author: JAMES, Justice.

text:
    Charles RIPPETOE, Appellant, v. WHITE ROCK NATIONAL BANK, Appellee.
    No. 5725.
    Court of Civil Appeals of Texas, Waco.
    Sept. 22, 1977.
    Rehearing Denied Oct. 13, 1977.

      Ronald R. Waldie, Dallas, for appellant.
    G. Leroy Street, Geary, Stahl, Koons, Rohde & Spencer, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a suit for the balance due on a note and for exemplary damages. Plaintiff-Appellee White Rock National Bank sued Defendant-Appellant Charles Rippetoe for $1444.64 balance alleged to be due upon an automobile note, and for $1000.00 exemplary damages. Based upon a jury verdict favorable to the Bank, the trial court entered judgment in favor of the Plaintiff Bank against the Defendant Rippetoe for $2444.64, from which the Defendant appeals. We affirm.

The jury in answer to special issues found:

(1) That Mr. Rippetoe did not make payment of the balance due on the note on or about November 6, 1975;

(2) That Mr. Rippetoe acted with malice in refusing to return the original note and certificate of title;

(3) That the Bank should be awarded $1000.00 damages against Mr. Rippetoe as exemplary damages.

Appellant’s first point of error contends that there is no evidence of probative value to support the jury’s finding in answer to Special Issue No. 1 to the effect that Mr. Rippetoe did not make the payment on or about November 6, 1975, for the asserted reason that such evidence is hearsay. We do not agree.

On May 29,1974, Appellant Rippetoe executed a note with a loan statement and security agreement with the Appellee Bank, for the purchase of a 1972 Mercury Marquis automobile. Mr. Rippetoe gave the Bank a security interest in the automobile to secure the payment of the note. The Bank’s testimony is to the effect that on November 6, 1975, at a time when there was a balance due on the note in the amount of $1444.64, the Bank by mistake released the title certificate to the automobile, marked the note “paid”, and mailed the note and title certificate to Mr. Rippetoe. Thereafter the Bank discovered their mistake and made demand upon Mr. Rippetoe to return the note and title certificate, which demand was refused. Mr. Rippetoe testified that on November 6, 1975, he came into the Bank personally and paid the $1444.64 balance in cash, and at that time was given the released title certificate and the note marked “paid.” As stated, the jury found that Appellant did not make the payment, and in refusing to do so, acted with malice, and awarded $1000.00 exemplary damages. Pursuant to and in harmony with the jury verdict, judgment was entered in favor of the Bank against Mr. Rippetoe for $2444.64.

Michael L. Dietrich, a vice president of the Bank whose primary duties consisted of lending officer and custodian of the books and records in the loan department, testified that he was well familiar with the Bank’s file on Charles Rippetoe; that the Bank’s records were made in the regular course of business; that it was the regular course of business for an employee or an agent with personal knowledge of an act or event to make a memorandum or record of .that act or event and include it in the appropriate file; that such records of any such act or events were made at or near the time they occurred or reasonably soon thereafter. He then testified that Mr. Rip-petoe’s file does not show any record of a cash payment on Mr. Rippetoe’s note on November 6, 1975, as testified to by Mr. Rippetoe. Mr. Dietrich further testified that in the regular course of business, when a customer made a cash payment on a note that the Bank issued a cash receipt, and the Bank’s records do not show the issuance of such a cash receipt to Mr. Rippetoe for $1444.64. (In this connection, Mr. Rippetoe testified that he did not receive a cash receipt for his asserted cash payment of $1444.64 on November 6, 1975.) Mr. Dietrich further testified that he personally investigated the Bank’s records, and that such records show that no cash payment was made by Mr. Rippetoe on November 6,1975, and that such records show that Mr. Rippe-toe “still owes” a balance of $1444.64 on such note.

Mrs. Betty Calvert, a vice president of the Bank in charge of the loan department, likewise testified that she was familiar with the Bank’s file on Charles Rippetoe; that she was the person who mailed the note and title certificate to Mr. Rippetoe; that subsequent to her mailing of these documents she checked the Bank’s file on Mr. Rippetoe and found that Mr. Rippetoe’s note did not have a zero balance, and that the note and title certificate had been brought to her by another Bank employee for mailing by mistake.

Mr. Dietrich as a vice president of the Bank and custodian of the Bank’s books and records was a qualified witness within the meaning and intent of Article 3737e, Vernon’s Texas Civil Statutes, commonly known as the Business Records Act, to prove up the Bank’s records. See University Savings and Loan Assn. v. Security Lumber Co. (Tex.1967) 423 S.W.2d 287, 290. And by his testimony as hereinabove outlined, he did prove up such records of the Bank and rendered same admissible under the provisions of Article 3737e, Section 1(a), (b), and (c), and Section 2.

Then after having rendered such records admissible, he and Mrs. Calvert both testified that such records did not contain any memorandum or record that Mr. Rippetoe had made any payment on November 6, 1975 (as testified to by Mr. Rip-petoe).

Section 3 of Article 3737e provides:

“Evidence to the effect that the records of a business do not contain any memorandum or record of an alleged act, event or condition shall be competent to prove the non-occurrence of the act or event or the non-existence of the condition in that business if the judge finds that it was the regular course of that business to make such memoranda or records of all such acts, events or conditions at the time or within reasonable time thereafter and to preserve them.”

In our opinion, the Bank’s evidence fits squarely within the provisions of Section 3 of Article 3737e, as above-quoted, and we so hold. This being true, the jury’s finding in answer to Special Issue No. 1 that Mr. Rippetoe did not make the payment in question is supported by competent evidence, and Appellant’s first point is overruled.

Appellant further complains of jury misconduct; however, we have been furnished no statement of facts of the evidence heard by the trial court concerning Appellant’s Amended Motion for New Trial. There is a recitation in the Order Overruling the Amended Motion for New Trial that the trial court heard evidence. Without a statement of facts showing what the evidence was concerning jury misconduct we can only assume that such evidence so heard supported the trial court’s order. Appellant’s complaint of jury misconduct is accordingly overruled.

Appellant has other points and contentions, all of which we have carefully considered. All are overruled for want of merit. Judgment of the trial court is accordingly affirmed.

AFFIRMED.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Joseph R. WILSON, Respondent.
    Supreme Court of Kentucky.
    July 1, 1977.
    Rehearing Denied Oct. 28, 1977.
    Leslie G. Whitmer, Director, John T. Damron, Asst. Director, Frankfort, for complainant.
    Joseph R. Wilson, Louisville, pro se.
   PER CURIAM.

This is a disciplinary proceeding in which the Board of Governors of the Kentucky Bar Association found Joseph R. Wilson guilty of unprofessional conduct. The board recommended that Wilson be permanently disbarred from the practice of law.

A charge was filed against Wilson after he failed to file a response to the complaints certified to him. After the charge was filed, Wilson failed to file an answer as required by RCA 3.160. The inquiry tribunal entered an order submitting the record to the Board of Governors for disposition. The only action taken by Wilson was a motion for an extension of time (5 days) in which to respond to the rule issued against him by this court. That motion was filed two months after the Board of Governors had voted that Wilson be disbarred.

Wilson settled a personal injury claim for a client. A check in the amount of $281.19 made payable to Wilson and his client jointly was received by him on June 29, 1976. The client by affidavit stated:

“. . .1 kept trying to call Mr. Wilson and every time I called him, he was never in his office or he was busy and would not talk to me. He did return my calls on a few occasions and told me the check was not there. The endorsement which appears on the back of the copy of the check ... is not my true and correct signature. I do not know who forged my signature on this check.”

Five months after he received the check, Wilson, at the request of the Department of Insurance sent his personal check to the client in the amount of $281.19. In a cover letter he stated:

“I am embarrassed that these payments were apparently made in the latter part of June and that I was not able to identify the payment until recently. This was apparently due to a mix-up in my office and since I happen to be the boss I must take the responsibility.”

Count I of the charge against Wilson was that he had forged or caused to be forged the name of his client. Count II charged that Wilson comingled the funds with his own money and failed to properly account for the funds until November 13, 1976, when he sent the client his personal check. Count III charged that Wilson represented to his client that no check had been received.

The record reveals that there was ample evidence to support each count of the charge against Wilson.

This court is of the opinion that the facts set out in each count constitute such dishonesty as to warrant Wilson’s permanent disbarment from the practice of law.

Honesty, good moral character, and high ethical standards are necessary qualifications for admission to the bar. Wilson fell short of the mark of the prize of the high calling of his chosen profession. His conduct in this matter shows that he has failed to fulfill a trust assumed by him. See Kentucky Bar Association v. Tucker, Ky., 535 S.W.2d 97 (1975).

Accordingly, it is ordered that Wilson be permanently disbarred from the practice of law in this Commonwealth, and he is required to pay the costs of this action.

All concur.


author: STEPHENSON, Justice.

text:
    Hershel BURCH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. SC-36-MR.
    Supreme Court of Kentucky.
    July 1, 1977.
    Rehearing Denied Oct. 28, 1977.

      Jack Emory Farley, Public Defender, J. Vincent Aprile, II, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

The appellant, Hershel Burch, was indicted, tried by jury, and convicted of the murder of his 17-year-old stepson. He was sentenced to life imprisonment. We affirm.

Burch was convicted and sentenced in 1973 and appeal was not perfected. After two RCr 11.42 motions were denied, the United States District Court for the Eastern District of Kentucky granted a conditional writ of habeas corpus giving the trial court an opportunity to grant Burch a belated appeal, which was done.

On the trial of the case, Burch’s wife testified that Keith Gabbard, the deceased who was her son and Burch’s stepson, borrowed a car belonging to Burch and refused to return it until compelled to do so by a legal proceeding initiated by Burch, and that later the same day, Gabbard approached the house and Burch held the screen door to prevent Gabbard from entering. Gabbard struck at him through the door. After the incident, Burch left the house and did not return until 5:30 the next morning. In the meantime, Gabbard went to bed and was asleep in Burch’s bedroom. While Burch was seated on his wife’s bed conversing, she noticed he had been drinking. Shortly thereafter, according to the wife, Burch went outside and returned with a shotgun. Burch sat on the bed again, and in the course of the conversation stated that if Gabbard jumped on him again, he would kill him. Then, according to the wife, Burch jumped from the bed, went into his bedroom where Gabbard was sleeping, and shot Gabbard in the face killing him. The wife testified she was close behind Burch when the shooting occurred. She further testified that Gabbard was “violent if bothered.”

Burch’s 14-year-old stepdaughter testified that she was asleep in the same room with her mother, was awakened, and heard Burch saying “that was the best way to get him,” as he jumped from the bed. She testified she saw Burch raise the gun, shoot Gabbard, and run from the house.

The owner of the shotgun, Burch’s brother-in-law, testified Burch borrowed the shotgun to go squirrel hunting.

Burch testified that Gabbard threatened him with a butcher knife on one occasion and that he carried a switchblade knife. After the incident at the screen door, he was afraid to stay at home and went to a friend’s and drank more than a pint and one-half of whiskey. He borrowed the shotgun for squirrel hunting and for protection against Gabbard. Further, he testified that he returned home, talked with his wife for awhile in her bedroom, then went outside to check on the weather and to turn out the lights on his car. When he returned to the house, he went to his bedroom and left the shotgun by the closet. He saw someone in his bed in the dim light but assumed it was his stepdaughter. He returned to his wife’s bedroom, and when she told him Gabbard was in his bed, he testified that he was afraid Gabbard might wake up and he would be in trouble because the gun had been left near the bed. Then Burch testified:

“A I rushed in there and grabbed the gun and started backing out with it, and he partly raised up and pointed his finger at me and made a dive under the pillow with his right hand, and as I was backing out trying to get away the gun accidentally discharged.
“D 90 Which hand did you have the gun with?
“A I reached down and got it with the left hand and swung it around like this.
“D 91 Where did you have your right, did you have it in the trigger cage?
“A I slapped it in the trigger cage and jerked the hammer back, yes, sir.
“D 92 Well, did you intend to fire the gun at that time?
“A No, sir, I did not unless I had to.
“D 93 What do you mean if you had to?
“A Well, if he come out of that bed or brought something out from under that pillow to hurt me with and he had threatened me the day before, I would have used it, yes, sir.
“D 94 You tell this jury now that the actual discharge of it was accidental?
“A Yes, sir, it was accidental.”

A witness for Burch testified that Burch was visiting his home about 4 or 5 a. m., was drinking whiskey with him and that Burch was drunk.

With all the evidence in, the trial court instructed the jury on the offenses of murder, voluntary manslaughter, first- and second-degree involuntary manslaughter, and the defenses of self-defense and accidental shooting.

On this appeal, Burch makes four assertions of error:
(1) Improper remarks on the part of the Commonwealth’s attorney;
(2) Failure of the trial court to give an instruction on intoxication;
(3) The murder instruction given by the trial court did not require the Commonwealth to prove beyond a reasonable doubt the absence of “sudden affray” or “sudden heat and passion”; and
(4) An unconstitutional statute, KBS 421.225(2), required Burch to testify before any other defense witness.

We are constantly being importuned by the Public Defender to issue a reasoned opinion covering every issue raised by the appellant. We have decided to do so in this opinion, and it should illustrate why we frequently, as do all appellate courts, discuss some of the issues on appeal and decline to discuss others for the reason they are without merit.

None of the assertions of error were objected to at the trial or preserved in any manner for review of the issues by the court. Burch was represented by able trial counsel. It is apparent to us why he did not bother to make issues where none existed.

(1) In the opening statement, the Commonwealth’s attorney told the jury that he had inquired about squirrel hunting season, and it was not the season for squirrel hunting. Burch’s brief recognized that the witness who lent the gun testified that it was “squirrel season,” and the subject was never again mentioned. It is argued that the statement was highly prejudicial to Burch for the reason that it was important to the issue of premeditation. In our view, this is much ado about nothing. That a jury would be influenced by the statement in view of the evidence presented is absurd. The argument is less than trivial.

Also in opening statement, the Commonwealth’s attorney stated that the stepdaughter would testify Burch said, “Well, this is a good a time as any,” before shooting Gabbard. This was repeated in the closing argument for the Commonwealth. We are unable to comprehend the argument that the remark of the Commonwealth’s attorney that the stepdaughter would testify “this is a good a time as any” was damaging, prejudicial testimony in light of the actual testimony “that was the best way to get him.” We cannot see.where one statement is more damaging than the other in light of the other testimony. It occurs to us that trial counsel made no objection on the theory that an objection to correct would impress a damaging statement even more in the minds of the jury.

A further assertion is made that in closing argument to the jury the Commonwealth’s attorney “testified” about the operation of the shotgun. He argued that because it was necessary to pull back the hammer before pulling the trigger, the jury should disregard accidental killing. A curious argument is made that this informed the jury of facts not in evidence since the record did not contain “expert” opinion evidence concerning the method of firing the shotgun. Burch did testify that he cocked the gun, and why anyone would argue that it would require expert evidence concerning the method of firing a shotgun is beyond our comprehension.

The remainder of this argument goes to assertions of “inflammatory” remarks which we view as reasonable inferences from the evidence.

To sum up the issue, the Public Defender argues that these remarks deprived him of a fair trial and deprived him of his right of confrontation, the asserted errors being of constitutional magnitude. The argument is little short of asinine.

(2) Next it is argued the trial court should have given an intoxication instruction sua sponte. Burch testified in detail about the circumstances before and after the shooting. His defense was “accidental shooting.” There was evidence of some intoxication, but not to the degree from which a jury could infer it was so severe as to negate intent. After citing Richards v. Commonwealth, Ky., 517 S.W.2d 237 (1974), we wonder why the argument is pursued. In order to justify an instruction on intoxication, there must be evidence to raise an issue of intoxication of such a degree as to negate intent. That is not the situation here. See Jewell v. Commonwealth, Ky., 549 S.W.2d 807 (1977). Burch cannot have it three ways. He received an instruction on self-defense and accident. This was more than that to which he was entitled. Self-defense is “intended to commit the act for fear of personal injury or death”; accident is “I did not intend to commit the act.” The two are contradictory, and it would be absurd to interject yet another defense that “I was so intoxicated, I did not know what I was doing.” A good argument could be made that absurd contradictory instructions would prejudice the jury. Trial counsel obviously knew he was not entitled to this instruction and did not ask for it.

(3) Next, we wonder how a trial court could instruct a jury that the Commonwealth was required to prove beyond a reasonable doubt the absence of “sudden affray” or “sudden heat and passion.” Here the Commonwealth was proving the offense of murder. Voluntary manslaughter is a lesser offense. An instruction on voluntary manslaughter is given if justified by the evidence adduced at trial, whether by the prosecution or by the defendant. Here, we are not at all convinced that the instruction was required. The trial court acted out of an abundance of caution, and it is obvious to us why no objection was made to this portion of the instruction. It was beneficial to Burch. Partin v. Commonwealth, Ky., 445 S.W.2d 433 (1969), is cited by Burch and answers his argument.

We take exception to the statement of the Public Defender that in this jurisdiction a homicide with the use of a deadly weapon raises a presumption of murder and that the burden of proof affirmatively shifts to the accused to prove circumstances to reduce the charge. The inference spoken of in Partin is not a presumption. There is a vast difference between the two, and we are not aware of any opinions by this court which would support the statement of the Public Defender. None is cited.

It is obvious to us that this statement was made in an attempt to bring this case within the purview of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), where the Public Defender states that a similar statutory construction was examined. This is indeed a surprise to us inasmuch as we do not have a statute such as that condemned in Mullaney. The Maine statute, as construed by the court of last resort in Maine, placed the burden of proof on the defendant to show he acted in heat of passion or sudden provocation in order to reduce a charge of murder to manslaughter. Our case law does not cast the burden of proof on the defendant to reduce the offense. Mullaney is not applicable here in any respect.

(4) Lastly, we see an argument unique in criminal jurisprudence. The Public Defender argues for Burch that an unconstitutional statute forced him to testify first. When this case was tried in 1973, KRS 421.225(2), since repealed, provided that a defendant shall not be allowed to testify after any other witness has testified for the defense.

In Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), a Tennessee statute, which required a defendant to testify before any other witness testifying in his behalf, was declared unconstitutional. There the defendant requested of the trial court that he be allowed to present other defense witnesses first, and this request was denied. Thus an issue was preserved for appellate review.

There was no such request here, and this lack leads the Public Defender to the argument that an unconstitutional statute forced Burch to testify first. We had thought we were relegated to reviewing issues concerning assertions of error on the part of the trial court, and are of that opinion still. We do not know if Burch wanted to testify first or not. We can say that none of the other witnesses offered any testimony helpful to his defense of “accidental shooting,” so it would seem he desired to testify first and get his defense before the jury.

To sum it up, this is a frivolous appeal without an arguable issue, even had the issues been preserved for review.

We discern from our review of the Public Defender’s brief and arguments over a period of time, a complete lack of comprehension of the role an appellate court plays in an orderly judicial system. We review issues properly presented to the trial court, save in the rare instance of a situation where we believe a manifest injustice requires that we concern ourselves with an issue not so presented.

We observe it is better to cite one case in point than one hundred which are not applicable in the fact situations at all. A jury issue was presented here; the jury resolved it adversely to Burch. He received a fair trial.

The judgment is affirmed.

All concur.


text:
    Roy Dean WYLIE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 20, 1977.
    Rehearing Denied Oct. 28, 1977.
    Jack Emory Farley, Public Defender, J. Vincent Aprile, II, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   PER CURIAM.

Roy Dean Wylie appeals from a judgment entered on a jury verdict finding him guilty of knowingly receiving stolen property and fixing his punishment at a year’s imprisonment.

Wylie, when apprehended by police officers in Lexington, was found to be in possession of a quantity of silver and a stereo set that had previously been stolen from Mrs. R. M. Gay. Wylie testified that he was moving the property from a motel room occupied by Larry Williams, an ae-quaintance, who had directed him to put it “underneath this trailer back behind the Continental Inn.”

Wylie asserts that his conviction of the felony offense of receiving stolen property was constitutionally infirm since the indictment charged only the misdemeanor offense of receiving stolen property and thus failed to give him notice of the felony offense.

KRS 514.110 provides:

“(1) A person is guilty of receiving stolen property when he receives, retains or disposes of movable property of another knowing that it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner.
“(2) The possession by any person of any recently stolen movable property shall be prima facie evidence that such person knew such property was stolen.
“(3) Receiving stolen property is a Class A misdemeanor unless the value of the property is $100 or more, in which case it is a Class D felony.”

The indictment returned by the Fayette County Grand Jury read in part as follows:

“On or about the 17th day of September, 1975, in Fayette County, Kentucky, the above named defendant unlawfully received from a person or persons unknown to the Grand Jury a large quantity of silver and a stereo set which had been stolen from Mrs. R. M. Gay, knowing that the property was stolen; * *.”

Wylie asserts that as the indictment charged him with the misdemeanor offense of receiving stolen property he could not be tried on the felony offense, nor was the trial court permitted to instruct the jury on the felony offense of receiving stolen property. He asserts that KRS 514.110 requires that the clause “of the value of $100 or more” be an essential element of an indictment if the felony offense is to be charged.

In Duncan v. Commonwealth, Ky., 330 S.W.2d 419 (1959), the sufficiency of an indictment charging armed robbery was in issue because it stated only that the accused had robbed the victim by force, violence and arms, and by putting the victim in fear of bodily harm. This court, in holding that the indictment was insufficient to support a conviction, stated:

“The indictment will not support a conviction for armed robbery, because it does not state the vital fact, differentiating armed robbery from the lesser offense of simple robbery, that the robbery was committed by use of a ‘pistol, gun or other firearm or deadly weapon,’ these being the terms by which the offense of armed robbery is specifically defined in the statute. * *

Duncan was decided in compliance with those sections of the Criminal Code of Practice concerning the form and requisites of an indictment. Section 124 of the Criminal Code of Practice provided that the indictment must be direct and certain in regard to the offense charged. Duncan, in following this section, stated that a fundamental principle under the Criminal Code of Practice required that the substantive elements of a crime be stated as well as the name of the crime charged, and that a mere stating of the name was not a sufficient compliance with the Criminal Code.

The Rules of Criminal Procedure adopted subsequent to Duncan have substantially liberalized the traditional requirements applicable to indictments. RCr 6.10 requires only that the indictment contain a plain, concise, and definite statement of the essential facts constituting the specific offense. An indictment under this section is sufficient if it informs the accused of the specific offense with which he is charged and does not mislead him.

The indictment against Wylie clearly charged a public offense — knowingly receiving stolen property. Actually, all that was wrong with it was that it did not specify whether it was for a felony or a misdemeanor. He was not misled, and this court is of the opinion that he was adequately informed of the charge. The question that plagued Wylie, if it did, could only have been how much time he was going to get if convicted. In other words, was he charged with a misdemeanor or a felony? He was already on notice of the charge of receiving stolen property, and if, under these circumstances, he had any doubt regarding the extent or nature of the charge, he had available to him means by which this doubt could be readily and easily resolved.

RCr 6.22 provides:

“The court for cause shall direct the filing of a bill of particulars. A motion for such bill may be made at any time prior to arraignment, or thereafter in the discretion of the court. A bill of particulars may be amended at any time subject to such conditions as justice requires.”

Wylie was charged with receiving “a large quantity of silver and a stereo set.” The description of the property which Wylie was charged with receiving would have put any reasonable person on notice that the value was in excess of $100. It was an adequate forewarning of things to come. The language in the indictment should have piqued Wylie’s curiosity enough to have posed the question of the value of this property. The answer was readily available. Wylie was well aware that his was not a “penny ante” crime, and the testimony of Mrs. Gay that the silver he had in his possession was worth thousands of dollars and that the stereo was worth approximately $1000 definitely fixed the nature of his offense.

Wylie next asserts that the court erred by instructing the jury on an offense not charged in the indictment. There are actually two facets to this so-called infirmity. First, the court correctly instructed the jury upon the offense charged—receiving stolen property. This relegates the objection to one point only, and that is the penalty to be assessed by the jury. Strangely enough, Wylie did not object to the court's felony instruction or offer an instruction on the insisted-upon misdemeanor charge of receiving stolen property. His attitude is best expressed in this remark from the record:

“THE COURT: The Court has given to each of the counsel instructions which the Court proposes to give. Either of the attorneys have any objection to the instructions or do the attorneys have any instructions?
MR. ADAMS [Defense Counsel]: The Defendant has no objections to the instructions and doesn't wish to propose any.”

The only instruction given by the court was the felony instruction on receiving stolen property which appeared, at that time, to have been wholly acceptable to Wylie. The asserted error in this instruction was not presented to the trial court for consideration either at the time it was given or upon motion and grounds for a new trial. Consequently, the issue was not preserved for appellate review.

Wylie complains of the adequacy of the evidence upon which he was convicted primarily because his story that he was moving the stolen goods for someone else was so reasonable and believable that the Commonwealth failed to prove facts necessary to constitute the crime charged. We have carefully reviewed the record, and the evidence was of sufficient substantiality to require that the case be submitted to a jury. Furthermore, the verdict of the jury is well within the bounds of the factual situation surrounding the offense charged.

Wylie finally complains that he was prejudiced by the closing remarks of the Commonwealth's attorney. Here again, this court has examined the record and finds no objections to any of the remarks made. In fact, Wylie himself admits that he did not object to the claimed prejudicial statements made by the Commonwealth’s attorney. Under such circumstances, the claimed error asserted by Wylie was not preserved for appellate review.

So much of this court’s opinion in Duncan v. Commonwealth, Ky., 330 S.W.2d 419 (1959), as conflicts with this opinion is hereby overruled.

The judgment is affirmed.

All concur.


author: JONES, Justice.

text:
    James C. STALLINGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    June 10, 1977.
    Rehearing Denied Oct. 28, 1977.
    Jack Emory Farley, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Deedra Benthall, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

James C. Stallings appeals from a judgment sentencing him to life imprisonment pursuant to a jury verdict finding him guilty of murdering his wife.

Stallings raises three issues on this appeal: (1) that it was prejudicial error for a witness to mention that he had refused to take a lie detector test; (2) that it was prejudicial error for the trial court to permit colorful, gruesome photographs of the victim to be introduced into evidence; (3) that it was prejudicial error for the trial court to permit testimony that Stallings had accidentally shot and killed a previous wife.

The evidence of the Commonwealth established that at approximately 4 A.M. on August 12, 1975, Stallings’ wife was mortally wounded by a bullet fired from close range by a RG .38 revolver. The Commonwealth also established that Officer Bob Morris of the Owensboro Police Department sold Stallings the revolver in October, 1969. The evidence for the Commonwealth established that the revolver was found in the trunk of Stallings’ automobile some 13 hours after the shooting. Two witnesses for the Commonwealth testified they saw Stallings place something in the trunk of his automobile shortly after the shooting. A witness for the Commonwealth testified that some two weeks before the shooting Stallings said that he was “going to have to kill all of those son-of-a-bitches someday.”

Stallings testified in his own behalf. He stated that he was awakened around 4 A.M. and saw someone standing at the foot of his bed. He described this person as a large man. When he realized it was not his oldest son, he rolled off the bed to grab his service revolver. While he was rolling off the bed he heard a shot. Before he could get his revolver, he heard other shots fired by the unknown assailant. Stallings testified that he began shooting at the intruder. He followed him into the hall. He was unable to pursue the unknown person further because he discovered his house was on fire. Stallings testified that he awakened his 12-year-old daughter. He then returned to his room, picked his wife up off the bed and carried her out into the yard. According to Stallings, when he, his wife and daughter were safe from the fire, he attempted to crawl back into the house to see if he could save his three other children. The fire was out of control and the smoke was so dense he was unsuccessful in Ms attempt to save the children.

Stallings further contends that two or three weeks before the fire he had received a phone call from an anonymous person who informed him that, “They were going to burn him and his house.” He steadfastly denied shooting his wife. Stallings denied also that he had purchased the revolver with which his wife was murdered. He admitted an incident in 1969 that led police officers to seize the revolver from him, but denied that he had seen it since 1969. Stall-ings’ theory of the case is that an unknown assailant obtained possession of the revolver sometime between 1969 and the time that it was used to murder his wife. Stallings does not explain how the revolver ended up in the trunk of his car.

Officer Fred Hall of the Owensboro Police Department mentioned in his testimony that Stallings had refused to take a lie detector test. After an objection the trial court admonished the jury to disregard that testimony. Stallings asserts that the trial court’s admonishment increased the prejudicial effect of the testimony because the trial court stated that the polygraph is used by law enforcement agencies as an investigative tool. Of course the introduction of this testimony was error. However, this court is of the opinion that the trial court properly admonished the jury so as to render the error harmless. Because this court finds it necessary to reverse and remand for a new trial on another issue, the court is confident that at another trial the Commonwealth will not permit any witness to testify that Stallings had refused to take a polygraph test. See Meyer v. Commonwealth, Ky., 472 S.W.2d 479, 486 (1971).

The court finds no merit in Stall-ings’ contention that the trial court erred by allowing the photographs of the murder victim to be introduced into evidence. The photographs were not introduced for the purpose of prejudice. There was a question as to the entry of the bullets and as to the range from which they were fired. The powder burns visible in the photographs were some evidence upon which these questions could be determined. This court has said, “In this advanced technological age of television, movies and news media, those persons selected as jurors are able to view a picture of a victim of crime without prejudice to the defendant.” Napier v. Commonwealth, Ky., 426 S.W.2d 121 (1968); Deskins v. Commonwealth, Ky., 512 S.W.2d 520 (1974).

The Commonwealth’s Attorney succeeded in introducing evidence regarding the circumstances surrounding Stallings’ involvement with the victim at the time when she was not his wife, and at the time when he was still married to his first wife. The evidence was that Stallings’ first wife also died as a result of a shooting. Stallings, of course, explained the shooting of his first wife as an accident.

It is difficult for this court to comprehend why this evidence was introduced. It certainly was prejudicial to the substantial rights of Stallings. The Commonwealth’s Attorney said he was going to use this irrelevant evidence. In an awkward, confusing opening statement to the jury, he said:

“Our evidence will further be that the defendant James C. Stallings began to go with Cathryn Stallings, his wife, who was found murdered with five (5) shots in her body a considerable length of time prior to the death of Mr. Stallings’ first wife.”

During cross-examination, over an objection, Stallings was asked about the shooting death of his first wife. He was asked about the relationship he had with his second wife (the victim) before his first wife was shot. Stallings was further asked whether it was not true that he had sexual intercourse with his second wife before the death of his first wife. Timely objections were made to all of these irrelevant questions. In his closing argument the Commonwealth’s Attorney used this irrelevant evidence in an attempt to undermine the credibility of Stallings.

“Now, you figure out who to believe. A man on trial for the death of his family while a man [Fred Hall] who was trying to save them by warning them about his misdeeds before the accidental shooting of his first wife — when he was going with this woman — to the total detriment of his entire family. You figure out how much credibility you want to give this defendant under those circumstances.”

The evidence of Stallings’ illicit love affair with his second wife, coupled with the evidence of the shooting death of his first wife, should not have been interwoven into the crime of murder for which Stallings was charged. Therefore this court is of the opinion that the trial court erred by permitting the Commonwealth to introduce and use the above irrelevant and highly prejudicial evidence. See Brown v. Commonwealth, Ky., 275 S.W.2d 928 (1955).

The judgment is reversed with directions that Stallings be granted a new trial.

All concur.


author: LUKOWSKY, Justice.

text:
    LOUISVILLE POLICEMEN’S RETIREMENT FUND, Appellant, v. William K. BRYANT, Appellee.
    No. 75-912.
    Supreme Court of Kentucky.
    Sept. 16, 1977.
    Rehearing Denied Oct. 28, 1977.

      George H. Logan, Hardy, Logan & Hastings, Louisville, for appellant.
    Teddy B. Gordon, Bartley & Gordon, Louisville, for appellee.
   LUKOWSKY, Justice.

Bryant served as a member of the Louisville Police Department from November 1969 until April 1974 when he voluntarily withdrew from service. He seeks to compel the Fund to return the $2,036.37 that he was required to contribute as his share of the pension premium during the period of his service. The Fund contests his right to a refund of his contribution on the basis that City of Louisville Ordinance section 135.17, a part of the ordinance which establishes and governs the Fund, provides that there shall be no refund of contributions if a police officer does not complete at least five years of service. The trial judge granted summary judgment in favor of Bryant. We reverse.

In City of Newport v. Shields, Ky., 521 S.W.2d 82 (1975) we held that the rights of persons participating in a pension fund are governed entirely by the terms of the pension fund and the statutes under which it is operated and affirmed a judgment directing a refund. The trial judge has not favored us with a memorandum of decision explaining his action in this case. He apparently has placed too much emphasis on the result and too little emphasis on the rationale of that case.

The statutes decisive of City of Newport v. Shields, supra, entitled a policeman to a refund of his contributions to a pension fund when he withdrew from service with the city at any time prior to retirement and provided that his right to his contribution was vested. KRS 95.866; KRS 95.877. However, these statutes apply only to pension funds of cities of the second class. KRS 95.851(b). Newport is a city of the second class, but Louisville is a city of the first class.

Police retirement funds for cities of the first class are governed by KRS 95.290. This statute provides that cities of the first class may enact ordinances establishing a police retirement fund. It makes no mention of either refunding of contribution or vesting of rights. It is apparent that the General Assembly has elected to leave these questions to the discretion of the legislative body of first class cities.

Pursuant to this grant of authority, Louisville chose to establish a fund which did not permit police who left the force to withdraw any part of their contribution unless they had served at least five years and which did not grant a vested right in such contribution. This decision is neither arbitrary or capricious. It is supported by rational considerations, e. g., it encourages police to remain in service, it removes at least one uncertainty for the actuary in making his calculation of the needs of the fund and provides money for the administration of the fund. The scheme does not run afoul of section 2 of the Constitution of Kentucky and counsel have, commendably, not attempted to lay a federal constitutional smoke screen. Louisville Ordinance section 135.17 should be enforced as written.

The judgment is reversed and the cause is remanded to the Jefferson Circuit Court with directions to dismiss Bryant’s complaint at his cost.

All concur.

      . See also Anno.: Pension Plan-Rights of Employee, 42 A.L.R.2d 461 at 482.

      . The Federal Pension Reform Act specifically exempts governmental pension funds from its coverage. Consequently, it imposes no restraints on Louisville’s discretion. 29 U.S.C. sec. 1003(b).

      .If they had, they would have found it dissipated by the westerlies of Muzquiz v. City of San Antonio, W.D.Tex., 378 F.Supp. 949 (1974).


author: DONNELLY, Judge.

text:
    Wanda June RANDLE et al., Appellants, v. James R. SPRADLING, Director of Revenue, et al., Respondents.
    No. 59999.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1977.
    Rehearing Denied Oct. 11, 1977.
    J. D. Riffel, The Legal Aid and Defender Society of Greater Kansas City, Inc., Kansas City, for appellants.
    S. Joel Wilson, Asst. Atty. Gen., Jefferson City, for respondents.
   DONNELLY, Judge.

This is a suit for declaratory judgment and injunctive relief. It was transferred here, before opinion, from the Kansas City District of the Court of Appeals. We decide it “the same as on original appeal.” Mo.Const. Art V, § 10.

Appellants Wanda June Randle and George Replogle were involved in automobile accidents in 1973. They had no liability insurance : , the time of the accidents. They recei ed notices from the Missouri Department of Revenue (under Chapter 303, RSMo 1969, The Motor Vehicle Safety Responsibility Law), that it had been “determined after a review of records of this accident that there is a reasonable possibility of a money judgment being rendered against you.” Randle and Replogle sought administrative hearings to determine whether there was a reasonable possibility of a judgment being entered against them.

Randle and Replogle contend they are entitled to the procedures provided by The Administrative Procedure Act (Chapter 536, RSMo 1969). The trial court did not agree and held that the “procedures established by defendants, pursuant to Chapter 303, RSMo, to determine if there is a reasonable possibility of a judgment being rendered against an owner or operator of a motor vehicle involved in an accident do not constitute a ‘contested case’ within the definition of Section 536.010(2), RSMo.” Accordingly, the trial court held the procedures of Chapter 536, supra, were not available to appellants.

Section 536.010(2), Laws of Mo. 1976, p. 768, defines a “contested case” as a “proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing * *

In State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 356 (Mo. banc 1958) this Court noted that “contested case” within the meaning of the Administrative Procedure Act “does not mean every case in which there may be a contest about ‘rights, duties or privileges’ but instead one in which the contest is required by law to be decided in a hearing before an administrative agency.” This Court then held that a proceeding against the superintendent of the division of insurance was not a “contested case” because the superintendent was not required by law to hold a hearing on the claims asserted in the case.

We are confronted with a different situation here. Section 303.290, RSMo 1969, provides that the director of revenue “shall provide for hearings upon request of persons aggrieved by orders or acts of the director under the provisions of this chapter.” In view of the provisions of Section 303.290, supra, we must conclude that a matter heard pursuant to said section is a “contested case” under Section 536.010(2), supra, and that the provisions of Chapter 536, supra, apply. Hearings are required by law in this situation.

Accordingly, Wanda June Randle and George Replogle are entitled to the procedures provided by Chapter 536, RSMo 1969.

The judgment is reversed and the cause remanded with directions to proceed in a manner consistent with this opinion.

All concur.