author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Jim ODZARK, Appellant.
    No. 9934.
    Missouri Court of Appeals, Springfield District.
    Jan. 8, 1976.

      John C. Danforth, Atty. Gen., K. Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    J. Miles Sweeney, Johnson & Sweeney, Springfield, for appellant.
    Before BILLINGS, C. J. and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

In a jury-waived trial the defendant was found guilty of carrying a concealed weapon (pistol) in violation of § 564.610, RSMo 1969, and sentenced to a term of three years in the custody of the Department of Corrections. Contending he was denied a speedy trial and the evidence failed to establish concealment of the weapon, defendant prosecutes this appeal. We affirm.

In the main, the facts giving rise to the instant charge are set forth in State v. White, 529 S.W.2d 22 (Mo.App.1975), and will not here be repeated. Suffice to say that defendant was present October 17, 1973, when undercover narcotic agents purchased a large quantity of marijuana from Dan Gullet and Jud White and a search of defendant resulted in the removal of a short-barreled, fully-loaded .38 caliber pistol from the waistband of his trousers.

Gullet, White and the defendant were charged with violating the Narcotic Drug Act, but that charge against the defendant was subsequently dismissed. Thereafter, on May 6, 1974, a felony complaint for carrying a concealed weapon was lodged against the defendant and he was arrested. Following a preliminary hearing, defendant was charged in this case by an information filed June 6, 1974. On the latter date defendant was arraigned and entered a plea of not guilty. On July 3, 1974, the defendant filed “motion to quash and dismiss information”, assigning as grounds the state’s delay between the time the weapon was found on him and the date the present charge was initiated. He alleged, inter alia, his constitutional rights to a speedy trial and due process had been abridged. Defendant’s motion for change of judge was sustained October 4, 1974. An evidentiary hearing was conducted on his “motion to quash and dismiss information” on November 11, 1974, and it was denied. The court set the case for trial November 13, 1974, but at defendant’s request it was reset and held on December 13, 1974.

We first consider defendant’s point that the nearly seven-month delay between the time the officers found the pistol on his person and his arrest on the weapon charge violated his right to a speedy trial as guaranteed by both the Federal and Missouri Constitutions.

The right to a speedy trial as insured by the Sixth Amendment of the United States Constitution was ruled applicable to state prosecutions, by way of the Fourteenth Amendment, in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Missouri’s guarantee of the right to a speedy trial was first embodied in the Constitution of 1820 [Art. XIII, Sec. 9] and is now found in Art. I, Sec. 18(a), Constitution of 1945.

In addition to the speedy trial provisions contained in the Federal and Missouri Constitutions, the General Assembly of this state has further implemented the right to a speedy trial by enacting general and special statutes of limitations for criminal cases. Thus, for felonies other than capital offenses and bribery or corruption in office, § 541.200, RSMo 1969, prescribes a three-year limiting period between the commission of an offense and indictment or information. And once prosecution is initiated, §§ 545.890, 545.900 and 545.920, RSMo 1969, limit the number of court terms trial of the case can be delayed by inaction of the state.

The difficulty inherent in defendant’s contention in this case, that the delay between the offense and his arrest on the charge abridged his speedy trial right, is that neither the United States Supreme Court nor our Supreme Court has given the broad interpretation to the speedy trial guarantee defendant suggests.

The issue was squarely presented in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and the court held the right to a speedy trial did not extend to the period prior to arrest. “[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.” 404 U.S. at 320, 92 S.Ct. at 463.

The Missouri Supreme Court considered the identical contention in State v. Deckard, 459 S.W.2d 342 (Mo.1970), and after reviewing various federal and state decisions concluded “No case cited by appellant and none found by us holds that a mere delay between offense and arrest, short of the period of limitation for the offense involved, deprives a court, as a matter of law, of jurisdiction to proceed in the case and requires dismissal of the indictment or information. A concise summary of the basic holding in the cases which have considered this question is found in United States v. Scully (1969) 2 Cir., 415 F.2d 680, 683[2-5]:

“ ‘ * * * [AJppellant has not sustained his burden and has not shown that “the delay has so impaired his capacity to prepare a defense as to amount to an infringement of his right to a speedy trial or a denial of due process.” United States v. Capaldo, 402 F.2d 821, 823 (2 Cir. 1968). A delayed arrest does not in and of itself deny any constitutional rights. The Statute of Limitations is a citizen’s primary guarantee protecting him from having to answer overly stale criminal charges. United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). If one is arrested within the time limits imposed by the applicable Statute of Limitations it is incumbent upon him to show that he suffered some significant prejudice as a result of any delay in the making of the arrest. * * *’ [Emphasis supplied.]” 459 S.W.2d at 345.

Our Supreme Court has also ruled that the constitutional right to a speedy trial has no application until a criminal prosecution is commenced by either indictment or information. State v. York, 511 S.W.2d 758 (Mo.1974); State v. Caffey, 438 S.W.2d 167 (Mo.), cert. denied, 396 U.S. 853, 90 S.Ct. 114, 24 L.Ed.2d 102 (1969).

Under the Federal Constitution the defendant’s right to a speedy trial did not arise on the weapons charge until he became an accused as a result of that arrest. “The appellant’s Sixth Amendment right to a speedy trial was not denied, since that protection is not triggered until a criminal suspect becomes an ‘accused,’ either by arrest or indictment.” United States v. Jackson, 504 F.2d 337, 338-339 (8th Cir. 1974), cert. denied 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975).

In his brief herein the defendant has placed considerable reliance on Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), in asserting the prearrest delay violated his constitutional rights.

In Ross, a majority of the court concluded the prearrest delay resulted in prejudice to the defendant and violated the due process provision of the Fifth Amendment. The dissent charged the principal opinion erroneously undertook to weigh the evidence and supervise the police in their conduct of an investigation. The doctrine espoused in Ross was reviewed at length by our Supreme Court in State v. Deckard, supra, and commented upon by the Eighth Circuit Court of Appeals in United States v. Jackson, supra. The Ross opinion was written prior to the United States Supreme Court decision in United States v. Marion, supra, which withheld the operation of the Sixth Amendment until the point of accusation, either by arrest or indictment. “There is no constitutional right to be arrested.” Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966).

We hold the delay between the commission of the offense of carrying a concealed weapon and the defendant’s arrest thereon, or the filing of the information against him, did not abridge the defendant’s right to a speedy trial as guaranteed by the United States and Missouri Constitutions. If defendant’s challenge to the delay be considered as claiming a violation of his right of due process under the Fifth Amendment, he fares no better since no prejudice was demonstrated by the delay. His allegations of prejudice are wholly without evidentiary support.

Defendant’s remaining point is that the evidence failed to establish the element of concealment of the pistol on his person. At trial he freely admitted he was carrying the weapon but maintained the gun was stuck into the waistband of his pants in such a fashion it was not concealed from view.

Concealment is an essential element of the offense of carrying a concealed dangerous and deadly weapon. State v. Tate, 416 S.W.2d 103 (Mo.1967). The test of concealment is whether the weapon is so carried as not to be discernible by ordinary observation. State v. Bordeaux, 337 S.W.2d 47 (Mo.1960).

On the night in question the defendant was wearing an unbuttoned jacket over his shirt, and the bottom of the jacket extended four inches below the top of his trousers. According to the defendant he had the pistol stuck in the front waistband of his pants with a portion of the weapon clearly visible to anyone who looked. However, although the officers were in close physical proximity to the defendant during an approximate two-hour period, and had been alerted to the possibility the defendant might be carrying a weapon by reason of his remark he was “carrying heat”, neither of the officers saw the pistol until he was searched following the trio’s arrest for selling marijuana.

In a jury-waived criminal case the findings of the court have the force and effect of the verdict of a jury. Rule 26.-01(b), V.A.M.R.; State v. Daniels, 487 S.W.2d 465 (Mo.1972). We have therefore reviewed the evidence in the same manner as though a verdict of guilty had been returned by a jury and find there was substantial evidence to support the finding. Both officers had ample opportunity to observe the defendant. By reason of the nature of the transaction the officers were embarked upon, the amount of money involved, the defendant’s remark and the further fact he was a stranger to them, the undercover agents observed him with even greater care than they ordinarily used. The officers stated the weapon carried by the defendant was not visible to them and was only revealed as a result of the “frisking” and search of the defendant. The trial court obviously believed their testimony and it was sufficient to support its findings. Defendant’s point is denied.

We have examined those matters required to be reviewed under Rule 28.02, V.A.M.R., and find no error.

The judgment is affirmed.

All concur.

      . The Sixth Amendment to the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial
      Missouri Constitution Art. I, § 18(a), provides “That in criminal prosecutions the accused shall have the right to ... a speedy public trial . . . .”

      . In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court adopted a balancing test of the speedy trial issue which requires consideration of four factors: (1) the length of the delay, (2) the reason for delay, (3) defendant’s assertion of his right to a speedy trial, (4) the prejudice to the defendant. See Un-viller, Barker v. Wingo: Speedy trial Gets a Fast Shuffle, 72 Colum.L.Rev. 1376 (1972); A.B.A. Standards, Speedy Trial (Approved Draft, 1968); Notes, 57 Colum.L.Rev. 846 (1957); 57 Cornell L.Rev. 794 (1972); An-not., 85 A.L.R.2d 980 (1962).

      . The majority opinion in United States v. Marion in n. 8 states: “Most [federal] courts of appeals have recognized the Sixth Amendment right to a speedy trial only after a prosecution has been formally initiated or have held that the sole safeguard against pre-indictment delay is the relevant statute of limitations . . . . Some courts of appeals have stated that pre-indictment delay may be cause for dismissal, but they have seemed to treat the question primarily as one of due process (although the Sixth Amendment is occasionally mentioned) and have required a showing of actual prejudice . . There is a unique line of cases in the District of Columbia Circuit concerning pre-indictment delay in narcotics cases where the Government relies on secret informers and (frequently) on single transactions. These cases take a more rigid stance against such delays, but they are based on the Court of Appeals’ purported supervisory jurisdiction and not on the Sixth Amendment [citing Ross and others].” 404 U.S. at 315, 92 S.Ct. at 461.

      . Defendant admitted that none of the people present in Gullet’s apartment, where the officers first met defendant that night and the marijuana sale was agreed upon, nor Gullet and White at the Fountain Plaza Apartment, where the sale was to be consummated, commented on seeing the pistol protruding from defendant’s belt “right in front” as he testified. “Q: So a whole evening that you walked around with a pistol sticking out of your belt, nobody ever said anything to you about it?” “A: No.”


source: Caselaw Access Project

author: DROWOTA, Judge.

license: Public Domain

text:
    Charles E. WILGUS et al., Plaintiffs-Appellees, v. The CITY OF MURFREESBORO et al., Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 28, 1975.
    Certiorari Denied June 23, 1975.

      Thomas L. Reed, Jr., Granville S. R. Boul-din, Murfreesboro, Tenn., for defendants-appellants.
    Dicken E. Kidwell, Murfreesboro, Tenn., for plaintiffs-appellees.
   DROWOTA, Judge.

OPINION

Appellants seek reversal of a judgment of the Chancery Court for Rutherford County declaring a zoning ordinance of the City of Murfreesboro void as violative of the City Charter.

The Murfreesboro City Council on August 15,1974, enacted an ordinance rezoning certain property owned by appellants from a Medium Density Residential District (R-2) to an Intermediate Business District (B-2), which would permit use of the property for a proposed shopping mall.

On September 5 appellees, owners of nearby residential property, brought suit challenging the ordinance, naming as defendants the City of Murfreesboro and various officials thereof. The owners of the rezoned property were permitted to intervene as parties defendant pursuant to Rule 24, TRCP. On September 23, following a hearing on plaintiff-appellees’ application for a restraining order, the Chancery Court temporarily enjoined use of the property as an Intermediate Business District.

Plaintiffs-appellees contended that the ordinance was enacted in violation of Article III, § 5 of the Charter of the City of Murfreesboro because it (1) was not passed by a four-fifths vote of the City Council, (2) was not published three times prior to its adoption, and (3) was not submitted, as amended, to the City Planning Commission. The Chancellor concluded that the proposed ordinance did not require a four-fifths majority vote because plaintiffs had not filed a timely written protest thereto, as required by the Charter. The Chancellor found the ordinance void, however, because it was not published three times before its enactment and because an amendment to the ordinance on third and final reading was substantial enough that consideration by the Zoning Commission was required before its adoption. The owners of the rezoned property perfected this appeal and have assigned as error the Chancellor’s holdings with respect to (1) the impropriety of the ordinance’s publication and (2) the Council’s failure to re-submit it to the City Zoning Commission.

The record may be summarized as follows. Appellants own a strip of land in Murfreesboro fronting approximately 900 feet on Broad Street, being approximately 200 feet deep, which had been zoned B-2 prior to the events giving rise to this action. Subsequently, they acquired about twelve acres of land immediately behind and adjoining their B-2 property, which was zoned R-2 and is the property involved in this appeal. Appellants requested a rezoning of the tract to B-2, and the City Zoning Commission recommended the change. Upon receiving the recommendation, the City Council directed the publication of a notice of a public hearing on the proposal, scheduled for July 13, 1974. The notice was published in the Murfreesboro Daily News Journal on May 28, 1974. The ordinance was passed on first and second readings on May 23 and May 30, respectively.

Prior to enactment on third and final reading, the area to be rezoned was reduced by removing from the description a “buffer zone” twenty feet wide on the three sides of the tract adjacent to residential property. No other change was made in the text of the ordinance, but certain conditions on use of the property were created by a letter of August 15, 1974, from the City Attorney to the Murfreesboro Building Department. It was stated that the Mayor and City Council were requiring the owners of the rezoned property to execute a performance bond assuring that hemlock trees would be planted in the buffer zone at fifteen foot intervals, that three thirty-foot wide entrances would be established at specified points, and that any building to be erected must be located in the center of the tract. One of the tracts’ owners testified that the owners had agreed to furnish a sewer easement across the property as part of the consideration for the zoning change.

I.

Article III, § 5 of the Charter of the City of Murfreesboro provides, with respect to zoning ordinances, that “Notice of the adoption of such amendment, supplement or change in the ordinance shall be given by publishing such notice three (3) times in some daily or weekly newspaper of general circulation in the city.” It is admitted by appellants that only one notice of the zoning ordinance at issue was published by the City. Appendix A to the Murfreesboro City Code, containing the zoning laws under which the City has operated for many years, provides, however, for giving only one notice of a proposed ordinance by publication in a newspaper of general circulation. It is an elementary principle that ordinances of a city are subordinate to charter provisions. Barnes v. Ingram, 217 Tenn. 363, 397 S.W.2d 821 (1966). The city may not by ordinance nullify a mandatory provision of its charter. The only question is whether plaintiffs-appellees had standing to raise the impropriety of the notice. The proof shows that the appellees had notice of the proposed ordinance and attended City Council meetings to make known their opposition to the rezoning. The Supreme Court held in White v. Henry, 199 Tenn. 219, 232, 285 S.W.2d 353, 359 (1955), that improper notice was “immaterial in any view of the matter” when plaintiffs had notice of the proposal and attended Planning Commission and City Council meetings to oppose its adoption.

The Chancellor held that White was not binding in this case because it did not deal with violation of a charter provision requiring publication. While White does not indicate the nature of the publication requirement, counsel for appellants has called to the Court’s attention the Supreme Court record in the White case, now stored in the State Archives, which demonstrates that the publication provision was a charter requirement. See White v. Henry, Supreme Court at Knoxville, Knox Equity, Box 136, 2222 E.R.C. No., State Library and Archives. We have examined the record before the Supreme Court in White and find that the holding of the Court was in reference to a charter provision of the City of Knoxville. We are constrained to hold that plaintiffs-appellees cannot make objection to the ordinance based on the city’s failure to give proper notice to the public of its pendency, when appellees had notice of the proposed ordinance and knowledge of the public hearing and did in fact appear before the City Council and voice their complaints on several occasions. Appellants’ first assignment of error is sustained.

II.

Appellants contend the Chancellor also erred in holding that the City Council’s revision of the proposed zoning amendment required its resubmission to the Zoning Commission.

T.C.A. § 13-704 provides with respect to zoning changes that “no amendment shall become effective unless it be first submitted to and approved by the planning commission or, if disapproved, shall receive the favorable vote of a majority of the entire membership of the chief legislative body.” This requirement is incorporated in Article XII of Appendix A to the Murfrees-boro Code, which provides that “no such amendment shall become effective unless the same be first submitted for approval, disapproval or suggestions to the City Planning Commission.”

In Metropolitan Government of Nashville and Davidson County v. Mitchell, et aL, unreported opinion, cited by appellants, of the Court of Appeals of Tennessee, Middle Section at Nashville, filed August 30, 1974, this Court had before it a similar issue. In that case the Metropolitan Code required that “no ordinance shall become effective until it shall have passed by majority vote on three different days,” but the ordinance at issue had been substantially and materially altered on second reading. We held that the scope and effect of the pending proposal had been altered to the extent that its essential elements had been fundamentally disturbed, and that consequently it assumed a new identity and was a new bill, requiring passage on three different days pursuant to the Metropolitan Charter. We noted, however, that minor or merely formal amendments do not constitute such a change.

If a proposed zoning ordinance is amended so substantially that a new proposal is, in effect, created we think it clear that both the state statute and municipal code provision require it to be submitted to the planning commission for its consideration before the municipal legislative body may finally act upon it. To hold otherwise would defeat the clear intent of the statutory requirement that the legislative body have available, before it acts, the recommendations of the commission. We do not suggest, however, that the test for determining whether a proposed zoning ordinance, as amended, must be resubmitted to a planning commission is the same as the test for determining whether a proposed ordinance, as amended, must be passed on three different days because it became a new bill. The purposes of the two requirements are not identical.

The purpose of requiring submission to the planning commission is to give the legislative body the advantage of the commission’s expertise on land use planning with respect to the proposal that it must either adopt or reject. A revision in a proposed zoning ordinance that would not, under Mitchell, create a new bill mandating passage for the requisite number of days under an applicable charter or statute, might nevertheless be so important as to require resubmission of the proposal to the commission. The test is whether the revision is so substantial as to create a strong probability that the commission’s recommendation would have been affected by the revision. If the change is both inconsequential and produces no detrimental effects to those who would oppose it, then the revised proposal is not required to be resubmitted.

The lawmaking powers of the municipality being vested in its governing body, there is no requirement that it abide by the commission’s suggestions. It is required, however, that it have before it those suggestions when it acts. The statutory requirement is meaningless unless the fundamental considerations created by the terms of the ordinance militating for and against its adoption were actually before the commission. Consideration by the courts of the substantiality of the revision is properly limited to an examination of the face of the ordinance.

In the instant case the only change in the proposed ordinance was the creation of an area to remain R-2 that would constitute a buffer zone twenty feet wide inside the perimeter of that portion of the twelve acre tract facing residential property. The amendment would appear to be beneficial rather than detrimental to those who oppose it. The amendment did not create so substantial a change that resubmission to the planning commission was required, because it was not likely to have any effect on the commission’s recommendation. Appellants’ second assignment of error is sustained.

The judgment of the Chancery Court is reversed and the case is dismissed.

SHRIVER, P. J., and TODD, J., concur.

      . T.C.A. § 13-703 provides for one publication of proposed zoning ordinances.
      The Murfreesboro Charter is not in conflict with the statute, which provides only a minimum notice requirement that the municipalities in their discretion may make more stringent. The City of Murfreesboro has asked for the guidance of the Court on the question of how many publications of its zoning ordinances are necessary for a legal enactment. A charter requirement prescribing a method to be pursued by a municipal legislative body in adopting ordinances is mandatory, and an attempted exercise that is not in compliance with such requirements is void. Rutherford v. Nashville, 168 Tenn. 499, 79 S.W.2d 581 (1935). A pattern of noncompliance, no matter how long established, does not vitiate a charter requirement. The only escape from its burden is repeal in the manner prescribed by the charter; mere fiat by the city can never suffice.


author: MATHERNE, Judge.

text:
    Ann Patricia Welsh MAYER, Appellee, v. Frederick John MAYER, Appellant.
    Court of Appeals of Tennessee, Western Section.
    June 18, 1975.
    Certiorari Denied by Supreme Court Dec. 1, 1975.

      John E. Hundley, Memphis, for appellant.
    James S. Cox, Krivcher & Cox, Memphis, for appellee.
   MATHERNE, Judge.

The defendant Frederick John Mayer, divorced husband and father, claims error wherein the trial court, without a hearing, found him in contempt of court; fixed future child support payments without a hearing on the father’s ability to pay or the needs of the children; awarded garnishee fees and garnishee’s attorney fees; and reserved punishment for contempt to a future unnamed date.

We observe from the outset the defendant’s attorney attempts to present many matters in this Court which he did not present in the trial court. The attorney may have experienced difficulty in communicating with his out of state client, and the record reveals this attorney came into the lawsuit at a late date.

There is no bill of exceptions filed in this Court, and for that reason the plaintiff-appellee moves the appeal be dismissed. According to the record there was no evidence submitted and no stipulations made for the consideration of the trial judge. The defendant, after judgment was entered, filed in the trial court various papers wherein facts are alleged, but those facts were not presented at the trial and will not be considered by this Court.

The absence of a bill of exceptions will not prevent a review of errors assigned to the technical record. We therefore overrule the motion to dismiss this appeal.

The decree of divorce was entered on July 11, 1972. The plaintiff wife was granted a divorce and awarded custody of the “minor children.” The decree does not state the number of minor children nor their ages. The decree incorporated by reference a Property Settlement Agreement, which awarded a house at 3984 Walnut Grove Road to a trustee “for the use and benefit of Patricia Welsh Mayer during her lifetime and at her death to the children of our marriage then living or their heirs per stirpes.” The defendant father agreed to pay $300 per month child support in periodic payments on or about the first and fifteenth day of each month, with the right in either party to apply for an increase or decrease dependent upon a change in circumstances.

By affidavit dated September 14, 1973, which the trial judge found was filed on that date, the plaintiff wife deposed the defendant had paid only $750 for child support since the rendition of the divorce decree, and $4,200 was past due and unpaid as of that date. The affiant alleges the defendant to be a non-resident of the State of Tennessee, and a resident of the State of Louisiana. The affidavit further reveals that on August 20, 1973, the Last Will and Testament of Esther Ward Patterson, deceased, was filed in the Probate Court of Shelby County, Tennessee. The affiant avers the defendant father is named in that will as the beneficiary to receive certain certificates of the common stock of American Telephone and Telegraph Company. The affiant avers the National Bank of Commerce, Memphis, Tennessee, is named executor under the will. The affiant prayed a garnishment issue against the executor requiring it to deliver into court a sufficient number of stock certificates of the named corporation to satisfy the sum of $4,200, plus all costs. The garnishment issued against the executor and was served on September 24, 1973.

By order entered February 22, 1974, in response to a motion of the plaintiff filed January 16, 1974, the court ordered the executor as garnishee to convert into cash a sufficient amount of the stock certificates to equal $4,200 plus costs, and to pay that amount into the court. In this order the court found the executor held certificates of the named corporation which amount to at least 84 shares of its common stock.

On March 8, 1974, the plaintiff filed another affidavit to the effect $1,500 more child support was past due and unpaid. Another garnishment issued and was served on the executor on March 12, 1974.

On May 10, 1974, the defendant father filed a petition for reduction of child support. This sworn petition alleges there are sufficient assets in the hands of the executor to satisfy all past due child support payments. The petitioner further alleges only two of the six children are under the age of 18 and living with their mother. The ages of the other children are alleged, and it might be found there were four minor children at the time of the divorce. The petitioner alleges he was unable to comply with the former orders of the court; his income and expenses amount to about $432 per month, which will be shown to the court at the hearing on the petition. The petitioner prayed the amount of child support payments be reduced in accordance with the number of children now under 18 years of age, and in accordance with the petitioner’s ability to pay.

No answer was filed to this petition for reduction of child support. On the date the petition was filed, May 10, 1974, the court entered an order referring the matter to “the Divorce Referee for a hearing and his report thereon.” There is an instrument in the record relating to this petition bearing the hand written words — “Dismissed on order of Referee, 5-21-74.” There is no other instrument in the record concerning the petition to reduce child support payments, nor was there a hearing had on the issues raised therein.

On May 13,1974, the plaintiff wife filed a petition for citation for contempt and im-poundment of all assets of the defendant as held by the executor bank. An order was entered on May 13, 1974, granting writ of injunction against the executor that it not pay over to the defendant any property it held for him; writ of scire facias was authorized against the defendant to show cause why he should not be adjudged in contempt of court; the hearing on the petition for contempt was set for May 24,1974.

The defendant on May 20, 1974, filed a sworn answer to the petition for contempt. By answer the defendant states he assumed the former order of the court that the money be paid into court by the executor would purge the defendant of any alleged contempt. The defendant further referred to his petition to reduce child support payments and his prayer for relief according to the number of children now under 18 years of age, and his ability to pay. The defendant prayed for general relief.

On May 24, 1974, the date set for the hearing, the plaintiff filed another affidavit that the defendant was in arrears for an additional $900 child support payments since her last affidavit. Garnishment was prayed, issued and served on the executor on May 31, 1974.

The trial court on May 24, 1974, entered the order now appealed from. The order attempts to be rather sweeping and all inclusive of all matters before the court, or that might hereafter come before the court.

The first paragraph of the order of May 24th states what and who were before the court as follows:

“This cause came on to be heard on the 24th day of May, 1974, upon the Petition for Contempt and to Impound Stock filed by the Petitioner, Ann Patricia Welsh
Mayer; upon the writ of scire facias directed to the respondent, Frederick John Mayer; upon notice of this hearing being given to the respondents, National Bank of Commerce, Memphis, Tennessee, upon statements of counsel for all parties, all parties being represented by counsel and all parties being present at the time of the hearing of this cause, and upon the entire record in this cause, from all of which . .

The order then reviews all the proceedings heretofore set out and finds the executor holds certificates of stock to 84 shares of the common stock of American Telephone and Telegraph Company for the defendant, and on the date of the hearing that amount of stock was worth $14,000. The order then proceeds to decree:

(1) The defendant was in arrears of child support payments in the amounts of $4,200, $1,500 and $900. The executor had paid $4,200 into court, and upon the payment of $2,400 by the defendant, plus costs, he would be current through the month of May, 1974.
(2) The defendant was in willful and deliberate contempt of court.
(3) The defendant is unlikely to make future payments of child support, and unless the assets of the defendant held by the executor be impounded, the court would be unable to enforce future payments of child support.
(4) The plaintiff now has custody of two minor children; Elaine Catherine Mayer who was born on April 14, 1957, and William Ward Mayer who was born on July 15, 1960. The court awarded future child support in the amount of $150 for each child until it reaches the age of 18 years or is otherwise emancipated. The court found this resulted in $1,575 for future payments for Elaine, and $7,325 as future payments for William.
(5) The executor was ordered to convert sufficient stock into cash as to amount to $8,900 [$1,575 plus $7,325], plus such expenses as may be incurred by the executor in complying with the two garnishments now outstanding, place that amount on an interest bearing account and hold the same subject to future orders of the court.
(6) The court awarded $500 attorney’s fee to the plaintiff wife; $250 garnishee fee to the executor; and $250 attorney’s fee to the garnishee-executor, and ordered sufficient stock sold to pay those amounts, and authorized the executor to make the payments within a reasonable time. »
(7) After converting into cash sufficient certificates of stock to meet the foregoing requirements, the executor may proceed with its payments to the defendant without further order of that court.
(8) Should the defendant fail to make the child support payments as ordered in the future, the plaintiff may petition the court and the court will order the bank to make payments directly to the plaintiff as the occasions arise over the years.
(9) Punishment of the defendant for his willful and deliberate contempt of court is reserved.

We hold the trial court, sitting as a court of equity, had the authority to impound the assets of the defendant in the hands of the executor to the extent necessary to enforce the prior order of the court. T.C.A. § 21-1209; Kizer v. Bellar (1951), 192 Tenn. 540, 241 S.W.2d 561. We further hold the trial court had the authority to impound assets of the defendant to insure future payments of child support, the defendant being a non resident of Tennessee.

We cannot agree with the summary procedure employed by the trial court in the face of a sworn answer to the petition for citation for contempt, the presence of the defendant in the courtroom, and the sworn petition of the defendant for a reduction of child support payments left unanswered and not heard.

Under T.C.A. § 36-828, a court granting a divorce may award custody of the children of the parties and enter a decree “that suitable support be made by the natural parents.” And, “Such decree shall remain within the control of the court and be subject to such changes or modification as the exigencies of the case may require.” Under this statute a decree for the support of minor children, even as to past due and unpaid installments, may be modified. Crane v. Crane (1942), 26 Tenn.App. 227, 170 S.W.2d 663; Gossett v. Gossett (1951), 34 Tenn.App. 654, 241 S.W.2d 934.

Under this record there is an allegation by the defendant that the number of minor children has been reduced since the divorce decree. The divorce decree apparently vested a home in the wife and minor children. There was no hearing on the ability of the wife to aid in the support of the children. The needs of the children were not shown. The defendant father by sworn petition states he is unable to meet the demands of the prior court decree, and offers to prove this fact at the hearing on his petition for a reduction in child support payments. He was never given a hearing.

As to the father’s ability to pay the past due installments and future payments, we have only the fact he was bequeathed certificates of stock worth $14,000. Under the decree of the trial court the defendant was ordered to pay a total of $12,300, plus future expenses, charges or commissions due the executor for answering two more garnishments, which according to the amounts allowed by the court for answering one garnishment, would amount to at least $1,000 additional. We thus see the defendant summarily stripped of $13,300; and held under the club of a finding of contempt, all without one word of proof.

If all of the foregoing be justified, it can only be decreed, under this record, after a hearing.

It also appears the haste with which the decree was entered, without proof or a hearing, resulted in an erroneous finding of the amount due through May 30,1974. The trial judge found the $4,200 paid into the court by the garnishee, plus the $900 and the $1,500 still owing, would make the defendant current through May 30, 1974. These figures total $6,600. It appears the time period from July 11, 1972, the date of the divorce decree, until May 30, 1974, amounts to one year, ten months and nineteen days, or rounded to 23 months. Twenty-three months at $300 per month would require the payment of $6,900 through May 30, 1974. The plaintiff admitted $750 had been paid, leaving a total due of $6,150. In that the payments were to be due on the first and fifteenth of each month these figures may vary about $150 either way. It appears the trial judge accepted the allegations of the three affidavits of the plaintiff, which are erroneous.

The defendant insists he was denied a hearing on the charge of contempt. The record reflects, and the parties do not contend otherwise, there was no hearing on this charge. Yet the defendant was found to be in willful and deliberate contempt of the court.

It is argued the defendant was present in the courtroom with his counsel and he did not offer proof on the charge of contempt of court. It is true the defendant and counsel were present. It is also true the burden is on the defendant charged to prove his inability to perform the decree as ordered. This lawsuit was at that time in an unusual posture before the trial judge, wherein the court had previously issued an injunction in effect impounding certificates of stock belonging to the defendant with a total value of $14,000. As heretofore noted about $6,150 paid into court would have made the payments current.

Instead of ordering the executor to pay that amount, or such amount found as just and proper, the court acknowledged $4,200 had been paid into court, and ordered the defendant owed an additional $2,400. And, apparently because of this additional amount then owing, found the defendant in contempt. It appears the trial court turned its attention more toward decreeing the amount of future child support and securing those payments, again without a hearing, instead of concentrating on whether the defendant was in contempt, considering the existence of assets under the control of the court with which to pay any amount that might be found due under the prior decree.

We hold the trial judge should have ordered funds under his control paid into court in such amount as, after a hearing, he determined to be owing by the defendant. The trial judge could then, on a hearing, turn his attention to the issue of what should be paid in the future and how those payments might be secured.

It seems the trial judge announced the defendant in contempt and, for no obvious reason to this Court, left that edict dangling over the head of the defendant. There is no such thing as a suspended sentence for civil contempt. There is also no such thing as contempt in futuro. Funds were available to the court to pay all amounts owing—that is what should have been ordered, after a hearing, and, under this record, no finding of contempt of court should have issued for the reason of being in arrears of child support payments.

Any proceeding under a citation to show cause for not being in contempt of court places on the trial judge the duty to see that justice is done. Where, as here, there is a sworn answer to the petition, and the defendant is present in the courtroom at the appointed time, the duty is on the trial judge to see that the hearing is had and the defendant is given the positive opportunity to present his defenses. Lack of knowledge on the part of the defendant, or lack of aptitude on the part of his counsel shall not be deemed a waiver of this right to a hearing under the circumstances noted.

In a contempt proceeding there should be no strict or technical rulings against the accused, and the freest opportunity should always be given to him to produce his defense. Bowdon v. Bowdon (1955), 198 Tenn. 143, 278 S.W.2d 670; Robinson v. Air Draulics Engineering Co. (1964), 214 Tenn. 30, 377 S.W.2d 908; Rutherford v. Metcalf (1818), 6 Tenn. 58. The headnote in West Digest that punishment for contempt of court may be summary, citing Pass v. State (1944), 181 Tenn. 613, 184 S.W.2d 1, is not borne out in the body of the opinion.

Under this record, we conclude the trial judge erred as herein stated.

We hold the trial judge erred in awarding the garnishee a fee of $250, and he also erred in awarding the garnishee an attorney’s fee of $250. By statute, T.C.A. §§ 23-708, 26-516, a garnishee is entitled to the compensation and privileges of a witness for his attendance and answer. There is no provision for an attorney’s fee for a garnishee, and we will not create one. On remand, the trial judge will apply the statutes noted as to the compensation due the garnishee.

On remand, the trial judge, after a hearing on the defendant’s petition for reduction in child support payments, shall determine the amount of child support payments for the future and shall order, if proper, the executor to convert sufficient stock into cash and pay that amount into court. There is no need for extensive costs to be accumulated by reason of the bank holding the funds subject to future orders of the court as set out in the decree of May 24, 1974. It appears a bit harsh to tie up $8,900, or any other amount of the defendant’s money, to secure the payment of future child support payments, and at the same time order the defendant to make the payments. It appears the amount found to be due could be used to pay the amounts as adjudged to be due after a hearing on the issue. If it be deemed necessary to order a sum be paid into court for future payments of child support, it is only reasonable to include in the same order a direction to the clerk to pay the prescribed amount periodically to the plaintiff-mother. This can be accomplished at minimum cost as contemplated by T.C.A. § 8-2117.

We observe, for consideration by the trial court, the defendant might make other arrangements for the payment of past and future child support payments, and not be forced into a conversion of his stock into cash. We hold every opportunity to do so should be afforded the defendant, so long as any proposal in that respect will satisfy compliance with the final order of the court.

It results the decree of the trial judge entered May 24, 1974, is reversed and this lawsuit is remanded for a trial in accordance with this opinion.

The cost of this appeal is adjudged against the appellee; the costs in the trial court will be assessed at the trial herein ordered.

CARNEY, P. J., and NEARN, J., concur.


author: GALBREATH, Judge.

text:
    William MORRIS, Jr., Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Oct. 7, 1975.
    Certiorari Denied by Supreme Court Dec. 30, 1975.

      Richard B. Gossett, Chattanooga, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Stephen M. Bevil, Thomas J. Evans, Asst. Dist. Attys. Gen., Chattanooga, for defendant-in-error.
   OPINION

GALBREATH, Judge.

For reasons discussed below we overrule at the outset assignments of error in this appeal challenging the sufficiency of the evidence. Although the defendant denied the acts upon which his prosecution was based, it is axiomatic that when facts are in dispute it is the prerogative of the jury to resolve the issues and that a reviewing court will not disturb a finding of fact by a jury unless the evidence preponderates against it. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173.

The plaintiff in error contends further in this appeal from his conviction for an attempt to commit sodomy (crime against nature) that the 13 year old boy who related the sordid details he described as an attempt to “rape” him was an accomplice. He was not, according to credible proof adduced for the consideration of the triers of fact, which included accounts of how the defendant accosted the boy as he was leaving a store in Chattanooga, promised him money, bought him ice cream, took him to his home, undressed, pulled the child’s pants and underwear off, told him to lay down on a bed and open his legs, and then attempted unsuccessfully to, as the lad put it, “stick his private up my leg”. Due to pain occasioned by the attempt, the boy testified, the defendant went into another room to get a lubricant and he fled from the house leaving his pants and underwear behind. The boy was observed going into the house with the defendant by a neighbor, who also saw the little boy run out without his pants on later. This witness gave the child a ride home and was told upon inquiry that “the guy had tried to rape him”. The boy repeated this to his mother upon reaching home and to a Chattanooga police officer who investigated a prompt complaint.

All of the above detailed evidence establishes to our satisfaction that the boy was not an accomplice, but was a victim.

Even if the youth had been persuaded by the kind treatment of the defendant to permit the act attempted, there is ample corroboration of the victim’s testimony in the record, not the least of which was the testimony of the neighbor who saw the boy running away from the defendant’s home without his pants.

Also, corroborative of the principal witness’s testimony are accounts of statements made to others as soon as possible after the assault. Objections to the testimony of the neighbor, mother and policeman as to the complaint made by the boy were properly overruled. Such a “hue and cry” following a sexual attack are generally admissible as exceptions to the rule against hearsay evidence. Johnson v. State, 201 Tenn. 11, 296 S.W.2d 832. The exception is elaborated upon in an opinion by Judge Oliver of this Court in Klaver v. State, Tenn.Cr.App., 503 S.W.2d 946.

“Quite apart from the rule of res ges-tae, a separate and equally recognized exception to the hearsay evidence rule is that in a prosecution for a sex crime it may be shown by testimony of the prose-cutrix or victim or by that of some other witness that she made complaint of the crime shortly after its alleged commission. Under this special exception to the hearsay rule, such a declaration is regarded only as corroborative of the testimony of the victim, and not as original evidence of the crime charged.”

Defendant also complains that he was not furnished a verbatim transcript of his one day trial before preparation of his motion for a new trial in order that further errors might have been discovered and raised in that motion. Request for this transcript was made after the running of the original period allowed for the filing of this motion. The trial attorney is the same attorney presenting this appeal, and after the filing of the transcript no showing was made as to how its lack prejudiced his client’s rights. (The original motion for new trial was timely filed and heard, and at the hearing additional time granted for an amended and supplemental motion, which supplemental motion included two errors— the denial of the transcript and the alleged systematic exclusion of women from juries.)

The defendant has made no showing of a particular need for the transcript, and it has been consistently held that indigent defendants need not be furnished one merely for a “fishing expedition”. Judge Duncan discusses this at length in the as yet unpublished case of David L. Summerville v. State, Hamilton County, (February, 1975), citing the same factors considered in United States v. Banks, 369 F.Supp. 951 (M.D.Pa., 1974), and concluded:

“Applying the above factors to the case sub judice, we find all of the principles to be the same; the trial was a short one-day trial; no useful purpose for either the trial transcript or of the videotape is shown, nor does defendant’s counsel allege in his motions any need for same; and no likelihood of a dispute between counsel, which would need to be resolved at that juncture, is shown.”
“Clearly, the trial judge was correct in denying these motions, and committed no error in these respects.”

Lastly, defendant complains that the jury panels in Hamilton County systematically excluded women. Defendant failed to raise this allegation by plea in abatement and thus has waived the alleged violation of his rights. See State ex rel. Henderson v. Russell, 3 Tenn.Cr.App. 204, 459 S.W.2d 176, and Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235; Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), relied on by defendant, has specifically been held to be prospective only. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975).

All assignments of error are overruled and the judgment affirmed.

WALKER, P. J., and DUNCAN, J., concur.


author: RUSSELL, Judge.

text:
    Maxine McCOLLUM, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Oct. 20, 1975.
    Certiorari Denied by Supreme Court Dec. 1, 1975.

      Douglas A. Meyer, Chattanooga, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Weldon B. White, Jr., Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Asst. Dist. Atty. Gen., Chattanooga, for defendant-in-error.
   OPINION

RUSSELL, Judge.

Maxine McCollum appeals in error her two convictions for passing forged checks resulting from a single trial upon two separate charges. For passing such a forged instrument(s) involving more than one hundred dollars ($100.00) she was sentenced to three (3) to five (5) years; and in the other case, involving less than one hundred dollars ($100.00) she received a penitentiary sentence of one (1) to two (2) years.

The defense was that all of the checks were genuine and were given to the accused by the purported drawer in payment for personal services rendered. The State’s theory was that blank checks had been stolen from the owner’s hotel room residence and subsequently forged. There was convincing evidence that the checks were forgeries; and the defendant’s theory that checks of $50.00, $50.00, $35.00 and $85.00, all dated the same date and all payable to her, were given by Clara Fotopoulos for maid and personal grooming services is incredible on its face. We note that in her petition seeking suspension of these sentences that plaintiff-in-error avers that “ * * * ⅛ ijas learned the error of her ways, * * *

The threshold assignment of error is that a “tactical plea of guilty” should have been accepted as a matter of constitutional right, despite the declarations of the accused in open court that she was not in fact guilty. Apparently a plea bargain was struck under which guilty pleas would result in six (6) months sentences. However, the transcript reflects that when the accused protested her innocence in open court that the State then withdrew its settlement offer. Defense counsel insisted upon an alleged right to enter the plea and take the six (6) months, while the accused was maintaining her position of innocence and after the State had withdrawn its offer. The trial judge correctly held that no such right existed. While the U.S. Supreme Court has held in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed. 162 (1970) that there was no constitutional error in accepting a guilty plea which contained a protestation of innocence when the defendant had intelligently concluded that his interests required entry of a guilty plea and the record before the judge contained strong evidence of actual guilt, this is not to say that an accused has the absolute right to have such a guilty plea accepted. Quoting from North Carolina v. Alford, supra, it is there said, in footnote 11:

“Our holding does not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead. A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court * * although the States may by statute or otherwise confer such a right. Likewise, the States may bar their courts from accepting guilty pleas from any defendants who assert their innocence. * * ”

Here, the plea was implicitly conditional upon the imposition of a sentence of six (6) months, a facet of a plea bargain offer withdrawn by the State. The trial judge was not required to accept such a conditional plea. We are not faced with the question of whether or not a trial judge must permit and accept an unconditional guilty plea from one protesting innocence, as central to the assignment of error sub judice is the claim to six (6) months as punishment.

The next three assignments of error question the legal sufficiency of the convicting evidence, and are overruled.

Error is assigned “in permitting the State to cross-examine defendant about a check she cashed at Bullen Drugs”. Aside from the question of whether or not a proper objection was made to this testimony, it was obviously competent. The check apparently was another bearing the signature of Clara Fotopoulos and its possession and cashing by the defendant was directly relevant to the factual issues in dispute. Each additional check possessed by Maxine McCollum made her story less credible.

The same disposition is made of the next assignment, and for the same reasons. Certainly the State could cross-examine the defendant about a Clara Fotopoulos check that defendant’s sister attempted to cash during this same time frame. Nor was it error to introduce the sister’s photograph and the Fotopoulos check that the sister attempted to pass.

We overrule the assignment complaining that the defendant was asked on cross-examination about her prior felony (forgery) conviction in federal court. There is no record indication that the evidence was considered on any issue other than credibility.

“The State’s questions in cross-examining defendant contained statements and purported facts not in the record” and “The trial Court erred in not instructing the jury to disregard inadmissible testimony” are assignments of error too general for us to define and discuss, and are not made any clearer by the written argument filed. Rule 17 requires a concise statement of the errors of fact and law complained of, with reference to the parts of the record relied upon to support plaintiff-in-error’s contention as .to the facts.

It is contended that a mistrial should have been entered because the State started to question the defendant about a conviction in the Criminal Court of Hamilton County. An objection was interposed, the jury sent out, and the objection sustained. The incomplete and unanswered question was not repeated in the jury’s presence. The assignment is overruled.

Error is assigned upon “the arguments of the State”. Again, specificity is lacking. The only elaboration in written argument is to three instances of defense objections being sustained. We have carefully reviewed the entire argument and find no reversible error.

The final plaint is that a motion for a written transcript of the trial was denied. This record is here on verbatim video and audio tape recordings, as authorized by Rule 2-B of our Supreme Court. We have discerned no deprivation of plaintiff-in-error’s rights in this instance because of this system, and overrule the assignment.

O’BRIEN and DUNCAN, JJ., concur.


author: GREENHILL, Chief Justice.

text:
    BOWIE NATIONAL BANK, Bowie, Texas, et al., Petitioners, v. Bobby F. STEVENS et al., Respondents.
    No. B-5054.
    Supreme Court of Texas.
    Nov. 26, 1975.
    Rehearing Denied Feb. 18, 1976.
    Jack Connell, Bowie, for petitioner.
    W. John Allison, Jr., J. W. Hassell, Jr., Dallas, for respondents.
   GREENHILL, Chief Justice.

This is a suit in which debtors sought the affirmative equitable relief of cancellation of a trustee’s deed executed after a foreclosure sale under a deed of trust. Trial was to a jury, and judgment was entered upon the jury’s verdict for the defendant bank, Petitioner here. The court of civil appeals reversed the judgment of the trial court and rendered a judgment that the trustee’s deed be set aside. 517 S.W.2d 686. We reverse that judgment and affirm the judgment of the trial court.

The note and deed of trust giving rise to this litigation were executed by A. D. and Fern Gibbons on January 8, 1963, and were given to Fred Ford in exchange for a piece of property in Bowie, Texas. Under the terms of the agreement, the Gibbons were to pay 134 monthly installments of $50.00 each to Ford’s order at the First National Bank, Bowie, Texas. Ford later transferred the note, the vendor’s lien and deed of trust to his brother, C. W. Ford. Sometime prior to July of 1968, C. W. Ford placed the note with the petitioner, Bowie National Bank, as his agent for collection.

Respondent Bobby F. Stevens acquired the property from the Gibbons on December 27, 1968, and assumed payments on the note. At that time, payments were in arrears. Stevens fell further behind by missing a payment in each of the years of 1969, 1970, and 1971.

On March 2, 1971, the Bowie Bank purchased the note from C. W. Ford for the specific purpose of foreclosing on it. It was the Bank’s hope that it could thereby reduce its losses arising from other unrelated loans to Stevens. On acquiring the note, the Bank turned the matter over to its attorney for foreclosure. The required notices were posted on March 8, 1971, and the property was sold to the Bank on April 6, 1971.

When the Bank acquired the note, it did not then notify Stevens, nor did it make presentment or demand payment of the delinquencies. However, on the same day that the notices of sale were posted, Stevens came into the Bank to make a payment on the note. He was told by Franklin Wilson, the Bank’s president, that notices had been posted and that the Bank was foreclosing on the property. At Wilson’s suggestion, Stevens did not make that payment, but applied the $50.00 to another note. After this meeting with Wilson on March 8, 1971, Stevens made no further attempts to pay on the note, nor did he take any other steps to prevent the foreclosure. Instead, he assigned the property to Respondent W. John Allison, Jr., on March 23, 1971, and let the foreclosure sale occur two weeks later without protest. Allison made no attempts to tender payment or prevent the sale after he acquired the property. The jury found that the Bank did accelerate the maturity of the remaining installments and that the Bank notified Stevens that the entire balance had been declared due.

The jury also found that C. W. Ford “had waived the delinquency of payments” prior to March 2, 1971. Since the Bank acquired the note with knowledge of the delinquency, it could not be a holder in due course. Tex.Bus. & Comm.Code Ann. § 3.302(a)(3), § 3.304(c)(1) (1968). Therefore it took the note subject to all defenses, including waiver. Tex.Bus. & Comm.Code Ann. § 3.306(2) (1968).

Respondents Stevens et al. contend that “the waiver” was of the right to accelerate and foreclose. They rely on the following language contained in the case of San Antonio Real-Estate, Building & Loan Ass'n. v. Stewart, 94 Tex. 441, 61 S.W. 386 (1901):

“. . . while neither party by his separate action or nonaction could impair the rights of the other, each could waive his own rights as they accrued from the default in payment of an installment so as to estop him from relying upon such default. To accomplish this, it would only be necessary that each should so act as to justify the other in believing and acting upon the belief that the effect of the failure to pay an installment was to be disregarded, and that the contract should stand as if there had been no default. The principle of estoppel by waiver would, we think, have proper application in such a case.”

It is clear that, prior to March 8, 1971, Stevens could have been justified in believing that the delinquencies were to be disregarded for the purposes of acceleration and foreclosure. However, after learning that the Bank was attempting to mature the unpaid balance and foreclose under the deed of trust, such belief would hardly remain justified. Under these facts, Stevens was charged with knowledge that he could no longer rely on the holder to further waive its right to insist upon strict compliance with the note and deed of trust. Iden v. Lippard, 166 S.W.2d 185 (Tex.Civ.App.—Waco 1942, no writ). Since the waiver was no longer in effect, it became Stevens’ duty to tender the amount of the delinquencies. This he failed to do.

As a result, he became subject to the terms of the note and deed of trust as if there had been no waiver. The deed of trust authorized the Trustee, in ease of default or failure to make prompt payment of any part of the indebtedness, to sell the property after posting notice of such sale for at least twenty-one successive days pri- or to the day of the sale. Stevens had clearly failed to make prompt payment of part of the indebtedness. As discussed above, C. W. Ford’s waiver did not preclude the foreclosure. The notices of sale were posted for more than the requisite number of days after Stevens’ failure to tender the delinquencies. Since all of the requirements of the deed of trust were complied with, the foreclosure sale was valid. Having failed to tender the amount due on the note prior to the sale, Respondents have no right to cancel the sale. Breitkreutz v. Cook, 135 Tex. 574, 144 S.W.2d 534 (1940); Hemphill v. Watson, 60 Tex. 679 (1884); Whalen v. Etheridge, 428 S.W.2d 824 (Tex.Civ.App.—San Antonio 1968, writ ref'd n. r. e.).

Accordingly, it is our opinion that the trial court’s judgment in defendants’ favor was proper, and we reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.