author: PER CURIAM.

text:
    Robert BRASHER and Jill Brasher, his wife, Plaintiffs-Respondents, v. Raymond E. GROVE and Audrey F. Grove, his wife, Defendants-Appellants, Eldon J. Smith and Phyllis Hensel Smith, his wife, Intervenors-Respondents.
    No. 9962.
    Missouri Court of Appeals, Springfield District.
    May 10, 1977.

      Pettit, Meyer & Woodcock, Aurora, for defendants-appellants.
    Robert S. Wiley, Crane, for intervenors-respondents.
    Gary W. Allman, Cantwell & Allman, Branson, for plaintiffs-respondents.
   PER CURIAM.

Plaintiffs Robert Brasher and Jill Brasher and their allies, intervenors Eldon J. Smith and Phyllis Hensel Smith, sought a mandatory injunction requiring the defendants Raymond E. Grove and Audrey F. Grove to remove “five units” from defendants’ lots which are located in Valley View Beach Subdivision, Stone County, Missouri. Plaintiffs and intervenors own other lots in the subdivision. The trial court granted the injunction and ordered defendants to remove the five units. Defendants appeal.

The plat of the subdivision contains certain restrictions whose validity is conceded by the parties. The restriction which is involved here reads:

“2. No tents, trailers, or temporary buildings other than those used collateral to the construction of a permanent building shall be constructed on these lands.”

The plat further stated that the covenants would run with the land and that violations of any restriction entitled any landowner in the subdivision to obtain a mandatory injunction.

The issue on this appeal is whether the five units are “trailers” or “temporary buildings” within the meaning of the restriction, there being no contention that they were used “collateral to the construction of a permanent building.”

The trial court found that the five units were “trailers or mobile homes.” Plaintiffs and intervenors, respondents here, argue that the units are trailers or temporary buildings but they put more emphasis upon their assertion that the units are trailers. Defendants argue that the units are neither trailers nor temporary buildings within the meaning of the restriction. This court agrees with defendants.

Restrictive covenants are not favorites of the law. Where their meaning is properly open to construction, they will be strictly construed. They will not be extended by implication and any reasonable doubt as to their meaning will be resolved in favor of free use of the land. If the language of the governing instrument is plain, no construction is necessary. The intention of the parties may be gathered not only from the specific clause under scrutiny but in light of all other provisions. Unless it appears that the words of the restriction are intended to be used in a technical or limited sense, the language is to be read and applied according to the plain, everyday or popular meaning of the words. However, the principle that restrictions as to the use of real estate should be strictly construed and doubts resolved in favor of the free use of property should never be applied in such a way as to defeat the plain purpose of the restriction.

The burden of proof was on the plaintiffs (and intervenors) to show that the five units were included in one of the categories proscribed by the restriction. Lake Development Enterprises, Inc. v. Kojetinsky, 410 S.W.2d 361, 366[4] (Mo.App.1966); 20 Am.Jur.2d Covenants, Conditions, etc., § 323, p. 892.

The five units were manufactured for Holiday Inn of America. For five or six years they were a part of the Holiday Inn in North Little Rock, Arkansas. Each unit is 56 feet long and 10 feet wide and contains four sub-units. Each sub-unit is a “complete motel unit” containing a shower, toilet, hot water tank, air conditioner, and furniture.

Holiday Inn of America decided to build a “high-rise” on the land where the five units were located and sold the units to Robert Hawkins who was one of the witnesses for defendants. Hawkins obtained title to them by a bill of sale. The units did not have wheels, axles, tongues, or hitches, and had never had such. Hawkins moved the units from Arkansas to Missouri on a lowboy, “like you move a house,” and the witness had “moved a lot of houses.” In the summer of 1973 Hawkins sold the units to defendants.

From Fordland, Missouri, where Hawkins had temporarily stored the units, defendants moved them to the subdivision. Defendants “had a special axle with wheels rigged up so that they could be put on each unit” and each unit was moved by use of that special rig. Once a unit was placed on defendants’ land, the special rig was removed, taken back to Fordland and placed on the next unit so that it could be moved to defendants’ land.

Each unit is twice as heavy as a mobile home of comparable size. Each has a steel exterior and a Spanish type roof. Defendants placed the units on “footings in cement and some are on concrete blocks or dirt. You have to wait until after a freeze and thaw before you put them on a permanent foundation because they might settle.” The units were attached to sewer, water, and electricity facilities. Defendants’ evidence showed that they intend to “bolt down the units,” “cross-tie them with a cable” before “putting on skirts.”

Webster’s Third New International Dictionary defines “trailer” as follows: “A vehicle or one in a succession of vehicles hauled usually by some other vehicle; a nonautomotive highway or industrial-plant vehicle designed to be hauled, as by a tractor, motor truck, or passenger automobile; an automobile-drawn highway vehicle designed to serve wherever it is parked as a dwelling or as a place of business, as an office, laboratory, or field headquarters.”

The American Heritage Dictionary of the English Language defines “trailer” as follows: “A large transport vehicle designed to be hauled by a truck or tractor; a furnished van drawn by a truck or automobile and used as a house or office when parked.”

“The word ‘trailer’ is defined generally as meaning one who or that which trails. The term is applied to a variety of vehicles, and in the motor vehicle law a trailer is a separate vehicle which is not driven or propelled by its own power, but which, in order to be useful, must be attached to, and become a part of, another vehicle.” 87 C.J.S. Trailer p. 885.

A common ingredient of the foregoing definitions of “trailer” is the word “vehicle.” The latter, says Webster, is “a means of carrying or transporting something, a conveyance.” The units here involved do not fall within any of the foregoing definitions of “trailer.” They were not “vehicles.” They were not “designed to be hauled by a truck or tractor.” Even though they were in fact hauled by a lowboy, that incidental experience played no part in their design.

The excellent briefs filed by plaintiffs, intervenors, and defendants make no mention of a Missouri case factually apposite, and the research of this court has been similarly unproductive.

Cases from foreign jurisdictions deal with trailers and mobile homes insofar as they are governed by restrictive covenants or zoning regulations. Most of these cases involve structures which were originally trailers but from which the wheels, axles, and other portions of the undercarriage had been removed and which had been set on a permanent foundation and hooked on to various services and utilities; The majority of these cases holds that the structure, originally a trailer, remained a trailer despite the permanent nature of its installation.

The minority view is that a structure, although originally a trailer, loses its classification as such when its attachment to land is of a permanent nature.

Although acceptance of the minority view would justify a finding that the units are not “trailers,” the same conclusion can be reached for other reasons. These units were not trailers on completion of their manufacture nor have they undergone any alteration to make them such. Two cases have been found in which restrictive covenants were sought to be enforced against structures which bore similarity to trailers but which had never been such. In each case injunctive relief was denied, the structure not being within the class proscribed by the restriction. Those cases are Crawford v. Boyd, 453 S.W.2d 232 (Tex.Civ.App.1970) and Vickery v. Powell, 225 S.E.2d 856 (S.C.1976).

In Crawford the restriction was against “trailer homes.” The evidence showed that the defendant contracted with a mobile home manufacturing company to build him a building 12 feet wide by 64 feet long. Before buying the building he built a concrete foundation for it. When he bought the building he did not order any axles or wheels to go with it and he did not get any.

The mobile home company brought the building out to his lots with a special truck that had a fifth wheel. They pulled it there with a tractor and when they brought it out they had axles and wheels under it. When they got the building onto defendant’s property they set it on the concrete foundation and took the wheels and axle out from under the building and took them back with them. After referring to definitions of “trailer” and “vehicle” essentially the same as those appearing earlier in this opinion, the court said at p. 235:

“The structure complained of was built by a mobile home company and from its description it looked a lot like a mobile home in that it was 12 feet wide and 64 feet long, with a wooden frame and with the exterior siding of aluminum. But it did not have axles or wheels. The owner never intended to use it as a trailer or as a vehicle. He bought it for the purpose of putting it on his lots, affixing it to his realty, and he says his intentions are to use it from now on as a home for himself and family at the location where it has been placed. It is tied to the ground with cables and connected to the septic tank and has become a part of the real estate.”

The court said it was obvious that the trial court could properly have found that the structure complained of was not a “trailer home.”

In Vickery a defendant had a home which had “the shape and appearance of a mobile home” but which “was constructed from the ground up and was not, and had never been, mobile.” The restriction banned the installation of a “trailer home” or “mobile home.” The supreme court agreed with the trial court that Vickery’s home was not a mobile home or trailer within the meaning of the restriction.

This court concludes that the trial court was not justified in finding that the five units were “trailers" within the meaning of the restriction.

The contention of plaintiffs and in-tervenors that the units were “temporary buildings” within the meaning of the restriction seems inconsistent with their paramount, and now rejected, contention that they were trailers. Photographs of the five units were admitted into evidence below and have been inspected here. The units are of metal construction but that fact alone does not render them violative of the restriction.

None of the witnesses for plaintiffs or intervenors had inspected the five units at close hand. They offered no testimony with regard to the life expectancy of the units. There was no showing that these units would not endure as long as ordinary frame houses. The burden was on plaintiffs and intervenors to prove a violation of the restriction and such proof is lacking to support a finding, and the trial court made none, that these buildings were of a type properly to be described as “temporary.” The fact that they were moved from their prior situs in Arkansas to their present location would not, standing alone, render them “temporary” structures. Houses and even larger buildings have been moved from one location to another without losing their trait of permanence. Indeed their lasting qualities are usually a reason to move them so that they may be preserved at another place.

If the designer of Valley View Beach Subdivision had intended to ban structures of the units’ type, appropriate language could have been employed. Buildings of metal exterior could have been banned, buildings having the shape or general external appearance of trailers could have been banned, but such was not done. This court has no authority to add to the restrictions which were imposed.

The judgment is reversed.

All concur.

      . Although removal of other structures had originally been sought, apparently defendants agreed to remove them. Defendants’ appellate brief states that “this appeal is directed solely to the five units.” Accordingly only that portion of the trial court’s decree which required removal of the five units is involved here.

      . Each of the preceding statements is supported by Hanna v. Nowell, 330 S.W.2d 595, 59911-5] (Mo.App.1959) and authorities there cited.

        .Buoncristiani v. Randall, 526 S.W.2d 68, 72[6] (Mo.App.1975); Greenberg v. Koslow, 475 S.W.2d 434, 436[2] (Mo.App.1971); Jones v. Haines, Hodges & Jones Bldg. & Develop. Co., 371 S.W.2d 342, 344[2] (Mo.App.1963).

      . Brownfield Subdivision, Inc. v. McKee, 61 Ill.2d 168, 334 N.E.2d 131 (1975); Jones v. Beiber, 251 Iowa 969, 103 N.W.2d 364 (1960); City of Astoria v. Nothwang, 221 Or. 452, 351 P.2d 688 (1960); Town of Brewster v. Sherman, 343 Mass. 598, 180 N.E.2d 338 (1962); Town of Manchester v. Phillips, 343 Mass. 591, 180 N.E.2d 333 (1962); Timmerman v. Gabriel, 155 Mont. 294, 470 P.2d 528 (1970); Town of Greenland v. Hussey, 110 N.H. 269, 266 A.2d 122 (1970); Phillips v. Zmotony, 525 S.W.2d 736 (Tex.Civ.App. 1975); Bullock v. Kattner, 502 S.W.2d 828 (Tex.Civ.App. 1973); Smith v. Bowers, 463 S.W.2d 222 (Tex.Civ.App. 1970).
      In Jones the court said: “Giving the word ‘trailer’ its usual and common meaning and notwithstanding its transformation . . it still retains its basic characteristic of ‘being designed to be hauled.’ ” In Town of Manchesr ter the court said: “It looks like a trailer, has the qualities of a trailer superstructure, and has been built as a trailer.” In Town of Brewster the court held that the trailer remained a trailer “whether it be still mobile or affixed with substantial permanence to the land.”

      . Manley v. Draper, 44 Misc.2d 613, 254 N.Y. S.2d 739 (1963); Hussey v. Ray, 462 S.W.2d 45 (Tex.Civ.App.1970); In re Willey, 120 Vt. 359, 140 A.2d 11 (1958).
      In Manley the undercarriage (wheels, springs and drawbar) were removed from a mobile home and it was set on a concrete foundation. The court admitted that it could be moved from its foundation but said: “so can any wooden frame constructed house.” In Willey a trailer was mounted on cinder blocks and timbers but still had its wheels attached. The court said: “A metamorphosis has occurred; the mobile vehicle has become a fixed residence.”

      . Another restriction in the Valley View Beach Subdivision plat reads:
      “3. No permanent building shall have an outer covering of tar paper, imitation stone, or brick siding having an asphalt base.”
      Presumably a temporary building, as the term is used in Restriction 2, is something other than a permanent building as used in Restriction 3. Yet if a building with tar paper walls was a temporary building, why was it necessary to use the tar paper language in Restriction 3? It could hardly be argued that a building with tar paper walls is more permanent than a building of metal construction.


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. James SCRUGGS and Leroy Shine, Defendants-Appellants.
    Nos. 38064 and 38069.
    Missouri Court of Appeals, St. Louis District.
    May 10, 1977.

      Scott Richardson, St. Louis, for defendants-appellants.
    John Ashcroft, Atty. Gen., Paul Robert Otto, J. Michael Davis, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael L. Sullivan, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

A jury found appellants Scruggs and Shine guilty of burglary in the second degree. Appellant Scruggs was sentenced to 2 years imprisonment. Appellant Shine was sentenced under the Second Offender Act to 4 years imprisonment. The facts underlying appellants’ convictions will be set forth below in the discussion of appellants’ second issue.

Appellants contend that the trial court erred in overruling appellants’ motion for mistrial after one of the jurors informed the court, out of the hearing of the other jurors, he knew one of the arresting officers giving testimony for the state, although the juror had not so responded upon hearing the officer’s name during voir dire examination. We disagree with appellants’ contention.

It is true that a prospective juror has a duty to answer all questions during voir dire examination fully, fairly, and truthfully so the juror’s qualifications may be determined and so challenges may be intelligently exercised. State v. Jackson, 412 S.W.2d 428, 482[1] (Mo.1967). However, when the juror’s inaccurate voir dire responses come to light after the jury is impaneled and sworn, thus raising the question whether a mistrial should be granted, the chief consideration is whether the defendant was prejudiced. See State v. Hudson, 508 S.W.2d 707, 709-10[5, 6] (Mo.App.1974); State v. Mullen, 528 S.W.2d 517, 521 (Mo.App.1975). The determination of any possible prejudice is left largely to the sound discretion of the trial court. State v. Hudson, supra; State v. Mullen, supra; State v. Jackson, supra. In cases such as appellants’ in which the juror has inaccurately failed to reveal his acquaintance with someone involved in the case, three factors are considered as indicative of prejudice: (1) the character of the acquaintance, (2) the juror’s intent, and (3) the juror’s assessment whether he will be influenced in deciding the facts of the case by the acquaintance. State v. Mullen, supra at 521[4].

In the case at bar, the association between the juror and the state’s witness was not a close one. The juror had worked with the witness for approximately 2 years during high school before the juror went into military service and had not seen the witness for 6 years. The juror did not intend to give an inaccurate response during voir dire examination. He told the court that he did not recognize the witness’ name at that time and had not known the witness had become a police officer. Finally, the juror told the court that the prior association would have no effect upon his ability to give the appellants a fair trial. Under the circumstances, we do not believe the trial court abused its discretion in denying a mistrial.

Appellants’ second contention is that the trial court erred in overruling appellants’ motion for judgment of acquittal because the state’s case was based upon circumstantial evidence which was not all consistent with a theory of guilt nor inconsistent with a reasonable theory of innocence. Appellants argue: (1) the state presented no evidence connecting appellants with the building burglarized or with any stolen goods and (2) the defense presented by appellants was consistent with the state’s evidence.

In reviewing the issue whether a submissible case was made, the court must view the evidence and inferences to be drawn therefrom in a light most favorable to the state and reject all evidence to the contrary. State v. Gamache, 519 S.W.2d 34, 39[1] (Mo.App.1975). If substantial evidence supports the finding of the jury, it will not be disturbed on appeal. State v. Gamache, supra.

A submissible case may be made on circumstantial evidence, but to warrant a conviction based upon such evidence, the facts and circumstances must: (1) be consistent with each other; (2) be consistent with the hypothesis of guilt; (3) be inconsistent with the hypothesis of innocence; and (4) point clearly to defendant’s guilt so as to preclude any reasonable hypothesis of innocence. State v. Gamache, supra at 40[8]; State v. Maxie, 513 S.W.2d 338, 343[5] (Mo.1974). Nevertheless the circumstances need not demonstrate an absolute impossibility of innocence. State v. Maxie, supra.

We believe the state did make a submissible case against appellants. Viewed in a light favorable to the state, the facts are as follows. At approximately 5:00 a. m. on July 19,1975, police responded to a burglar alarm at a warehouse. The warehouse had been secured at the close of business. As he arrived, one police officer saw 3 men run from a gangway. One man ran west and then turned south through a gangway. Two of the men ran east in an alley, and the officer pursued them in the patrol car. The officer lost sight of the two men, dressed in dark clothing, for a few seconds after they rounded the corner from the alley into the street going south. When the officer reached the end of the alley, he saw no one on the street but a car was parked approximately 5 feet from the entrance to the alley. The officer found Appellant Shine and a juvenile, Sylvester Scruggs, lying on the front seat of the 2-door car. The two men were dressed in dark clothing and were breathing and perspiring heavily. The officer placed his hand on the men’s chests and felt fast heartbeats. The officer testified that the men did not appear to have been asleep nor to be intoxicated. He smelled no alcohol on their breaths. No liquor bottles were found.

A second police officer had arrived at the warehouse in the meantime. This police officer found the door to the warehouse broken and standing open. Hi-fi and television sets had been moved to the doorway and the area outside the doorway. Later, the officer found Appellant Scruggs lying on his back, with his eyes open, in a gangway area against the wall of an adjacent building. Scruggs was behind some boards and a trash can. Scruggs did not appear to be intoxicated. The police officer found no liquor bottles and smelled no liquor on Scruggs’ breath.

The appellants maintained that they had been drinking heavily during the night. They consumed beer and wine in the car and later went to the Harlem Tap Room, leaving at about 1:30 a. m. Appellant Shine testified that after eating some hamburgers in the car, he fell asleep in the back seat. Shine testified that the men had been too intoxicated to drive. Appellant Scruggs testified that he left the car to urinate and passed-out in the gangway.

We believe that the facts related by the arresting officers are consistent with each other and the hypothesis of guilt. While admittedly the evidence connecting appellants to the crime is circumstantial, the evidence is inconsistent with appellants’ hypothesis of innocence. The officers testified that appellants did not appear to be sleeping or intoxicated, contrary to appellants’ defense. In addition, the inference is strong that Appellant Shine is one of the two men who ran through the alley away from the scene of the burglary.

The trial court did not err in denying appellants’ motion for judgment of acquittal or in refusing to grant a mistrial. The convictions are affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. George ROBINSON, Defendant-Appellant.
    No. 36719.
    Missouri Court of Appeals, St. Louis District.
    May 10, 1977.

      James E. Wynne, Allan D. Jerger, St. Louis, for appellant.
    John C. Danforth, Preston Dean, Robert L. Presson, Jefferson City, Brendan Ryan, Charles B. Blackmar, St. Louis, for respondent.
   STEWART, Judge.

Defendant, George Robinson, was convicted by a jury of assault with intent to kill with malice and two counts of first degree robbery by means of a dangerous and deadly weapon. The jury was unable to agree upon punishment on any of the three counts. The trial court sentenced the defendant to 25 years in the Missouri Department of Corrections on each count with the sentences to run concurrently.

Defendant contends that the trial court committed error in, (1) submitting MAI-CR 4.50, on verdict possibilities to the jury, in that the “instruction places upon the jury the presumption that the court has assumed the defendant’s guilt;” (2) the defendant was denied effective assistance of counsel; and (3) admitting extensive evidence tending to prove defendant guilty by association with co-defendant, Morris French. We affirm the judgment of the trial court.

Defendant does not question the sufficiency of the evidence to sustain the conviction. The evidence supports the following statement of facts.

On October 31, 1973, at about 8:00 p. m. the defendant and two accomplices, each carrying a rifle, entered Lonnie’s Lounge in the City of St. Louis and announced a holdup. Present in the tavern at this time were, the owner, Mr. Lonnie Johnson, Ms. Hattie Grady, and Mr. Zollie Tate. A .22 caliber rifle was fired. The bullet struck Mr. Tate in the shoulder. The persons in the lounge were ordered to “Get on the floor.” One of the men stayed at the door. The other two came into the lounge, took $70.00 cash from the cash register, $40.00 cash from Mr. Johnson and Ms. Grady’s purse which contained a $17.00 money order and $30.00 in food stamps. A second shot was fired during the course of the holdup. The defendant and his two accomplices then exited. Defendant, Morris French and a third individual were apprehended by St. Louis Police Officers while running from the scene of the crime. The defendant and Morris French were positively identified at the scene and again at the trial.

Defendant first attacks Instruction No. 13, which is MAI-CR 4.50 and reads as follows:

“ ‘If you unanimously find the defendant guilty as to a particular Count you should fix his punishment as to that Count. If, however, after due deliberation, you find the defendant guilty as to a particular Count but are unable to agree upon his punishment as to that Count, you will complete the verdict form so stating, and in that event the Court will fix the punishment.
‘If you unanimously find the defendant guilty or not guilty as to one or more Counts submitted against him, but, after due deliberation, are unable to agree upon whether or not he is guilty as to one or more other Counts submitted against him, you will complete the applicable form or forms to which you unanimously agree and return them to this Court along with all unused forms and the written instructions of the Court.
‘You must bear in mind that under the law it is the primary duty and responsibility of the jury to determine whether the defendant is guilty or not guilty as to each Count submitted against the defendant and if he is guilty as to any Count submitted against him to fix the punishment as to that Count.’ ”

As we read defendant’s point he contends that the instruction assumes the guilt of defendant. He argues that the instruction “conveys a subtle message to the jurors that the defendant is thought to be guilty by the court.” Defendant acknowledges that the Supreme Court has ruled adversely to this contention in State v. Brown, 443 S.W.2d 805 (Mo. banc 1969), but asks “the Court to reconsider the decision in the Brown case, and return to the Stuver-Gilbreath rule [State v. Stuver, 360 S.W.2d 89 (Mo.1962) and State v. Gilbreath, 130 Mo. 500, 32 S.W. 1023 (1895)].”

We, however, are bound by State v. Brown, 443 S.W.2d 805, 810[7] (Mo. banc 1969). The court there said, “We hold that it is permissible to give such an instruction along with the other instructions in the case at the time the judge charges the jury following the conclusion of the evidence.” Brown was decided before the MAI-CR, however the rule has been followed after MAI-CR, most recently in State v. Kelly, 539 S.W.2d 106, 113[14] (Mo. banc 1976).

The defendant’s second “Point Relied On” reads as follows:

“Defendant was denied the effective assistance of counsel to which he was entitled under the Sixth and Fourteenth Amendments to the United States Constitution and Article I Section 18(a) of the Missouri Constitution.”

This point fails to comply with 84.04(d) in that it fails to set out concisely wherein and why counsel was ineffective. State v. Gom-illia, 529 S.W.2d 892, 895[3] (Mo.App.1975). There is no issue before us under this point. We also make the observation that ordinarily it is inappropriate to review the contention of ineffective assistance of counsel on direct appeal. The issue can best be explored and a full disclosure of the pertinent facts can be obtained in a proceeding under Rule 27.26. State v. Greathouse, 519 S.W.2d 299, 300 (Mo.App.1975).

Defendant’s third and final “Point Relied On” reads as follows:

“The court erred in allowing extensive evidence tending to prove defendant guilty by association with co-defendant, Morris French.”

We find that the only reference to the admission of evidence in defendant’s motion for new trial reads:

“The court erred in refusing to exclude the testimony of Officer Donald Preston, who testified as to the address of co-defendant, Morris French, and the proximity of French’s address to that of defendant.”

This assertion fails to meet the standard of “detail and particularity” required under Rule 27.20(a) and cannot be the basis for review under the point under consideration. State v. Smith, 451 S.W.2d 87, 90[2] (Mo.1970).

We also note that defendant’s third point fails to specify what evidence it is alleged is erroneous and wherein and why that evidence tended to prove defendant guilty by association. This is a violation of Rule 84.04(d) and provides us with nothing to rule upon. State v. Flynn, 541 S.W.2d 344, 349 (Mo.App.1976). No issue respecting the defendant’s third point is before this court for review.

We find no error. The judgment of the trial court is affirmed.

McMILLIAN P. J., RENDLEN, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Wilfred MYERS, Defendant-Appellant.
    No. 10451.
    Missouri Court of Appeals, Springfield District.
    May 12, 1977.

      John Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Timothy H. Battern, Asst. Public Defender, Paul Crider, Jr., Public Defender, Rolla, for defendant-appellant.
   PER CURIAM.

Defendant was convicted of burglary and stealing under §§ 560.045 and 560.110, RSMo 1969. We reverse and remand because the jury was improperly instructed upon the inference of guilt to be drawn from the unexplained possession of recently stolen property.

The state presented a circumstantial evidence case. Its proof indicated a mobile home belonging to Mr. and Mrs. Leon Af-folter near Newburg, Missouri, was burglarized and numerous items were stolen on the evening of August 4,1975. The break-in occurred between 5:00 and 11:00 p. m. About a week later police officers found some of the stolen goods in defendant’s house and in a crawl space under the house. Defendant told officers he had bought the goods found in the living areas of his house from a person named Norman Bradshaw; he stated he knew nothing about the items under the house.

Defendant did not testify at trial. Two witnesses, his mother and sister, testified defendant was working at the mother’s uniform shop in Rolla during the evening of the burglary. No other evidence was presented by defense counsel.

The single point on appeal is the propriety of Instruction Number 7, not in MAI-CR, given as follows:

“Evidence has been introduced that the defendant was in the possession of some of the stolen goods taken in the offense for which he is on trial.
“If you find that the defendant had recent, unexplained possession of some of the stolen goods taken in the burglary for which he is charged, then you are allowed to reasonably infer the defendant’s guilt of the offenses of burglary and stealing.”

Defendant objected at trial, and now argues on appeal, that the above instruction was an impermissible comment upon his failure to testify. We find the instruction was improper and constituted reversible error; however, we do so upon other grounds and thus do not rule whether it violated his right to remain silent.

It is the rule in Missouri that evidence of a burglary and of defendant's unexplained possession of the recently stolen property permits an inference of guilt both as to the burglary and the stealing, and is a sufficient basis upon which to submit the case to the jury and convict the accused of both offenses. State v. Miller, 499 S.W .2d 496, 499 (Mo.1973); State v. Robb, 439 S.W.2d 510, 513 (Mo.1969); State v. Kellick, 521 S.W.2d 166, 168 (Mo.App.1975). But our supreme court held in State v. Swarens, 294 Mo. 139, 241 S.W. 934 (banc 1922) that such unexplained possession allowed only an inference of fact and not a presumption or inference of law; the inference was to be considered along with all other evidence and was not to be the subject of a jury instruction. The import of Swarens was explained in State v. Denison, 352 Mo. 572, 178 S.W.2d 449 (1944). There, in considering an instruction comparable to Number 7 in this case, the court said, 178 S.W .2d at 456-457:

“But the more comprehensive objection to the instruction is that it singles out and comments upon the fact of such possession. Prior to the decision of the Swarens case the unexplained possession of recently stolen property raised a legal presumption of fact that the possessor was the thief. Hence it was the practice to instruct the jury on that presumption. But the Swarens case in overturning the doctrine, declared such possession was merely an inculpating evidentiary circumstance and that it was improper for the court to ‘comment on the evidence, either in instructions or otherwise.’ 294 Mo. loc. cit. 155 (II), 241 S.W. loc. cit. 939(4). Contemporary and subsequent decisions have all recognized the Swarens case denounced such instructions as improper comments on the evidence.”

In light of the cases holding such an instruction to be reversible error, we hold the giving of Instruction Number 7 resulted in plain error under Rule 27.20(c).

The judgment is reversed and the case remanded for a new trial.

All concur.

      . Among the cases cited by the court in a footnote are: State v. Nibarger, 339 Mo. 937, 98 S.W.2d 625, 628 (1936); State v. Shelby, 333 Mo. 1036, 64 S.W.2d 269, 275 (1933); State v. Galbraith, 330 Mo. 801, 50 S.W.2d 1035, 1036 (1932); State v. Tracy, 294 Mo. 372, 243 S.W. 173, 177-178 (1922).


author: HARBISON, Justice.

text:
    TENNESSEE PUBLIC SERVICE COMMISSION et al., Appellants-Defendants, v. NASHVILLE GAS COMPANY, Appellee-Plaintiff.
    Supreme Court of Tennessee.
    March 21, 1977.

      Eugene W. Ward, Gen. Counsel, T.P.S.C., T. E. Midyett, Jr., Asst. Gen. Counsel, T.P. S.C., Larry D. Woods, Jinx S. Thomas, Nashville, for appellants-defendants.
    John W. Kelley, Jr., Leslie B. Enoch, II, Nashville, William W. Bedwell, Washington, D.C., for appellee-plaintiff.
   OPINION

HARBISON, Justice.

Appellee, Nashville Gas Company, is a gas distributing company, serving Metropolitan Nashville and portions of several adjacent counties in Middle Tennessee. It is a Tennessee corporation, engaged solely in intrastate commerce, and is a public utility subject to the jurisdiction of and regulation by the Tennessee Public Service Commission.

All of the stock of appellee is owned by another Tennessee corporation, Tennessee Natural Gas Lines, Inc., which is publicly held. This corporation is a “natural gas company” within the meaning of the federal Natural Gas Act of 1938, but it is such only because it sells natural gas to its wholly-owned subsidiary, Nashville Gas Company, for resale. Otherwise, it is a domestic corporation operating wholly within the boundaries of the state. Other than its subsidiary, it has three other customers to which it makes direct sales of natural gas, all of these being large industries situated in Davidson County and being within the area authorized to be served by the subsidiary, Nashville Gas Company, under its certificate of convenience and necessity.

Tennessee Natural Gas Lines, Inc., does not have a certificate from the state Commission. Since it is a “natural gas company” within the meaning of the federal statute, its operations are regulated by the Federal Power Commission, to the extent of the jurisdiction of that Commission. It is undisputed, however, that the Federal Power Commission does not fix the prices which Tennessee Natural Gas Lines, Inc., charges to its direct industrial customers in the Nashville area, nor does it have jurisdiction to do so under present statutory provisions.

On January 16, 1975, appellee, Nashville Gas Company, made application to the Tennessee Public Service Commission for an emergency rate increase, seeking additional revenues in order to enable it to meet the requirements of a maturing bond issue. Temporary rate increases were authorized and put into effect, under bond, on March 13, 1975. On April 14, 1975 appellee filed with the Commission an application for a general permanent rate increase, and the two matters were consolidated for hearing and disposition.

Extensive hearings were held and a voluminous record compiled before the Commission in September and October 1975. On October 14, the Commission entered an order finding that Nashville Gas Company was entitled to a rate structure which would yield 13.5% return on common equity and 12.14% return on its rate base. In order to accomplish this return, the Commission found that appellee required additional annual gross revenues of $3,056,-132.00. The emergency rate increases under bond were found to produce $1,909,-088.00 of this amount, and these increases were made permanent. The Commission found that an additional $1,147,044.00 in gross revenues, over the bonded revenues, were required. It authorized tariffs to produce this additional revenue subject, however, to an offset or reduction by the revenues received by the parent corporation, Tennessee Natural Gas Lines, Inc., from its direct industrial sales within the Nashville area. The Commission found that the ap-pellee had declined to furnish it with the necessary data to compute accurately the amount of this offset or reduction, referred to in the record as an “imputation adjustment”. It directed appellee immediately to file with the Commission additional data which the Commission felt necessary in order for it to determine the effect of the operations of the parent upon the authorized rate structure of the subsidiary. One member of the Commission dissented as to this portion of the order, stating that he regarded the operations of the parent corporation as entirely separate and distinct from those of the subsidiary; therefore, he considered irrelevant and illegal the additional information ordered by the majority.

Continuing its refusal to furnish the requested data, appellee filed a petition for certiorari to the Chancery Court pursuant to T.C.A. § 65-220, and also filed an original complaint in that court, alleging that the rate structure authorized by the Commission was confiscatory.

Both before the Commission and in the Chancery Court there were numerous contested issues, involving many factors and considerations which go into the complex process of utility rate making. The Chancellor resolved most of the disputed issues in favor of the Commission and generally approved its October 14, 1975 order, with two exceptions. The two issues which he resolved in favor of appellee form the basis of the present appeal to this Court by the Commission.

The Chancellor held that the Commission was in error in taking into consideration the operations and revenues of the parent corporation, Tennessee Natural Gas Lines, Inc., and in directing the filing of additional data concerning its industrial sales in Davidson County, holding that these were an improper and irrelevant consideration in fixing reasonable rates for the subsidiary. He also resolved in favor of appellee a disputed issue concerning the reasonableness of expenses and fees incurred in the present rate proceedings. We will consider these two issues separately.

I. The Parent-Subsidiary Issue

It is clear from the record in this case that the prices which the parent corporation, Tennessee Natural Gas Lines, Inc., charges its subsidiary for natural gas are regulated by the Federal Power Commission. Also regulated by that Commission are the volumes and priorities of natural gas sold by the parent to its three large industrial customers in the Nashville area. The prices at which such gas is sold to these industries is not, however, regulated by the Federal Power Commission nor, under the settled interpretation of the Natural Gas Act, are those prices subject to regulation by that Commission. See Federal Power Commission v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 81 S.Ct. 435, 5 L.Ed.2d 377 (1961); Cities Service Gas Co. v. U. S., 500 F.2d 448, 205 Ct.Cl. 16 (1974).

It is also well settled that the Natural Gas Act was not designed to remove from the states substantial regulation of the natural gas industry, but rather it was designed to provide federal regulation in certain areas which were not subject to state jurisdiction under the interstate commerce clause of the United States Constitution. Dual regulation is clearly contemplated both by the terms of the federal statute and by the cases interpreting it. Memphis Natural Gas Co. v. McCanless, 183 Tenn. 635, 194 S.W.2d 476 (1946), appeal dismissed, 329 U.S. 670, 67 S.Ct. 99, 91 L.Ed. 591 (1946).

In the case of Panhandle Eastern Pipe Line Co. v. Public Service Commission of Indiana, 332 U.S. 507, 68 S.Ct. 190, 92 L.Ed. 128 (1947), the United States Supreme Court expressly held that direct sales to industrial customers by an interstate pipe line carrier are subject to regulation by state utility commissions, even though such sales are a part of interstate commerce. See also Panhandle Eastern Pipe Line Co. v. Michigan Public Service Commission, 341 U.S. 329, 71 S.Ct. 777, 95 L.Ed. 993 (1951), where an interstate pipe line was required to obtain a certificate of convenience and necessity from a state commission before making direct industrial sales to natural gas customers. There the Court said:

“. . . the sale and distribution of gas to local customers made by one engaged in interstate commerce is ‘essentially local’ in aspect and is subject to state regulation without infringement of the Commerce Clause of the Federal Constitution, article 1, § 8, cl. 3. In the absence of federal regulation, state regulation is required in the public interest.” 341 U.S. at 333, 71 S.Ct. at 779.

Since, in the present case, the parent corporation, Tennessee Natural Gas Lines, Inc., is regulated by the Federal Power Commission as to volumes and priorities, it would not be appropriate for the local Commission to undertake such regulation. Inasmuch as the prices charged by the parent corporation to its customers are not regulated, however, we think that it is beyond question that the Tennessee Public Service Commission has jurisdiction and authority to regulate those prices directly, if it should see fit to do so.

We have previously pointed out that the parent corporation is in “interstate commerce” solely and exclusively because of the language of the federal Natural Gas Act, 15 U.S.C.A. § 717 et seq. which places under the Federal Power Commission sales in interstate commerce for resale. Were it not for the sales made by the parent directly to its subsidiary for resale, the entire system of the parent and the subsidiary would be wholly intrastate, and would be subject to regulation in its entirety by the Tennessee Public Service Commission. The parent corporation does not operate across state lines, but its pipeline taps onto an interstate pipeline in Cheatham County, Tennessee, and brings natural gas into Davidson County, where it is sold to the subsidiary and to the three industrial customers.

Tennessee Natural Gas Lines, Inc. has no operating employees. Nashville Gas Company has some three hundred and forty-two operating employees. These perform various tasks for the parent as well as the subsidiary, and the parent reimburses the subsidiary for their services. The two corporations have common officers and directors, some of the officers being wholly paid by the subsidiary and some of them being paid by the parent. The parent acquired all of the stock of the subsidiary in 1945, and has held it continuously since that time.

The dissenting member of the Public Service Commission felt that it was improper for the Commission to consider any of the operations and sales of the parent, because of the separate corporate structure and because the parent is engaged in interstate commerce, subject to federal regulation. He also felt that it was improper to “pierce the corporate veil” because there was no evidence of fraud, misconduct or impropriety in the management and operation of the two companies.

We are in agreement with the latter statement of the Commissioner, and because of certain statements and comments made in the briefs and in the record we feel constrained to state that we find no evidence whatever of any misconduct, illegality or impropriety in any of the management decisions and transactions which are reflected in this record. The decisions by the management of the two companies to have the direct sales made to industrial customers by the parent, rather than the subsidiary, were based upon legitimate financial and corporate concerns at the time, probably including the fact that the sales were not subject to federal regulation and had not in fact been regulated locally. There were many other considerations which entered into the decisions, however, all of which were justified from a management and financial standpoint.

Having said this, we are, on the other hand, equally convinced that a regulatory body, such as the Public Service Commission, is not bound in all instances to observe corporate charters and the form of corporate structure or stock ownership in regulating a public utility, and in fixing fair and reasonable rates for its operations. The filing of consolidated reports by parent and subsidiary corporations, both for tax purposes and regulatory purposes, is so commonplace as to be completely familiar in modern law and practice. Considerations of “piercing the veil”, which are involved in cases involving tort, misconduct or fraud, are largely irrelevant in the regula cory and revenue fields. In order for taxing authorities to obtain accurate information as to revenues and expenses, the filing of consolidated tax returns by affiliated corporations is frequently required, and rate-making and regulatory bodies frequently can and do consider entire operating systems of utility companies in determining, from the standpoint both of the regulated carrier and the consuming public fair and reasonable rates of return.

In some of the federal cases most relied upon by appellee in its brief, the courts have considered parent and subsidiary corporations as a group or as an operating system, and have considered for rate-making purposes many aspects of inter-company relationships, including sales between affiliated companies, expenses charged and the like. Thus, in the case of Smith v. Illinois Bell Telephone Co., 282 U.S. 133, 51 S.Ct. 65, 75 L.Ed. 255 (1930), relied upon by appellee for the proposition that intrastate and interstate revenues, property and expenses must be allocated in fixing utility rates, the Supreme Court of the United States set aside and reversed a district court order which had found confiscatory certain rates set by an Illinois regulatory commission. The Court remanded the case for further proof and specific findings as to the reasonableness of charges made to the regulated intrastate company by its interstate parent and an interstate affiliate, the parent owning 99% of the stock of both the regulated company and the affiliated corporation; Western Electric Company.

In that case, the Court expressly held that the relationship between the subsidiary, its parent and its sister corporation demanded “close scrutiny” even though it recognized that separate corporate structures and operations should be observed. In that case the Court referred to Western Electric Company as “virtually the manufacturing department” of the entire system, and its net profits were specifically required to be taken into consideration in connection with the rates of the intrastate company, Illinois Bell Telephone Company, then under consideration.

Similarly, in Colorado Interstate Gas Co. v. Federal Power Commission, 324 U.S. 581, 65 S.Ct. 829, 89 L.Ed. 1206 (1945), the Federal Power Commission treated two separate companies, subsidiaries of larger oil companies, as having been “operated as a single enterprise.” 324 U.S. at 588, 65 S.Ct. 829. In that case transactions by which leaseholds had been transferred to a subsidiary were ignored, and certain interstate wholesale rates were required to be reduced because of an excess of revenues over cost. The Court said:

“The fact that the negotiations between Southwestern and Standard were at arm’s length has no bearing on the present problem. The end result is that property has been transferred at a writeup from one of Southwestern’s pockets to another. The impact on consumers of utility service of write-ups and inflation of capital assets through inter-company transactions or otherwise is obvious. The prevalence of the practice in the holding company field gave rise to an insistent demand for federal regulation.” 324 U.S. at 608, 65 S.Ct. at 841.

See also Cities Service Gas Co. v. Federal Power Commission, 424 F.2d 411 (10th Cir. 1969), cert, dismissed, 400 U.S. 801, 91 S.Ct. 9, 27 L.Ed.2d 33 (1970); Cities Services Gas Co. v. Federal Power Commission, 155 F.2d 694 (10th Cir. 1946), cert. den., 329 U.S. 773, 67 S.Ct. 191, 91 L.Ed. 664 (1946).

Even though the direct sales of the parent corporation in the present case are a part of interstate commerce, by reason of the parent’s being a natural gas company subject to the federal Natural Gas Act, these sales are essentially local in nature and have been expressly held to be subject to a state gross receipts tax. Tennessee Natural Gas Lines, Inc. v. Atkins, 199 Tenn. 468, 287 S.W.2d 67 (1956).

The appellee insists that the Tennessee Public Service Commission has no jurisdiction over the direct sales of its parent to the industrial customers because in 1969 the Commission dismissed proceedings which it had initiated contemplating possible total regulation of the parent. We find the contention of the appellee to be unpersuasive. Whether or not the Commission could or could not regulate all phases of the operations of the parent corporation, we think it unquestionable from the federal cases construing the Natural Gas Act that the Tennessee Commission does have authority to regulate the prices charged in these direct industrial sales. We do not regard the 1969 proceedings as having any significance with respect to the present rate case.

Appellee contends further, however, that the Tennessee statutes themselves prohibit the Commission from regulating interstate commerce, citing T.C.A. § 65-403. This statute exempts from state regulation public utilities “engaged in interstate commerce for the government or regulation of which jurisdiction is vested in the interstate commerce commission or other federal board or commission.”

We have already noted that the Federal Power Commission only partially regulates the operations of the parent corporation, and certainly both the state statutes and the federal Natural Gas Act contemplate a complete system of dual regulation of the natural gas industry.

Finally it is insisted on behalf of appellee that the industrial sales were contracted by the parent, and the pipelines and facilities built at the expense of the parent, wholly separate from the subsidiary, and at a time when the subsidiary could not financially have afforded the capital outlay necessary to enable it to make these sales.

There is no question but that the two companies have had in the past separate historical development, and we have already stated that we find no illegality whatever in the management decisions which resulted in the present situation. It must be remembered, however, that Nashville Gas Company is wholly owned by Tennessee Natural Gas Lines, Inc. Throughout the record and throughout its brief on appeal, appellee stresses the frequent subsidization of the subsidiary by the parent over the years, and it seems to us that the subsidiary in actuality is nothing more than an operating division of the parent. Management decisions, for legitimate reasons, may have placed the industrial sales and the facilities requisite therefor in the parent company, but this does not prevent a public regulatory body from considering them as part of one operating system and taking them into account in determining the proper rate base and rate structure of the subsidiary. Otherwise, it would be a simple matter, through the device of holding companies, spinoffs, or other corporate arrangements, to place the cream of a utility market in the hands of a parent or an affiliate, and to strip the marketing area of a regulated subsidiary of its most profitable customers. See Industrial Gas Co. v. Public Utilities Comm’m of Ohio, 135 Ohio 408, 21 N.E.2d 166 (1939).

Throughout the lengthy involved hearings reflected in the record in this case, much information concerning the parent corporation and its sales was introduced into the record. The Commission felt, however, that it did not have enough information about present contracts, depreciation schedules, historical costs and the like to determine the extent to which the industrial sales of the parent should be taken into account in fixing appropriate rates for the subsidiary. We cannot, therefore, at this time know what significance, if any, the Commission will ultimately give to the data which it requested, but we believe that the Commission was entirely justified and acting within its jurisdiction in taking these into account. From such information as is already contained in the record, it appears that the parent corporation receives substantial profits from these sales, reflecting ,a net return on the equity capital of the consolidated enterprise not greatly less than that which the Commission found necessary and proper for the subsidiary alone.

The Chancellor held that the Commission had violated a fundamental principle of rate making in failing to separate interstate from intrastate operations. He stated that even if the parent and subsidiary were merged into one corporation, such allocation would still have to be made. This, however, overlooks the fact that if the two corporations were merged, there would be no interstate commerce involved at all, because there would be no “sales for resale” and the entire system would be an intrastate distributing company.

While the principle referred to by the Chancellor is a well-recognized and fundamental one, it is usually applied in cases where a regulatory body has only partial jurisdiction over a utility, or where a utility company has separate non-utility operations, not subject to regulation. Such a situation is not presented in the present case, where the subsidiary is entirely subject to regulation by the Tennessee Public Service Commission, and the direct sales of its parent are also subject to such regulation.

The decree of the Chancellor in this case is reversed, insofar as it dealt with the parent-subsidiary relationship, and this cause will be remanded to the Chancery Court, with directions to refer it to the Commission for the production by the Nashville Gas Company of the information ordered to be supplied by the Commission, and further consideration by the Commission after that information has been supplied.

II. Rate Case Expenses

The Commission authorized the applicant Nashville Gas Company to include in its cost of services $100,000.00 for expenses incurred in counsel fees, consulting fees and other charges in the preparation and presentation of this case. By an exhibit, filed several days after the close of the hearings before the Commission, appellee claimed $203,420.00 in expenses, more than double the amount allowed by the Commission. In its complaint in the chancery court, appellee alleged that it was never given a hearing on its late-filed exhibit, and that the action of the Commission was unreasonable. The Chancellor found no evidence contrary to that contained in the exhibit and allowed the entire amount of claimed expenses, to be amortized over a three-year period.

Since we have ordered a remand of this case to the Commission, we think that the item of expenses should also be reconsidered by the Commission, with both the appellee and the commission staff having an opportunity to present such additional evidence as they desire. We are not prepared to accept some of the items contained in the late-filed exhibit, nor do we believe that the Commission was obligated to do so, at least without some explanation or supporting testimony. We think a further hearing on this entire issue would be appropriate.

The decree of the Chancery Court is reversed as to the two issues involved on this appeal, and the cause is remanded to that Court for reference to the Commission as above indicated. Costs incident to the appeal to this Court will be taxed to appellee.

All other costs will be fixed by the Chancellor.

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

HENRY, J., not participating.

      . 15 U.S.C.A. § 717 et seq.

      . The subsidiary was apparently not franchised by the City of Nashville to sell outside the city limits, and it did not receive a franchise from local government to serve all of Davidson County until the advent of Metropolitan Government in 1963. Nevertheless it was certificated by the Commission to serve Nashville and its environs in the 1930s or before, and it made sales outside the Nashville city limits under that certificate long before 1963. Its franchised territory under local government . and its certificated area by the Commission are not and have never been identical.

       Neither party has cited the Uniform Administrative Procedures Act, T.C.A. §§ 4-507 et seq. However, its application would not affect the issues presented to us.

      . In support of its assignments of error, appellant Commission has attached as “Exhibits” to its brief a number of documents not introduced in evidence in the Commission hearings or before the Chancellor. This is improper practice, and we sustain appellee’s Motion to Strike these documents and the references thereto in appellant’s brief. No consideration has been given to them by the Court.

      . The general rate increase proposed in this case did not involve residential customers. Its effect, therefore, will be to raise the rates charged to industrial and commercial customers of the subsidiary, and it therefore seems particularly relevant that consideration should be given to the revenues received by the parent from its industrial sales in the same marketing area.


author: FONES, Justice.

text:
    Fannie WADDLE, Petitioner, v. LUCKY STRIKE OIL COMPANY, INC., Respondent.
    Supreme Court of Tennessee.
    April 18, 1977.

      R. L. Johnson, Gainesboro, for petitioner. John E. Acuff, Crawford, Barnes & Acuff, Cookeville, for respondent.
   OPINION

FONES, Justice.

This action was instituted by plaintiff, as lessee, seeking a declaration that an oil and gas lease remains in full force and effect and for other relief. The Chancellor denied the relief sought and the Court of Appeals reversed. We granted the writ of certiora-ri.

■The issues are whether lessee was in default in failing either to drill or to pay delay rental, and, if so, whether the lease terminated by its own terms, without the necessity of “a final determination” of default, followed by a reasonable time within which to comply.

The oil and gas lease was entered into on December 3, 1971, between defendant, Fannie M. Waddle, as lessor, and Mid-Western Petroleum Corporation, as lessee. Plaintiff is an assignee of a successor corporation of Mid-Western. John Kramer of New York, Pennsylvania, an officer of the original lessee and of its successor, represented the corporation in the negotiations with lessor, and the lease bears the hand-written notation that it was prepared by him. A “cash bonus” of fifteen hundred ($1,500) dollars was paid for a primary term of ten (10) years.

The obligations imposed upon the lessee by the terms of the lease that involve the issue of termination follow:

(1) “ . . . this lease shall terminate unless . . . lessee shall . ” begin operations for the drilling of a well within six months of December 3, 1971, or pay $75 per annum for the privilege of deferring drilling operations;
(2) In the event of a dry hole, or holes, prior to the discovery of oil or gas, “ . this lease shall not terminate, provided . ” operations for the drilling of a well were commenced, or $75 per annum paid, as delay rental, by the next rental paying date;
(3) If production ceased for any cause, “ . . . this lease shall not terminate, provided . . . ” operations for the drilling of a well were commenced or $75 per annum paid, as delay rental, by the next rental paying date;
(4) To pay $50 damages before drilling each well.

Lessee drilled well number one on lessor’s land within six (6) months of December 3, 1971. It disclosed traces, but no commercial oil, and was declared a dry hole and plugged. A few months later well number two was drilled and “demonstrated a surplus of oil” sufficient to cause lessee to go forward with the installations necessary to begin commercially pumping oil. However, the Tennessee Oil and Gas Board “red-tagged” the well before any oil was pumped. According to Kramer, the drilling contractor encountered a boulder, and moved the location of the well twenty-one (21) feet “in the middle of the night.” Instead of being moved west, it was moved south and east, too close to property owned by Wesley Platt, Jr. and others, in violation of State regulations. Kramer’s interpretation of the consequences of a well too close to adjoining property was that, if the owner of more than a fifty (50%) percent interest therein would not consent to removal of the red-tag, a hearing before the State Board could be requested and “it has been their custom to allow you to pump it.”

Kramer’s only explanation of why the red-tag had not been removed, or of lessee’s efforts to do so was the following:

“Well, we’ve been putting out a lot more brush fires like this in between, and it is not the next logical step. We attempted to get it from Wesley Platt, if that’s what you’re asking.”

Parenthetically, the record reveals that Kramer’s corporation had a fifty (50%) percent interest in an oil lease on the Flatt property, and plaintiff corporation also procured an assignment of that lease. No further details of that transaction were developed, nor does either party assert that it had any impact on the issues in this litigation.

On March 8, 1974, lessee assigned its interest in the Waddle oil and gas lease to plaintiff, Lucky Strike Oil Company, Inc. in consideration of ten thousand ($10,000) dollars.

Fred Hull, President and owner of plaintiff corporation, and Ray Bostick, who was representing John Kramer, called on Mrs. Waddle at her daughter’s home on March 13, 1974. Hull testified they went, “to see where [sic] she objected.” She informed them, in essence, that the lease was terminated because Mr. Kramer had not done what he had promised. They returned the following day, and either handed her or merely left on a table with other papers a Bank of Celina receipt showing a deposit of two hundred fifty ($250) dollars to the credit of lessor. Lessor testified that she did not learn of the deposit until after they had left. Under date of March 15, 1974, her check for two hundred fifty ($250) dollars payable to plaintiff was mailed with a covering letter stating in part, that: “My lease is out and I do not want to lease again.”

No further drilling was commenced on lessor’s property after November 27, 1972, and no delay rental was paid lessor until the deposit to her account on March 14, 1974. Hull and Bostick had slightly different versions of what the sum of two hundred fifty ($250) dollars represented. Kramer said that it represented two years delay rental and fifty ($50) dollars damages or “cleanup” for each of the wells drilled on lessor’s property. As a witness, Kramer insisted that nothing was due lessor, because the lease was “held by production,” and that lessee was entitled to notice or a “determination” and reasonable time thereafter to pay rental or “to do whatever is wrong [sic].”

Defendant insists that the lease terminated by its own terms when lessee failed to drill or to pay delay rental after well number two was red-tagged.

In this Court, plaintiff relies entirely on the reasoning of the Court of Appeals.

The Court of Appeals was of the opinion that the only specific obligation imposed on the lessee was that either of commencing operations for digging a well within six (6) months or of paying seventy-five ($75) dollars per year; that having drilled a well within six (6) months the rights of the lessee were fixed without further payment for a period of ten (10) years.

We disagree with that interpretation.

First, we agree with the majority of courts that have passed upon the term “production” in this context, and hold that it is equivalent to the phrase “production in paying quantities” and also embraces the ability to market the product at a profit. See Gulf Oil Corporation v. Reid, 161 Tex. 51, 337 S.W.2d 267 (1960); W. Summers, Oil and Gas (1959) § 293.

Thus, in our opinion, well number two is in the same category as a dry hole as long as the red-tag placed thereon, prior to any pumping or production, remains in force.

The dry hole clause of this lease is prefaced by the phrase, “if at any time prior to the discovery of oil or gas . . ” It is a fact, under this record, that oil, in apparent commercial quantities, was discovered on lessor’s land. But, we are not disposed to allow that expression to thwart what we believe to be the obligation of the lessee under the terms of this lease. In Mountain States Oil Corporation v. Sandoval, 109 Col. 401, 125 P.2d 964 (1942), the Supreme Court of Colorado, quoted the following from its earlier opinion in Lanham v. Jones, 84 Col. 129, 268 P. 521 (1928):

“ . . . instruments of this character are construed most favorably to development, . . . time is the essence of the contract, and the real motive for the giving of such instruments is the development of the leased property. Therefore such a lease or option is properly construed strongly against the lessee, so as to secure such speedy development.” 125 P.2d at 967.

We approve that statement, and as applied to this lease are of the opinion that it requires a construction that lessee on the next ensuing rental date after the red-tagging on November 27, 1972, was required either to commence drilling another well, to pay delay rental or to remove the red-tag and bring well number two into production in paying quantity. Upon failing to do so the lease terminated by its own terms.

It may very well be that upon a showing of good faith effort by the lessee to remove the red-tag, equitable consideration would sanction deferring the due date of these obligations, where, as here, the event that triggered them was only a few days prior to the annual rental date. However, there is no justification whatever in this record for that relief. A second annual rental date passed on December 3,1973, and three additional months, before lessee attempted to pay delay rent. The only other evidence of any effort to perform was Kramer’s statement that Flatt’s permission was sought, which presumably would have caused the State Oil and Gas Board to remove the red-tag.

The Court of Appeals held that “the mere statement of the lease that it shall not terminate if certain conditions are met does not mean that it shall terminate (automatically) if the conditions are not met.”

An oil and gas lease is subject to the well established rule that in the construction of contracts, wills, deeds and other instruments in writing, the court seeks to ascertain the intention of the parties from the language used. Lamczyk v. Allen, 8 Ill.2d 547, 134 N.E.2d 753 (1956). While it may be preferred draftsmanship to state termination clauses in the affirmative, we are of the opinion that the meaning of the language used, and thus the intention of the parties, is the same, and if the conditions expressly provided to avoid termination are not performed, then termination is the result, whether the language used is, “this lease shall not terminate, provided . . . ” or “this lease shall terminate, unless . . ”

This brings us to a consideration of the effect of the following provision of the lease, said by plaintiff and the Court of Appeals to prevent termination:

“It is agreed that this lease shall never be terminated, forfeited, or cancelled for failure to perform in whole or in part, any of its implied covenants, conditions or stipulations, until it shall have been first finally determined that such failure exists, and after such final determination, lessee is given a reasonable time therefrom to comply with any such covenants, conditions or stipulations.”

Implied covenants against the lessee comprise an important phase of the law of oil and gas. While there is some difference of opinion as to the best classification of these implied covenants, Merrill and Kulp discuss the legal problems involved under the following descriptive titles: (1) to drill an exploratory well; (2) to drill off-set wells; (3) to drill additional wells during and after the exploratory period; and (4) to diligently operate and market. M. Merrill, Covenants Implied in Oil and Gas Leases, (2nd ed. 1940) § 4 Kulp, Oil and Gas Rights (1954) §§ 10.66-10.71.

The provision quoted above, and others of similar import, are designed to give lessees relief from the legal effects of these implied covenants in oil and gas leases. We are cited to no authority and our independent research has disclosed none, holding that this provision has any relevance to a default in the obligation to drill or to pay delay rental under specific conditions set forth in the lease.

The validity of such a provision, where the issue is the performance by lessee of one of the implied covenants of an oil and gas lease, is questionable.

In Frick-Reid Supply Corporation v. Meers, 52 S.W.2d 115 (Tex.Civ.App.1932), a similar no forfeiture or termination clause until “a final judicial ascertainment” was held void and unenforceable. See also Lamczyk v. Allen, supra; Guerra v. Chancellor, 103 S.W.2d 775 (Tex.Civ.App.1937); Mountain States Oil Corporation v. Sandoval, supra; Clovis v. Carson Oil & Gas Co., 11 F.Supp. 797 (E.D.Mich.1935); Melancon v. Texas Company, 230 La. 593, 89 So.2d 135 (1956); and Smith v. Sun Oil Co., 172 La. 655, 135 So. 15 (1931).

We conclude that this lease required lessee to drill, to pay delay rental, or to be in production in paying quantities on the “rental paying date[s],” or the lease terminated by its own terms. Under the facts of this case, the no termination or forfeiture clause has no application to those obligations.

The judgment of the Court of Appeals is reversed and the decree of the Chancery Court of Clay County, Tennessee dismissing the plaintiff’s suit is affirmed. Costs are adjudged against plaintiff, Lucky Strike Oil Company.

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

      . A copy of the lease is appended to this Opinion.

      . Oil and gas lease terminology for one of the three (3) usual sources of revenue to the lessor. The other two (2) are “delay rental” and “royalty.” Kulp, Oil and Gas Rights, (1954) § 10.36.

      . A successor corporation of Mid-Western Petroleum Corporation, Bon-Terre Petroleum Corporation, was the assignor.


text:
    STATE of Tennessee, Petitioner, v. Clarence Ray BROWN and John Carl Redden, Respondents.
    Supreme Court of Tennessee.
    May 9, 1977.
    Brooks McLemore, Atty. Gen., William W. Hunt, III, Asst. Atty. Gen., Nashville, for petitioner.
    L. Thomas Austin, Stephen T. Greer, Dunlap, for respondents.
   OPINION

FONES, Justice.

This case involves the sufficiency of circumstantial evidence to support the convictions of these two (2) defendants for concealing a stolen 1964 Chevrolet automobile. At trial, both men and a James S. Brown were found guilty of concealing the above car as well as a stolen 1964 Pontiac automobile. The Court of Criminal Appeals, in a split decision, affirmed all convictions with regard to the Pontiac but reversed these two defendants’ convictions for concealing the Chevrolet. The majority’s reasons for reversal was insufficiency of the evidence. The State has brought this petition for certiorari contending that the convictions should have been upheld.

On March 31, 1975, the owners of three (3) separate automobiles reported their cars stolen from the Northgate Shopping Center in Hamilton County. One of these was a Mrs. Christina Alday who testified that her 1964 Chevrolet was still in the parking lot at the shopping center at 4:30 p. m. When she finished work that night at approximately 9:00 p. m. she discovered her automobile was missing.

At approximately 5:00 p. m. on the same date, Mr. Eugene Carver received a call from his wife concerning his automobile, also parked in the Northgate Shopping Center. Mr. Carver immediately went to the shopping center and checked to see whether or not his car had been tampered with. While doing this, he noticed a 1962 black Chevrolet license number 88-J631 cruising around the parking lot. He became suspicious when he saw one or more men go from this car to other cars in the parking lot, including a white 1964 Chevrolet and a black 1964 Pontiac or Buick. Although he could not identify any of the men, he did notice that one of them was wearing a reddish orange “C.P.O.” jacket. Mr. Carver called the auto theft division of the Chattanooga Police Department and reported his observations in the parking lot, including a description and the license number of the 1962 Chevrolet.

On that same evening Sheriff Hickey of Sequatchie County was serving papers on Lewis Chapel Mountain, when he noticed a black 1964 Buick and a black 1964 Pontiac parked on Lewis Chapel' Mountain Road with one driver in each of the vehicles. He identified the driver of the 1964 Pontiac as defendant Clarence Brown. As Sheriff Hickey turned around to investigate, both cars moved off at a high rate of speed. After an unsuccessful pursuit, Sheriff Hickey returned to Dunlap where he was tele-phonically informed by the Chattanooga Police Department that the cars were stolen.

Sheriff Hickey, accompanied by his deputies and members of the Chattanooga Police Department Auto Theft Division returned to Lewis Chapel Mountain. Approximately six hundred (600) yards from the point where he first observed the vehicles, he again saw the 1964 black Pontiac and a 1962 black Chevrolet license number 88-J631. Both defendants and James S. Brown were arrested in the area of these cars. Defendant Clarence Brown was wearing a reddish “C.P.O.” styled jacket at the time of his apprehension. The next day, Mrs. Alday’s 1964 Chevrolet was located some two (2) miles from the point of defendants’ apprehension. The ignition switch of the car had been altered. A set of latent fingerprints was taken from the automobile and later identified as belonging to James S. Brown.

The foregoing is essentially all the evidence considered by the jury in their convictions of the defendants for the crime of concealment of the stolen 1964 Chevrolet. The Court of Criminal Appeals found this evidence was insufficient and could have resulted in nothing more than natural suspicion that the defendants were implicated in the theft of the Chevrolet. It specifically stated:

“We cannot say that the evidence excludes all reasonable hypothesis save guilt on the part of Redden and Clarence Ray Brown in that ease.”

The Court then cited Marie v. State, 204 Tenn. 197, 319 S.W.2d 86 (1958).

In Marie v. State, supra, the above statement appears in the context of the Court’s consideration of the weight to be given the legal presumption that liquor found on a premises is possessed by the owner of the premises, whose testimony contradicts possession. As we understand the opinion, the quoted sentence was intended to state the test applicable to the jury’s consideration of the case, not the standard of review on appeal.

In the Court of Criminal Appeals as well as this Court, the burden rests with the appealing defendant to demonstrate that the evidence preponderates against the verdict, even where the conviction is based solely on circumstantial evidence. State v. Townsend, 525 S.W.2d 842 (Tenn.1975); Farmer v. State, 208 Tenn. 75, 343 S.W.2d 895 (1961); Ford v. State, 184 Tenn. 443, 201 S.W.2d 539 (1949); Chadwick v. State, 189 Tenn. 256, 225 S.W.2d 52 (1949).

The following quoted paragraph by Mr. Justice Felts in his opinion in Farmer v. State, supra, is an excellent summary of the two (2) tests and their distinct application:

“It is true a greater degree of proof is required in a criminal case than in a civil case; that in the latter a preponderance suffices, while in the former guilt must be proved beyond a reasonable doubt; that is, the circumstances must exclude every other reasonable hypothesis than that of guilt. That is a rule for the Trial Court. Bryan v. Aetna Life Ins. Co., (174 Tenn. 602, 130 S.W.2d 85.)
In the case before us, we think the circumstances warranted the trier of fact in inferring guilt beyond a reasonable doubt. The car was found on the road after midnight; it was plaintiff in error’s car; he was in it, drunk and asleep at the wheel; it must have been driven on the road to the point where it was found; in the absence of anything to suggest that this might have been done by someone else, it is reasonable to infer that it was done by plaintiff in error; and, in view of his intoxication, that it was done under the influence of the intoxicant.
The rule for review here differs from that on the trial below. There, the accused was presumed innocent; but the judgment and finding of guilt displaced the presumption of innocence, raised a presumption of guilt, and put upon plaintiff in error here the burden of showing the evidence preponderates against guilt and in favor of his innocence, (citations omitted).
The rule governing our review of the facts is the same whether the finding of guilt is based on testimonial or on circumstantial evidence, (citations omitted).” 208 Tenn. at 78, 79, 343 S.W.2d 896.

In our opinion, defendants have not met the burden of proving that the evidence preponderates against the verdict. The judgment of the Court of Criminal Appeals is reversed and the verdict and judgment of the Trial Court, finding defendants guilty of concealing the stolen 1964 Chevrolet are affirmed.

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


author: O’BRIEN, Judge.

text:
    Maurice McKinney TAYLOR, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    June 8, 1976.
    Certiorari Denied by Supreme Court Aug. 16, 1976.
    Certiorari Denied by U. S. Supreme Court April 18, 1977.

      Robert T. McGowan, Asst. Public Defender, Nashville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, Aaron Wyckoff, and John E. Rodgers, Asst. Dist. Attys. Gen., Nashville, for defendant in error.
   OPINION

O’BRIEN, Judge.

Defendant was convicted on a two count indictment charging him with murder in the first degree in the deaths of James P. Widener and Mildred L. Hazelwood. He was sentenced to life imprisonment.

Defendant first says the trial court erred in allowing a medical examiner to give his opinion as to whether or not a bullet in one of the bodies had not only separated, but to also express an opinion that this bullet was designed to separate.

The transcript of the record and defense brief in this case do not comply with the rules of this court in that there has been no attempt to abridge the record (Rule 1); nor any effort made to omit from the Bill of Exceptions immaterial or uncontroverted matter which does not bear on the grounds assigned in the trial court for new trial, (Rule 2); nor does the brief make reference to the pages of the record where the errors complained of appear, (Rule 14). Nevertheless, despite these discrepancies we have examined this voluminous record carefully to determine if there was error in the trial proceedings.

The error first complained of by defendant did not actually occur. The medical examiner’s qualifications as an expert were stipulated. In addition to the stipulations he testified he had been County Medical Examiner for approximately eight (8) years and in that capacity examined approximately fifty gunshot wounds annually. An attempt was made by State’s counsel to elicit an opinion from the doctor to the effect that certain types of bullets would explode on impact. Although it is not so stated in the record, it is evident that the district attorney intended to relate this type bullet to those missiles extracted from the bodies of the victims. Defense counsel properly objected, and questioning in this vein was disallowed by the trial Judge. The doctor was allowed to testify that a projectile which had entered the brain of one of the victims had separated and was removed in two pieces. Also, that he removed part of a projectile from a head wound in the other victim. A hypothetical question was posed by the district attorney regarding the effect on the human body if a bullet exploded upon impact. Objection to this line of questioning was sustained. The doctor was allowed to testify about the effect upon a human body where a bullet separates upon impact. In light of the examination of the bodies of the victims by the doctor which disclosed that the death missiles had in fact separated upon impact, we do not find any abuse of the trial judge’s discretion in allowing this testimony. We think the doctor was fully qualified to testify as he did on the basis of his experience as County Medical Examiner. Had the admission of this testimony been error, it could be no more than harmless error in view of the fact that a fire arms examiner for the Tennessee Bureau of Criminal Identification subsequently testified that the projectiles taken from the bodies of the victims had been fired from a weapon taken from defendant at the time of his arrest. That these bullets were jacketed hollow points, the primary design and function of which was to cause the nose of the bullet to explode, expand, or mushroom upon impact.

By the second assignment it is urged that the trial court erred in qualifying a police officer as a fingerprint expert and allowing him to give expert testimony concerning fingerprints.

Testimony of Metro Police Officer Jimmy Rogers was offered for the purpose of making a comparison between a latent fingerprint found in a motel room occupied by one of the homicide victims and an identified fingerprint of the defendant. In a lengthy out-of-jury hearing the trial Judge determined that the witness was qualified as an expert to testify in the area in which his testimony was offered. It appears he was a graduate of an F.B.I. Improved Correspondence Course, had some three years experience and training under the supervision of an expert in the field, and had himself testified as an expert approximately ten times prior to the trial. His testimony regarding his area of expertise was subjected to rigid cross-examination. The qualification of an expert witness is a matter within the sound discretion of the trial court, and his decision in such matters will not be reversed on appeal, absent a clear abuse of discretion. Fortune v. State, 197 Tenn. 691, 277 S.W.2d 381; Murray v. State, 214 Tenn. 51, 377 S.W.2d 918. We find no reason to disturb the trial court’s ruling on this issue.

Defendant complains that the trial court erred in allowing in evidence the fruits of a search conducted by the Memphis Police Department in a motel room, without the benefit of a search warrant.

Several days after the homicides the defendant was apprehended in Memphis, Tennessee in the company of Richard Benjamin Dunn and Philip Glenn Mason, who were co-defendants prior to submission of guilty pleas to the lesser offense of accessories after the fact to murder. These three were arrested at the Cayce Motel in that city. They had endeavored to use credit cards owned by the deceased, James P. Widener, and had abandoned his automobile in which they had travelled to Memphis, after hearing news reports that a state-wide search was being conducted for them. Dunn and Mason were apprehended outside of the motel room occupied by defendant, a shoot-out occurred resulting in defendant’s ultimate surrender. When defendant emerged from the motel room he was carrying a large red suitcase. He dropped a pistol inside the door which proved to be the murder weapon. Officers entered the motel room to determine if there was anyone else present, and for the further purpose of securing evidence in the room. The pistol was lying in a chair immediately inside the front door. At that time all three defendants were in custody and in the process of being transported to the Memphis Police Station. A thorough search of the motel room was made. A coin purse containing a diamond ring and a wrist watch was discovered under the mattress of one of the beds. These items were the property of the victim, Mildred Hazelwood. There were two suitcases in the room in addition to the one deposited by this defendant on the front porch. The keys to the car owned by the victim, James Widener, were found in one of the suitcases. Objection was made to the admission of this evidence because the police had not obtained a search warrant. After an out-of-jury hearing the trial Judge ruled that the evidence was admissible. He stated the basis for his reasoning to be that when police flush suspects in a murder case out of a house they have got to go in and see what they can find which might lead them to the murder. He reasoned that the defendants had lost the care, custody and control of the room upon their arrest, and if the room had been sealed and a search warrant obtained there would have been no defendant present to serve a warrant on. That any warrant obtained had to be served on the operators of the motel, therefor, defendant had no standing to object to the search without a warrant. That the police had a duty to protect the defendant’s property and the search made was in the nature of an inventory search.

Defendant cites only State law to sustain this assignment, but does seem to suggest that he relies on a violation of his rights under the Federal Constitution as well. We shall examine the question from both views since we have reached the conclusion that his honor the trial Judge did err in allowing the admission of the evidence complained of.

Without reiterating the reasons set forth by the trial Judge for the admission of the evidence, it is sufficient to say that the Tennessee Constitutional provisions against unreasonable searches and seizures are identical in intent and purpose with the 4th Amendment of the United States Constitution. (Constitution of Tennessee, Art. 1, Sec. 7) (U.S. Constitution, Amend. 4); Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857; Ellis v. State, 211 Tenn. 321, 364 S.W.2d 925. The guidelines delineating the limits beyond which a warrantless search may not proceed are set out in Chimel v. Calif., 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, which holds in summary that police officers must, whenever practical, obtain advance judicial approval of searches and seizures through warrant procedures; that an arrest does not justify a routine search through closed or concealed areas in a room where the arrest occurs; that a search, under circumstances such as those existing in this case, may not extend beyond the search of the person arrested and the area in his reach, if the search is to retain the distinction of being classified as reasonable. There was no justification, under the facts of this case, for the search into the suitcases, and between the mattresses on the bed by the Memphis police officers. The five basic exceptions to the requirement for a search warrant are (1) consent, (2) incident to a lawful arrest, (3) probable cause to search with exigent circumstances, (4) in hot pursuit, (5) a stop and frisk situation. None of these elements were present in this case. We can only view the search as illegal and improper.

It does not necessarily result however that the failure of the police officers to comply with the constitutional restrictions regarding searches and seizures requires an automatic reversal in this case. The harmless error statute in this State provides, in pertinent part, that no verdict or judgment shall be set aside or new trial granted on account of the improper admission or rejection of evidence unless, in the opinion of the appellate court to which application is made, after an examination of the entire record in the cause, it shall affirmatively appear that the error complained of has affected the results of the trial, (T.C.A. Sec. 27-117). The Federal criteria demands only that there be a reasonable possibility that the evidence complained of might have contributed to the conviction. Fahy v. Conn., 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171. It is plain that the trial Judge’s error in admitting the evidence obtained in the unlawful search of the Memphis motel room did not violate either standard. The jewelry and coin purse found between the mattresses on the bed and the car keys found in the suitcase did no more to incriminate defendant than it did the other occupants of the room. As a matter of fact the evidence admitted tended to exculpate more than implicate him. While it is true defendant was one of three occupants of the motel room he did not establish any proprietary interest in the bed where the jewelry and coin purse were found. If the evidence is to be accepted as it appeared in the record the car keys were found in the suitcase which was the property of Richard Benjamin Dunn, and it was Mason who drove the automobile from Nashville to Memphis. On the other hand, defendant’s thumbprint was found in the motel room occupied by the victim, Hazelwood. He was observed in an adjacent restaurant at the same time the victims were present there, only a few minutes before the homicides occurred. The death weapon was found in his possession. According to his co-defendants it was he who brought Mr. Widener’s automobile to the Driver Motel where they were staying in Nashville. It was he who insisted they leave Nashville, and he who produced the credit cards belonging to the victim Widener, after they arrived in Memphis.

Finally, defendant says it was error to limit his right of cross-examination, and confrontation of State witnesses, Richard Benjamin Dunn and Phillip Glen Mason.

These witnesses were his co-defendants against whom the charges of 1st degree murder were stricken.

Defendants brief correctly states the law to be that he has the right to cross-examine a witness who has testified to material matters so long as his cross-examination is relevant to a material issue in the law suit. Monts v. State, 214 Tenn. 171, 379 S.W.2d 34; Davis v. State, 186 Tenn. 545, 212 S.W.2d 374. We have examined this record carefully and find that both of these witnesses were cross-examined extensively, and that the cross-examination covered every relevant facet of their participation and knowledge of the circumstances surrounding the charge against defendant. Both of these witnesses were represented by counsel at trial who advised them when it would be appropriate for them to assert their rights under the 5th Amendment of the United States Constitution to avoid incriminating themselves in regard to other criminal matters in which they were involved. Except for a few limited instances the witnesses were required to respond to the cross-examination under the threat of contempt charges. Those times when the 5th Amendment was pleaded and sustained generally involved matters which were not material, and had no relevance to the issue at hand, that is the guilt or the innocence of this defendant. The only benefit to the defendant which might have been attained by requiring answers to those questions would have been to attack the credibility of the witnesses. This was otherwise successfully accomplished and any additional benefit which might have been attained by cross-examination certainly did not outweigh the right of these witnesses to avoid incriminating themselves in reference to other charges pending against them.

The judgment of the trial court is affirmed.

RUSSELL and HARWELL, JJ., concur.