadowen, Dept, of Labor, Louisville, Kenneth F. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for movant.
    Paul K. Murphy, Louisville, for D. Bratcher.
    Armer H. Mahan, Jr., Davis & Mahan, Louisville, for Shedd Bartush Foods.
    William L. Huffman, Frankfort, for Workmen’s Compensation Bd.
   LUKOWSKY, Justice.

Review was granted in this case so that we might examine its bizarre procedural journey through the Court of Appeals. We reverse and remand.

On March 31, 1978 the Court of Appeals rendered an unpublished opinion in this case. None of the parties sought either a rehearing or discretionary review of that decision within the time allowed by CR 76.32 and 76.20. The parties tacitly accepted that unpublished decision as the disposition of this case. Consequently, on May 11, 1978 the mandate of the Court of Appeals enforcing this decision was issued to the trial court.

On May 26, 1978, the Court of Appeals entered the following order:

“The Court, on its own motion, hereby orders that the opinion rendered March 31, 1978, and the mandate issued May 11, 1978, be withdrawn. If, within ten days, no party to this action objects to the new opinion rendered today, the mandate will then issue.”

The new opinion expressed an entirely new basis for the same result. The old opinion disposed of the case on its own peculiar facts. The new opinion amplified this factual examination into a rule of law governing the weight to be given to the testimony of treating physicians. The Court of Appeals directed that the new opinion be published.

By these actions the Court of Appeals arrogated to itself the authority:

1. To reduce the time for filing a petition for a rehearing from twenty to ten days contrary to CR 76.82;

2. To reduce the time for filing a petition for discretionary review from forty to ten days contrary to CR 76.20;

3. To cause a second mandate to issue thirty days early contrary to CR 76.30;

4. To circumvent the publication limitation imposed by CR 76.28.

CR 76.30 permits an intermediate appellate court to recall its mandate in its discretion. The discretion granted by the rule is not an arbitrary or capricious discretion, but an impartial discretion; guided and controlled in its exercise by fixed legal principles. It is not a personal discretion to be exercised by whim. It is a legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. Cf. Workman v. Commonwealth, Ky., 580 S.W.2d 206 (1979).

There is a strong policy of repose which requires that mandates and the opinions which they effectuate carry a heavy seal of finality. Litigation must end some place and this is the logical place to draw the line. Beazley v. Mershon, 69 Ky. (6 Bush) 424, 427 (1869). Consequently, the power to recall mandates should be exercised sparingly and only where special reasons or exceptional circumstances require that action. Hines v. Royal Indemnity Co., C.A. 6th, 253 F.2d 111, 114 (1958). It is not to be used freely for the purpose of revising the substance of opinions even assuming the court becomes doubtful of the wisdom of the decision that has been entered and become final. Estate of Iverson v. Commissioner of Internal Revenue, C.A. 8th, 257 F.2d 408, 409 (1958).

The most common reasons for recall of mandates are to correct clerical mistakes or to make the mandate consistent with the opinion. Kinnear-Weed Corp. v. Humble Oil & Refining Co., C.A. 5th, 296 F.2d 215 (1961); Cf. Klapprott v. United States, 335 U.S. 601, 616, 69 S.Ct. 384, 93 L.Ed. 266, judgment modified, 336 U.S. 942, 69 S.Ct. 384, 93 L.Ed. 1099 (1949). In other situations only the strongest equities will support the exercise of the power. See Greater Boston T. V. Corp. v. F.C.C., 149 U.S.App.D.C. 322, 463 F.2d 268, 277-279 (1971).

The only reasons we can ken from the record to explain the actions of the Court of Appeals are:

1. It desired to revise the substance of its old opinion.

2. It desired to publish its new opinion after the parties acquiesced in the original nonprecedential disposition of the case.

3. It desired to circumvent CR 76.32, 76.20, 76.30 and 76.28.

Taken singly or en masse, these do not support, but rather militate against, the exercise of discretion to recall the original mandate. This abuse of discretion by the Court of Appeals annuls the new opinion and the second mandate and revivifies the original disposition of the case. This view restores the parties to the positions they voluntarily adopted prior to May 11, 1978 and moots all substantive issues.

The decision of the Court of Appeals is reversed and the cause is remanded to it with directions to reissue its old opinion and its original mandate.

All concur.

      . Contra, Codell Construction Co. v. Dixon, Ky., 478 S.W.2d 703, 708 (1972).

      . The new opinion appears at 568 S.W.2d 54 (1978) despite the facts that a petition for discretionary review was filed on June 14, 1978 and granted by us on October 3, 1978.

      . The opinion of the Court of Appeals which appears at 568 S.W.2d 54 (1978) was not validly rendered, It was published contrary to CR 76.28. It shall not be cited or used as authority in any other case.


author: REED, Justice.

text:
    David Scott GALLMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 27, 1979.
    Jack Emory Farley, Public Advocate, Timothy T. Riddell, Mark A. Posnansky, Asst. Public Advocates, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Joseph R. Johnson, Asst. Atty. Gen., Frankfort, for appellee.
   REED, Justice.

David Scott Gallman, the appellant, was convicted on ten counts of trafficking in controlled substances and sentenced to twenty years in prison. The critical issue is whether evidence secured by the prosecution as the result of a warrantless search of a motor vehicle was admissible.

Although in the trial court the warrant-less search was held to be permissible on the basis of a claimed consent by appellant, the Commonwealth at the oral argument and in its brief appears to concede that this justification is not sustainable. Johns v. Commonwealth, Ky., 394 S.W.2d 890 (1965). It is the contention of the Commonwealth that the search was valid because the officers had probable cause to believe that the vehicle contained contraband. No attempt is made by the Commonwealth to demonstrate the existence of exigent circumstances. In our view, the record neither establishes probable cause nor exigent circumstances and we must conclude that the search was unreasonable in violation of the Fourth Amendment of the United States Constitution and Section 10 of the Kentucky Constitution.

A suppression hearing was held and the following facts were established: Detective Gist received information on July 19, 1977 that the proprietors of a local pharmacy were suspicious of two young men they observed in their store. The pharmacists had “checked around” ascertaining that the pair had been seen in other pharmacies as well. The pharmacists followed the pair when they left their drug store and determined that they were staying in a motel a block from the store. Detective Gist found in checking with other motels in the area that the pair had stayed in two other motels during that week. Detective Hall and Detective Thorpe joined in the investigation. Detective Gist learned appellant’s name from motel personnel about 11:00 o’clock or mid-morning. About 1:00 or 1:30 in the afternoon, Gist received a reply from an inquiry made to the Evañsville Police Department concerning the appellant and his car. The Evansville police advised that a place where appellant was staying in Evansville had been searched in the preceding two-week period and narcotics had been found.

When asked whether an effort was made to obtain a search warrant, Detective Gist stated that the officers were expecting a break-in or a robbery: “That’s the reason we were watching them. We had no idea that there were any drugs in the car at this time.” The officers staked out the motel. They had been informed that appellant had left a wake-up call for 4:00 o’clock that afternoon. At roughly 3:00 o'clock in the afternoon the stakeout was in place. Officer Thorpe testified that the officers had no reason to feel the need for getting a search warrant at 3:00 o’clock in the afternoon: “No, sir, because I didn’t know the gentleman and still don’t.”

Detective Hall testified in part as follows:

“X Q Based on the information you had prior you saw no need to get a search warrant to obtain a search — to conduct a search?
A I was prepared to get a search warrant if he did not consent to the search.”

The officers testified that the appellant and another man left the motel in appellant’s car between 4:30 and 5:00 p. m. and drove down West Second Street. Appellant was driving. Detective Gist stated that “their driving was questionable.” The police caused appellant to curb his automobile and the two men were detained. Appellant was arrested for driving under the influence of intoxicants or narcotics, and his companion, David Olds, was arrested for public intoxication. One of the officers unlocked the glove compartment of the car and found a quantity of marijuana. Another officer secured appellant’s keys and opened the trunk of the automobile and seized a sizeable quantity of various narcotics.

All searches without a valid search warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. The burden is on the prosecution to show the search comes within an exception. The only remotely possible exception presented in this case is whether the war-rantless search was made with probable cause to search but with exigent circumstances. Cf. City of Danville v. Dawson, Ky., 528 S.W.2d 687 (1975).

The cases considered by the United States Supreme Court concerning automobile searches in recent years have been far from definitive. In several instances only plurality opinions have been issued. See for example Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). In the case of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the concurring opinion of Mr. Justice Powell indicates that a majority of the Court is not yet ready to remove automobiles from protection of the Fourth Amendment. Of course, a search cannot be justified by what it produces. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

Although the burden was on the prosecution to justify the warrantless search, the thrust of the testimony of the officers is that they had no probable cause to procure a search warrant during the rather extensive time they had the appellant and his companion under surveillance. No facts or circumstances are presented which would change that situation from the time appellant's car left the motel until it was stopped by the officers. Neither did they recount any exigent circumstances. They sought to justify the search only because of the claimed consent. The absence of exigent circumstances is confirmed by the officer’s testimony that if the claimed consent had not been given he would have procured a search warrant. The prosecution did not meet its burden to establish that the warrantless search was permissible because of the presence of a recognized exception to the requirement of a warrant. The evidence secured by the warrantless search was inadmissible.

Appellant’s other claim of error respecting the pyramiding of charges in the instructions appears to us to become academic by reason of our exclusion of the fruits of the search.

The judgment is reversed with directions for further proceedings consistent with this opinion.

All concur.

      . We have omitted the testimony of the officers concerning the claimed consent because the Attorney General concedes that this evidence is insufficient to validate the search.

      . In Sibron heroin was found as a result of the search.


text:
    SAFECO INSURANCE COMPANY OF AMERICA, Movant, v. Glenn HUBBARD, Administrator of the Estate of Douglas Brian Hubbard, Respondent.
    Supreme Court of Kentucky.
    Feb. 27, 1979.
    Richard M. Trautwein, Barnett & Alagia, Gary D. Garrison, Barnett & Alagia, Louisville, for movant.

      F. Thomas Conway, Louisville, for respondent.
   REED, Justice.

Douglas Brian Hubbard, 21-year-old son of Glenn Hubbard, died as the result of an automobile accident. He was driving his individually owned and registered 1975 Ford. Glenn Hubbard as personal representative of his deceased son sued Safeco Insurance Company to recover under uninsured motorist coverage in the amount of $10,000 and to recover under a medical payments provision the sum of $2,000. All of this insurance was contained in an automobile liability insurance policy issued by Sa-feco to Douglas Hubbard.

In the trial court the parties stipulated that if a jury should determine that there was in fact physical contact with an alleged hit-and-run driver, judgment should be entered against Safeco for $12,000. A jury so found. Subsequently, however, the trial judge permitted Glenn Hubbard to amend his complaint to assert that Safeco issued two policies to him which he claimed afforded additional uninsured motorist and medical payments protection to Ms son Douglas in the limits of $10,000 for the uninsured motorist provision and $2,000 for the medical payment provision of each of these policies.

Thereupon the trial court awarded Glenn Hubbard $36,000 against Safeco as damages on all three policies. Safeco paid $12,000 in partial satisfaction and prosecuted an appeal to the Court of Appeals. The Court of Appeals affirmed. We reverse.

It appears that six years before the fatal accident Safeco had cancelled one of its policies to Glenn Hubbard and substituted a single policy which insured both automobiles owned by Glenn. Glenn’s policy contained the following exclusion:

“Exclusions: This policy does not apply under this section:
(a) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such automobile; . . . .”

An “insured automobile” is defined by the policy to be an “owned automobile” and an “owned automobile” is defined by the policy to mean “. . .an automobile owned by the named insured and described in the policy . . . .”

The net effect of this exclusion is to prohibit recovery for accidents arising from the use of an automobile owned by the named insured or a relative but not insured under this policy. It seems to us that the only question which must be answered is whether this is a reasonable exclusion. Commercial Union Insurance Co. v. Delaney, Ky., 550 S.W.2d 499, 500 (1977).

In MFA Insurance Co. v. Whitlock, Ky., 572 S.W.2d 856 (1978), we held that a clause in an automobile policy excluding from uninsured motorist coverage accidents arising out of the use of vehicles owned by an insured other than the automobile described in the liability portion of the policy was a reasonable exclusion and precluded the insured’s recovery from the insurer for injuries sustained while occupying an automobile that was not described in the liability portion of the policy. See also State Farm Mutual Automobile Insurance Co. v. Christian, Ky., 555 S.W.2d 571 (1977).

We regard the Whitlock case as disposi-tive. Douglas’s estate may recover under his own policy, but since he was killed in his own automobile, which was not described in his father’s policy, his estate may not recover additional sums under his father’s policy.

The decision of the Court of Appeals and the judgment of the circuit court are reversed, the cause is remanded to the Jefferson Circuit Court for further proceedings consistent with this opinion.

All concur.


author: CLAYTON, Justice.

text:
    James RIDDLE, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    Feb. 27, 1979.
    Jack Emory Farley, Public Advocate, Donna Boyce Proctor, Timothy T. Riddell, Asst. Public Advocates, Frankfort, for mov-ant.
    Robert F. Stephens, Atty. Gen., Reid C. James, Asst. Atty. Gen., Frankfort, for respondent.
   CLAYTON, Justice.

James Riddle was tried in the Powell Circuit Court for the assault of Betty Coyle. During the course of the trial Jackie Riffe, a prosecution witness, testified that the assailant, whom he identified as movant, did not have any physical disability. On direct examination of movant, defense counsel attempted to discredit Riffe’s identification by showing that movant did have a physical disability, an amputated finger on his left hand. On cross-examination the prosecutor, over objection, elicited testimony from movant that the amputation resulted from a gunshot wound he had inflicted upon himself in order to avoid military service. Movant was found guilty of second-degree assault and sentenced to imprisonment for eight years. The Court of Appeals affirmed by a divided panel. We granted discretionary review to consider whether introduction of evidence that movant voluntarily wounded himself to avoid military service constituted prejudicial error.

The Commonwealth concedes that the evidence in issue was irrelevant and should not have been introduced, but argues that the error was harmless. We cannot agree. We have on several occasions condemned even indirect references to draft evasion in criminal prosecutions for unrelated offenses. Webb v. Commonwealth, Ky., 451 S.W.2d 397, 399 (1970); Stasel v. Commonwealth, Ky., 278 S.W.2d 727, 729 (1955). In addition, we have consistently held that introduction of evidence of a similar nature (that defendant was a military deserter) amounted to reversible error. Powell v. Commonwealth, 308 Ky. 467, 214 S.W.2d 1002 (1948); Moore v. Commonwealth, 298 Ky. 14, 181 S.W.2d 413 (1944). Here this evidence was offered only to inflame the minds of the jurors. The error prejudiced movant’s substantial rights, and we reverse.

The judgment is reversed, and the cause is remanded with directions for a new trial.

All concur.


text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Movant, v. Byron HARVEY, Peabody Coal Company and Workmen’s Compensation Board, Respondents.
    Supreme Court of Kentucky.
    Feb. 27, 1979.
    Gemma M. Harding, Cyril E. Shadowen, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for movant.
    J. Quentin Wesley, Thomas E. Simpson, Wesley & Simpson, Morganfield, Thomas L. Ferreri, Madisonville, for respondents.
   CLAYTON, Justice.

This case arises out of a work-related back injury suffered by Byron Harvey on August 14, 1973, while in the employ of the Peabody Coal Company. The Workmen’s Compensation Board, from conflicting medical evidence, found that Harvey had sustained 25% permanent partial disability. The Board, having determined that one-half of the disability was attributable to arousal of a dormant nondisabling degenerative disc condition, apportioned the liability equally between the Special Fund and the employer. KRS 342.120. The opinion and award of the Board was affirmed by the Union Circuit Court. The Court of Appeals reversed, imposing the liability for permanent disability entirely upon the Special Fund. We granted discretionary review, and we reverse.

The Court of Appeals reasoned that the evidence failed to establish that the traumatic injury resulted in permanent disability or that Harvey’s work at Peabody hastened development of his degenerative back condition. In doing so the Court of Appeals substituted its evaluation of the medical evidence for that of the Board’s, and therefore was in error. Newsome v. Island Creek Coal Co., Ky., 459 S.W.2d 145 (1970). The Board has considerable leeway in its factual determinations, and is not obliged to accept or disregard the testimony of one expert as against another. Codell Construction Co. v. Dixon, Ky., 478 S.W.2d 703, 708 (1972). Any finding of the Board on a question of fact cannot be disturbed on appeal if there is any substantial evidence of probative value to support it. Holman Enterprise Tobacco Warehouse v. Carter, Ky., 536 S.W.2d 461, 465 (1976). Our review of the record indicates that it was not unreasonable for the Board to conclude that both the injury and arousal of the dormant nondisabling condition contributed equally to Harvey’s permanent disability. The Board’s findings were supported by substantial evidence.

The decision of the Court of Appeals is reversed. The judgment of the Union Circuit Court and the award of the Workmen’s Compensation Board are affirmed.

All concur.


text:
    Donald Garfield COX, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40127.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 19, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 16, 1979.
    William J. Shaw, Public Defender, William B. Haller, Asst. Public Defender, Clayton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Eric Martin, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for respondent.
   CRIST, Judge.

Movant was found guilty by a jury of murder in the first degree and sentenced by the court to life imprisonment. His conviction was affirmed by this court. State v. Cox, 542 S.W.2d 40 (Mo.App.1976). Reference is made thereto for a detailed statement of facts.

Movant then filed his Rule 27.26 Motion contending ineffective assistance of counsel in that (1) his attorney failed to endorse two alibi witnesses in time to have them called at trial, and (2) he was prejudiced by his attorney’s failure to preserve the issue of error in the admission into evidence of a double-shot picture taken of movant by the police after his arrest.

The trial court, after the appointment of counsel, dismissed appellant’s motion without a hearing for failure to state a claim for relief. A denial of a motion without a hearing was equivalent to findings and conclusions opposed to the grounds stated in the motion. If the court was correct in its conclusion, its order is sufficient. Stout v. State, 543 S.W.2d 797, 798-799 (Mo.App.1976). We affirm the order of the trial court if it is not clearly erroneous and can be sustained on any ground, stated or not. State ex rel. Reece v. Campbell, 551 S.W.2d 292, 298 (Mo.App.1977).

The threshold requirement to plead ineffective assistance is to allege facts sufficient to establish that a duty existed upon counsel as to the movant. See Haynes v. State, 534 S.W.2d 552, 554 (Mo.App.1976). The allegation as to the failure to endorse witnesses is deficient in this respect, particularly in view of this court’s discussion of issues related to movant’s alibi defense on direct appeal. The trial court’s order as to this point is not clearly erroneous and no error of law appears. We determine that an opinion with reference to movant’s first contention would have no precedential value. The judgment of the trial court with reference thereto is affirmed in accordance with Rule 84.16(b).

Did movant have ineffective assistance of counsel by reason of his attorney’s failure to complain in his motion for anew trial of the admission into evidence of a double-shot picture of movant? To establish ineffective assistance movant must establish such prejudicial conduct of counsel as to have resulted in a substantial deprivation of the right to a fair trial. Nelson v. State, 537 S.W.2d 689, 695 (Mo.App.1976); see Haliburton v. State, 546 S.W.2d 771, 774 (Mo.App.1977). The double-shot picture showed frontal and profile views. The shots were taken after his arrest. There was a writing on each view: Police Department Berkeley, Mo. 376 12-27-’73”. An objection was made that the “photograph is a mug shot ... it implies involvement with the police and police arrest.” The objection was overruled and the picture was admitted into evidence and passed to the jury without covering the writing.

The writing should have been covered. State v. Futrell, 565 S.W.2d 465 (Mo.App.1978). But did its admission into evidence substantially deprive movant of his constitutional right to a fair trial? We think not.

The double-shot picture of movant was taken as part of the investigation of the murder for which he was ultimately charged. It did not imply that movant had a criminal record nor infer that it was taken in connection with any crime other than the one for which he was charged and convicted. The date on the picture coincided with the date of the murder for which movant was convicted. State v. Poor, 533 S.W.2d 245, 250-251 (Mo.App.1976).

The judgment is affirmed.

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


author: CLEMENS, Judge.

text:
    HOWARD, SINGER & MEEHAN, Appellants, v. CLAYTON FEDERAL SAVINGS AND LOAN ASSOCIATION and Phyllis M. L. Hill, Respondents.
    No. 39788.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 27, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 16, 1979.
    Application to Transfer Denied April 10, 1979.
    Howard, Singer & Meehan, Raymond Howard, St. Louis, for appellants.
    Leo Garvin, Edgar G. Boedeker, Fordyce & Mayne, St. Louis, for respondents.
   CLEMENS, Judge.

This declaratory judgment action concerns payment of $12,487, proceeds from a fire insurance policy arising from destruction of the home of the owner-insured, Mrs. Phyllis M. L. Hill. The issue is that of priority between two claimants. Plaintiff-law firm claims one-third under a contingent fee contract with Mrs. Hill, given them by her after the fire. Defendant-Clayton Federal Savings & Loan Association, as the holder of Mrs. Hill’s $13,050 note and prior deed of trust, claims all the insurance proceeds under the insurance policy’s loss-payable clause.

The trial court found defendant-Clayton Federal had a prior lien and was entitled to the proceeds in full. Plaintiff-attorneys have appealed, contending defendant-lender, by not moving promptly to collect the insurance proceeds and directing Mrs. Hill to personally seek to enforce payment, had waived the priority of its lien.

At the summary judgment hearing, Mrs. Hill testified she notified defendant her home had been damaged by fire and asked defendant to contact her insurer, but they did not. She then retained plaintiff to represent her and collect the policy proceeds. She agreed to pay plaintiff a contingent fee of one-third of the recovery. Plaintiff negotiated a settlement with the insurer and a $12,487 check payable to Mrs. Hill, Attorney Raymond Howard and Clayton Federal was tendered into court.

Defendant’s motion for summary judgment alleges ownership of its deed of trust on Mrs. Hill’s property and prior claim under the policy’s loss-payable clause.

It is a general rule that as between liens arising out of private contract, the lien which is prior in time is entitled to satisfaction before other later liens binding the same property. Rankin v. Scott, 25 U.S. 177, 12 Wheat. 177, 6 L.Ed. 592 (1826). Priority in time creates priority in force and effect; the first in order of time being, prima facie, superior to those of a later date. Jaicks v. Oppenheimer, 168 S.W. 216[1, 2] (Mo.App.1914), 264 Mo. 693, 175 S.W. 972 (1915). Defendant’s lien therefore is superior to plaintiffs’, which was acquired more than a year later.

Plaintiffs contend here for the first time that defendant waived the priority of its lien by leaving the insurance negotiations with Mrs. Hill, the owner-mortgagor. Waiver is an affirmative defense which if not pleaded, presented or passed on in the trial court, cannot be presented for the first time on appeal. Ehrle v. Bank Building & Equipment Company of America, 530 S.W.2d 482[8] (Mo.App.1975).

Viewed as plain error, the point is not supported by plaintiffs’ cited case of H. B. Deal Const. Co. v. Labor Discount Center, Inc., 418 S.W.2d 940 (Mo.1967), where the bank-mortgagee was held to have waived the priority of the lien of its deed of trust in favor of the mechanics’ lien claimants because it caused, procured and induced them to provide services and materials for the construction of an improvement. Plaintiffs’ attorney’s lien is distinguishable from a mechanic’s lien and active participation by defendant is not alleged in this case.

We concur with the opinion of Sureck v. United States Fidelity and Guaranty Company, 353 F.Supp. 807[1—3] (W.D.Ark.1973), and hold that a law firm which undertakes to collect proceeds for a mortgagor under a fire insurance policy, without express authority from the mortgagee, assumes the risk that its claim for compensation will turn out to be inferior to the claim of the mortgagee on those proceeds.

Judgment affirmed.

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