text:
    Isaiah FINLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 49792.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.
    Rehearing Denied Oct. 15, 1975.

      Jack M. Yates (On appeal only), Abilene, for appellant.
    Ed Paynter, Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for the offense of attempted rape. Trial was before a jury and the jury assessed punishment at five years in prison. Both the offense and the trial took place after January 1, 1974, the effective date of the new Penal Code.

In his first three grounds of error, appellant contends that the trial court erred in failing to grant him a new trial and that he was deprived of a fair and impartial jury. Specifically he complains that one of the jurors who heard the case had a fixed bias against granting probation in any case and that she concealed this bias from appellant during the voir dire of the veniremen. The juror in question, Ora Marguriette Little, executed two affidavits to that effect prior to the hearing on appellant’s motion for new trial. At said hearing, however, an affidavit of juror Little was introduced by the State which contradicted her previous affidavits. She also testified that, although she had a general bias against probation, she could vote to give probation in a case if the circumstances thereof warranted.

Although there is no voir dire statement of facts, Magee v. State, 504 S.W.2d 849 (Tex.Cr.App.1974), there is a bill of exception in the transcript which states that appellant’s trial counsel asked the entire jury panel if there were any among them who could not give probation in any case. Said bill of exception was not acted upon by the trial judge. Art. 40.09, Sec. 6, V.A.C.C.P. However, we need not consider whether appellant’s grounds were properly preserved.

The juror’s testimony at the hearing on the motion for new trial, if believed, was sufficient to deny the existence of any disqualifying bias. This Court cannot disturb the trial court’s resolution of such questions in motions for new trial in the absence of an abuse of discretion. Wright v. State, 152 Tex.Cr.R. 331, 213 S.W.2d 826 (1948); Shaver v. State, 162 Tex.Cr.R. 15, 280 S.W.2d 740 (1955). The question of the existence of bias on the part of juror Little was resolved against appellant and his first three grounds of error are therefore overruled.

Appellant also contends that the trial court committed fundamental error in failing to apply the law of attempted rape to the facts of this case in his charge to the jury. No objection was made to the court’s charge on this ground.

The trial court charged the jury on . the statutory definition of attempt as follows:

“A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends, but fails, to effect the commission of the offense intended.”

Appellant contends that the charge should have read, “A person is guilty of an attempt to commit rape where . . . .” The court’s charge goes on, however, to apply the law of attempted rape to the facts of the case in the following manner:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 30th day of March, 1974, in Taylor County, Texas, the Defendant, Isaiah Finley, did, without the consent of Lynn Sudbury, a female, and by the use of force, attempt to have sexual intercourse with the said Lynn Sudbury, and that the said Lynn Sudbury was not then and there the wife of the said Defendant, then you will find the Defendant guilty of attempted rape, as charged in the indictment.
“Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant.”

The practice of submitting a charge on the abstract principles of a law, followed by an application of those principles to the facts of the case is specifically approved in 31 Tex.Jur.2d, Instructions, Sec. 96, cited by appellant. This ground of error is without merit.

Finally, appellant claims that the passage of Art. 1, Sec. 3a amending the Constitution of the State of Texas in 1972 renders the rape statute, Art. 21.02, V.T. C.A., Penal Code, unconstitutional. It is appellant’s contention that said constitutional provision, commonly known as the Equal Rights Amendment, prohibits a statute which constrains men but not women. This contention is also without merit. It has been held many times that a woman may be guilty of rape as an accessory or a principal. Ex Parte Mauck, 158 Tex.Cr.R. 200, 254 S.W.2d 128 (1953); Thompson v. State, 153 Tex.Cr.R. 500, 221 S.W.2d 607 (1949); Heitman v. State, 78 Tex.Cr.R. 349, 180 S.W. 701 (1915) (citing cases); Campbell v. State, 63 Tex.Cr.R. 595, 141 S.W. 232 (1911) (citing cases). With the abolition of the distinction between accomplices and principals, Art. 7.01(c), V.T.C.A., Penal Code, a woman can be guilty of rape as a principal. The proscriptions of the statute thus apply equally to men and women.

We do note, however, that the definition of “sexual intercourse” given in Art. 21.01, V.T.C.A., Penal Code, makes it impossible for a woman to be the actual perpetrator of the crime of rape. To this extent, the statute does constrain men and not women. And it is equally obvious that the protections of the statute extend only to women and not to men. The statute thus sets up a classification on the basis of sex and we must determine if that classification is rationally related to the furthering of a legitimate state interest. Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975).

A contention similar to appellant’s was answered in favor of the constitutionality of the statute in Buchanan v. State, 480 S.W.2d 207 (Tex.Cr.App.1972), appeal dismissed for want of substantial federal question, 409 U.S. 814, 93 S.Ct. 175, 34 L.Ed.2d 71 (1972). Appellant in that case challenged Art. 1147(9), V.A.P.C. on the grounds that it discriminated against men. The statute made any assault by an adult male upon an adult female an aggravated assault, but an assault by an adult woman upon a man or another woman remained a simple assault. This Court found that the purpose of the statute was to prevent serious bodily injuries and that, because of the relative sizes of men and women, the statutory classification was rationally related to the accomplishment of that end.

Likewise, the object of the rape statute challenged here is designed to accomplish a legitimate state interest. It is a matter of common knowledge that most sexual assaults are perpetrated by men against women. These assaults carry with them the danger of serious bodily injury. The State also has an interest in preventing unwanted pregnancies. Men are protected from assaults, sexual or otherwise, by women by several other provisions of the Penal Code. See, generally, Title 5, Y.T.C.A., Penal Code. Furthermore, a unique characteristics test can be applied to justify the statutory classification. Hymen and uterine injury to female rape victims, the possibility of pregnancy, and the physiological difficulty of a woman forcing a man to have sexual intercourse with her all suggest a justification for the sexual distinction embodied in Art. 21.02. Comment, “An Overview of the Equal Rights Amendment in Texas,” 11 Houston L.Rev. 136, 146-150 (1973).

We note also that almost all of our sister states which have confronted this question recently have reached decisions upholding the constitutionality of their respective rape statutes against equal protection attacks. People v. Gould, 532 P.2d 953 (Colo.1975); People v. Mackey, 46 Cal.App.3d 755, 120 Cal.Rptr. 157 (1975); Brooks v. State, 24 Md.App. 334, 330 A.2d 670 (1975); State v. Price, 215 Kan. 718, 529 P.2d 85 (1974); People v. Medrano, 24 Ill.App.3d 429, 321 N.E.2d 97 (1974); State v. Kelly, 111 Ariz. 181, 526 P.2d 720 (1974); State v. Ewald, 63 Wis.2d 165, 216 N.W.2d 213, 218 (1974); State v. Drake, 219 N.W.2d 492 (Iowa 1974); In re W.E.P., 318 A.2d 286 (D.C.App.1974); cf. Wilson v. State, 288 So.2d 480 (Fla.App. 1974). As was stated in Brooks, supra:

“The equality of the sexes expresses a societal goal, not a physical metamorphosis. It would be anomalous indeed if our aspirations toward the ideal of equality under the law caused us to overlook our disparate human vulnerabilities.”

Art. 21.02, V.T.C.A., Penal Code, does not violate Art. 1, Sec. 3a, Tex.Const.

The judgment is affirmed.


source: Caselaw Access Project

author: ONION, Presiding Judge. MORRISON, Judge

license: Public Domain

text:
    Clifton Glenn BASS et al., Appellants, v. The STATE of Texas, Appellee.
    No. 49937.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.

      Walter R. Grimes, Houston, for Bass.
    Thomas D. White, Houston, for Coleman.
    Charles S. Szekely, Jr., Houston, for Haynes.
    Carol S. Vance, Dist. Atty., Joe S. Moss, James C. Brough and George Jacobs, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

These appellants were jointly tried and convicted of the offense of murder with malice, which occurred on February 18, 1972. The jury assessed punishment for appellants Bass and Haynes at life imprisonment and assessed appellant Coleman’s punishment at twenty (20) years in the Department of Corrections.

At the outset we are confronted with a common ground of error—that the trial court reversibly erred in admitting into evidence the extrajudicial confessions of the other non-testifying appellants, thereby depriving them of the right of confrontation guaranteed by the Sixth Amendment, United States Constitution. See also Article I, Sec. 10, Texas Constitution. Reliance is had upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Prior to the joint trial the appellants urged severance on the ground that each had made written statements and the State intended to use the same. The motions were denied. After the separate hearing on the voluntariness of the confessions, the severance motions were again reurged and again denied.

Subsequently, when the confessions were offered before the jury, the appellants again strenuously objected, citing Bruton to the trial court. The objections were overruled, and the confession of each appellant was admitted into evidence.

It is well established as a general rule that a confession of guilt can only be used against the person giving the confession and is inadmissible against others under the hearsay rule. See Schepps v. State, 432 S.W.2d 926, 940 (Tex.Cr.App.1968); Carey v. State, 455 S.W.2d 217 (Tex.Cr.App.1970); Evans v. State, 500 S.W.2d 846 (Tex.Cr.App.1973); Hearne v. State, 500 S.W.2d 851 (Tex.Cr.App.1973); Ex parte Smith, 513 S.W.2d 839 (Tex.Cr.App.1974); Lewis v. State, 521 S.W.2d 609 (Tex.Cr.App.1975); McCormick & Ray, Texas Law of Evidence, 2nd ed., Sec. 1219, p. 96; 24 Tex.Jur.2d, Evidence, Sec. 667, p. 272.

In Bruton v. United States, supra, the United States Supreme Court, overruling Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), held that despite instruction to the jury to disregard the implicating statements in determining the co-defendant’s guilt or innocence, admission at a joint trial of a defendant’s extrajudicial confession implicating a co-defendant violated the co-defendant’s right of cross-examination secured by the confrontation clause of the Sixth Amendment. And in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), the Supreme Court held that the Bruton decision was not only applicable to the State proceeding, but that the decision was fully retroactive.

While a Bruton error is one of constitutional dimension, we do know that such error can, under some circumstances, be harmless constitutional error. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). See also Ex parte Smith, supra; Carey v. State, supra.

Despite the court’s subsequent instructions to the jury in its charge to consider each confession only against the defendant making the same, we conclude, in light of Bruton, that the court erred in admitting the confessions. We must now determine whether such error was harmless or not as to each appellant.

Mary Simmons, wife of the deceased, Hubert Simmons, testified she and her husband were at a Billups Service Station in Houston on February 18, 1972, where her husband was employed. In the early morning hours, shortly after midnight, she awakened on a cot in a back room when two men began attacking her husband. She identified the two as the appellants Bass and Haynes. When she got up, Haynes began to beat her with a ladder and broke a chair on her until she fell and played dead. Bass then told Haynes to get a gun out of a drawer, where the husband kept his, and when Haynes brought it to Bass she heard Bass say, “I am going to get him. I want to kill him anyhow.” She then heard two shots fired. She had earlier observed her husband’s condition and knew he was unconscious. While the record was not clearly developed, it appears the witness Simmons was shot before Bass and Haynes left the station. The witness then made her way to the front of the station and yelled for help, etc. Two officers nearby heard her cries and pursued the two fleeing men. Mary Simmons identified the appellant Bass when he was returned to the scene and identified the pistol shown to her as the weapon taken from the station. It was found on Bass.

Houston Police Officer R. J. Matthias related that on the occasion in question he was across the street from the service station when he heard Mrs. Simmons holler there had been a robbery, etc., and observed Bass and another male running. He immediately apprehended Bass, who stated he had “just robbed the station and shot the attendant . . . .” When Matthias returned to the station, he observed a broken chair, an overturned stepladder, a broken 7-Up bottle with blood on it and two bullet shells.

Officer Hensen, who was with Matthias when the witness Simmons hollered, identified appellant Haynes as being close to the door of the station at the time. He pursued Haynes into a wooded area and lost sight of him. Without detailing all the other action, Haynes was apprehended in the area by other police units. Haynes’ fingerprints were found on the 7-Up bottle found in the station.

Houston Police Officer Wood arrived in the area after receiving a police broadcast. While there, he observed the appellant Coleman drive into an apartment complex parking lot with his auto lights off. He stopped Coleman, but decided to let Coleman go when he stated he lived in the complex although he did not have a driver’s license and appeared to have been drinking intoxicants. Twenty minutes later, the officer saw Coleman driving again and stopped him and arrested him.

All the appellants were taken to the police station, where they gave confessions. These confessions were admitted over objection.

Appellant Bass’ confession, omitting the warnings, signature and other formal parts, reads:

“My name is Clifton Glenn Bass and I am a colored male 20 years old and I live on Guest Street. Tonight at about 6:00 P.M. I borrowed my sisters car and this is a Comet, blue in color. The car may have been green as I am not sure. When I borrowed the car two other people that I know as RICKY and HAYNLEY were with me at this time and we started to drive around and we all went to the club on Crane Street and there we drank several beers and shot some pool in the place and then we left and I went to Pickfair Street and there I saw my son who stays there with another woman. When we left there we drove around some more and I was driving and I started to think that my kids had nothing and that I needed some money and I was am not working now and I was broke. The first thing that I thought about was hitting some place and we all drove around looking for some place to hit. We drove by the BILLIPS station on Jensen Drive and I thought that this would be a good place and we drove down the street and I let RICKY drive the car and he let me and Haynley out down the street from the station and we walked back to the station. We both went into the station and I bought a bottle of soft drink and then I hit the man at the station who is the manager and I hit him over the head with the bottle and this knocked him to the floor. At this same time Haynley was in the back part of the room where a woman was on the bed and when I hit the mna (sic) she started to hollor (sic) and then Haynley hit her over the head with a tire tool. At this time I was getting the money from the cash drawer and Haynley told me that there was a gun in the drawer and I got the gun out of the drawer and the manager was still laying on the floor and Haynley told me not to shoot the man but for some reason I shot him any way. I shot the gun two times as I was not sure that I had hit him with the first shot. Then both men and HAYNLEY left the station and run to the right on Jenson drive and then a short way up the street about two blocks the police caught me. I am now in the Homicide office and am giving this statement to Det D. R. SPURLOCK and Det Spurlock explained me (sic) rights to me and I was also given a warning by the officer that arrested me R. J. MATTHIAS. I just was told by Det Spurlock that the man that I know as HAYNLEY is really KELSO HAYNES. I can read the english language and I have read this statement and find that it is true and correct.”

Likewise, appellant Haynes’ confession reads:

“My name is KELSO HAYNES and I am a colored male 22 years old and I live at the South Park area of town and I don’t know the address. Tonight at about 7:30 P.M. me and Clifton and Rickey were together and Clifton borrowed a car from his sister and we started to ride around and drink some beer. We then went to a place on Crane Street and drank some more beer and shot some pool and I got tight and went to the car and went to sleep. I was woke up when the car run into a ditch on SCHILLER street or Curry Street I do not know which one. We could not get the car out of the ditch and Clifton and RICKY went to get some help while they were gone I took the jack and got the car out of the ditch. Then Clifton started to talk about hitting a place and I tried to talk him out of it, but he called me afraid and we argued and then I told him all right. We rode around a little more and then Ricky let me and Clifton out on Jensen and we walked to the Billups Station and went inside, and then Clifton bought a bottle of coke. Then Clifton hit the attendant with the bottle ane (sic) then I saw Clifton hit the man with a tire tool and then a woman who was on the bed in the back part of the station started to scream and I went to her and pushed her down. I didnnot (sic) hit her and then I looked back to the front and saw Clifton and the man were still tusselling and then the man started to the cash drawer and I knew that he was going for a gun and I told Clifton and Clifton got the gun out of the drawer and I tried to get him to give me the gun, but he would not and then he shot the man two times and then we left the place and started to run to the right after we came out of the place and the Police caught us. I was given a legal warning by the officer that arrested me, officer B. J. CLARK and then before this statement was made Det D. R. SPURLOCK explained my rights to me. I have read the above statement and find that it is true and correct.”

And appellant Coleman’s confession, extracted in a like manner, reads:

“My name is Freddie Coleman and I live at 4230 Wipprecht with my two brothers, three sisters and my mother and father. I am unemployed right now because I just came from California two or three weeks ago. I used to be a cook at Ritzie Drive Inn on Main Street. Tonight Clifton Bass, who I have known since I was little came by my house with a guy named Kelso. Clifton was driving his sisters car. After they picked me up ‘Man, we just hit a place’, Clifton Bass said to me. They asked me for my gun but I acted like I didn’t have one in the house after going back and looking for it. I told them my brother had it. After we left my house we went to Lockwood Street and Clifton was driving the car. He was driving and went the first street past the liquor store on Lockwood. This was Spec’s Liquor # 2. Clifton Bass got out and told me to scoot over to the drivers seat. Clifton went down to the Liquor store and came back running and got in the car and said take off. I backed the car into the ditch. We put a board under the tires and got out. Clifton said he didn’t get anything from the Liquor store but the wallet. After we left there we went riding for awhile. We went down on Jensen Dr. and they told me they were going to rob a Motel. We stopped on Curry Street. Clifton came running back and told me they were almost thru robbing the place. I didn’t know it was a service station. Clifton went back and I drove a couple blocks down the street and thats when the Officers got me. I didn’t know they had killed a man until the Officers told me. I went to the eleventh grade in school and can read and write the English Language and have read the above statement and it is true and correct.”

The cause of the death of Hubert Simmons was shown to be a gunshot wound to the head.

The appellants did not testify at the guilt stage of the trial.

In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), four defendants were jointly tried for the offense of murder. Harrington admitted being at the scene of the crime, but he denied complicity. One of the other co-defendants who had confessed and implicated Harrington took the witness stand and was cross-examined. The other two co-defendants did not take the stand, but their statements which were introduced corroborated Harrington’s presence at the scene of the crime. The court, noting the overwhelming evidence of Harrington’s guilt and the relatively insignificant prejudicial impact of these co-defendants’ statements, held that any violation of Bruton that had occurred was harmless error beyond a reasonable doubt.

Likewise in Schneble v. Florida, 405 U.S. 427,92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), the court further said:

“The mere finding of a violation of the Bruton rule in the course of the trial, however, does not automatically require reversal of the ensuing criminal conviction. In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the code-fendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.”

In Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), the court cited Harrington and Schneble with approval, and stated:

“Upon an independent examination' of the record, we agree with the Court of Appeals that the Bruton errors were harmless. The testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontrovert-ed evidence properly before the jury.”

In Carey v. State, 455 S.W.2d 217, 221 (Tex.Cr.App.1970), this court recognized the rule in Bruton was not absolute. See also Ex parte Smith, 513 S.W.2d 839 (Tex.Cr.App.1974).

In Carey v. State, supra, at p. 221, this court noted:

“It would appear that a substantial difference exists between a joint trial in which a jury hears a co-defendant’s statement inculpating a defendant who has himself made similar incriminatory ad-
missions, and the Bruton type of case in which the co-defendant’s statement is used against a defendant who has made no admissions. In the former situation the prejudice or harmful effect to the defendant, if any, is minimal and entirely insufficient to call for a reversal, particularly where there is other adequate evidence to reflect the defendant’s guilt, (authorities cited omitted)”

In Jones v. State, 227 So.2d 326 (Fla.App.1969), it was held that where the defendant’s confession, which was clearly admissible as against him, was in such detail that the statements of his co-defendant which implicated him added nothing new the admission was harmless error under Harrington v. California, supra. See also People v. Rosochacki, 41 Ill.2d 483, 244 N.E.2d 136 (1969).

Likewise, there have been holdings that Bruton error is not harmful in joint trials when the confessions of co-defendants essentially corroborate, interlock and support each other. See United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973), cert. denied 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed.2d 482; United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134; United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123. See also Stewart v. State, 519 S.W.2d 733, 737 (Ark.Supr.1975).

A review in the instant case of appellants Bass’ and Haynes’ confessions reflects they are substantially similar in nature, essentially corroborate, interlock and support each other as to the offense charged—the murder of Hubert Simmons. The confessions were merely cumulative of overwhelming independent evidence which showed that Haynes and Bass were acting together during the course of a robbery in which the deceased was beaten and killed, and that they fled from the scene and were apprehended within a short distance therefrom.

We conclude that the probable impact on the minds of the jurors of the admission of Bass’ and Haynes’ confessions was not so prejudicial so as to require reversal as to them. The State’s case as to these two appellants would not have been significantly less persuasive had these two confessions been excluded. We conclude that their admission, while error, was harmless error beyond a reasonable doubt. Ex parte Smith, supra; Carey v. State, supra; Schneble v. Florida, supra; Harrington v. California, supra.

Now we reach the question of whether the admission, over objection, of appellant Coleman’s statement was reversible error as to appellants Bass and Haynes. We conclude such admission was error as to Bass and Haynes. While that part of Coleman’s statement which merely placed Bass and Haynes at the scene of the alleged crime was not harmful error, the portion of the statement as to Bass’ remark, “Man, we just hit a place” in the presence of Haynes and Coleman’s recitation about a subsequent extraneous offense was clearly inadmissible hearsay as to Bass and Haynes. First, there was no basis for the introduction of the extraneous offenses as to these appellants, and the introduction of the statement by a non-testifying co-defendant denied to Bass and Haynes their constitutional right of confrontation and cross-examination. We cannot conclude that this Bruton error was harmless error beyond a reasonable doubt.

Next, we must consider whether the introduction of Bass’ and Haynes’ confessions, over objection, constituted reversible error as to Coleman.

Aside from the statements of the appellants, the independent evidence did not connect the appellant Coleman with Bass or Haynes or with the alleged crime. It merely placed him some five or six blocks from the scene of the alleged crime shortly after the offense. ' The only reference in the statements to the killing itself is found in Bass’ and Haynes’ confessions, as Coleman had no personal knowledge of the killing. It was Coleman’s theory of the case that he was not a principal. The court submitted the case to the jury on the law of principals and instructed the jurors to acquit Coleman unless they believed beyond a reasonable doubt that Coleman acted together with Bass and Haynes as a principal. The statement in Bass’ confession, among others, that “ . . .we all drove around, looking for some place to hit” was clearly prejudicial to Coleman and was introduced without Coleman having the benefit of confrontation and cross-examination of Bass. We are unable to conclude that without Bass’ confession the State’s case (against Coleman) would not have been less persuasive. Schneble v. Florida, supra; Lewis v. State, 521 S.W.2d 609 (Tex.Cr.App.1975).

Since the judgment against Coleman must be reversed because of the introduction of Bass’ confession over objection, we need not consider whether the introduction of Haynes’ confession, which was a Bruton error, was also reversible error.

Likewise, we need not consider Coleman’s contention that the court erred in failing to give a limiting instruction as to the use of evidence of extraneous offenses or other grounds of error.

For the reasons stated, the judgments are reversed and causes remanded.

MORRISON, Judge

(concurring in part and dissenting in part).

I concur in the results as to the appellant Coleman. However, I respectfully dissent in the results as to the appellants Bass and Haynes. The admission of appellant Coleman’s statement referring to extraneous offenses was error. But, in view of the overwhelming independent evidence pf guilt of Bass and Haynes, I cannot conclude that the probable impact on the minds of the jurors was so prejudicial as to require reversal.

The testimony of the deceased’s wife, who was an eye witness to the murder, the physical evidence and the individual confessions of Bass and Haynes were of such strong character as to lead to the conclusion that the State’s case would not have been less persuasive had this statement been excluded. Therefore, the admission of this statement, while error, was harmless error beyond a reasonable doubt. Schneble v. Florida, supra; Harrington v. California, supra.

No reversible error has been shown as to Bass and Haynes. The judgments as to them should be affirmed.

DOUGLAS, J., joins in this opinion.

      . They did testify at the Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 and Article 38.22, Vernon’s Ann.C.C.P., hearing and subsequently at the penalty stage of the trial. This testimony was limited to the voluntariness of the confessions at the first hearing, and the judge strictly limited their cross-examination at the penalty stage.

      . While the State traced the registration of the car in which he was arrested to a Robert Smith, there was no showing of any connection or relationship between Smith, and - Bass.


author: GREEN, Commissioner.

text:
    Jack C. COOPER, Appellant, v. The STATE of Texas, Appellee.
    No. 49989.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.

      Melvyn C. Bruder and James P. Neill, Jr., Dallas, for appellant.
    Lealand W. Greene, Dist. Atty., Snyder, William H. Davis, State Securities Board, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of fraudulently misrepresenting and selling securities. Punishment was assessed at five years and a fine of $3,000.00.

Three counts were included in the indictment, and appellant was convicted of the offense charged in the third count. The indictment, presented into court by the grand jury on November 21, 1973, alleges that the offense was committed on or about July 10, 1968. The security alleged to have been fraudulently sold by appellant to the complainant is set out in haec verba in the indictment, and bears the date July 10, 1968. The evidence reflects that the offense was committed on that date, more than five years prior to the presentment of the indictment.

Appellant’s first ground of error reads:

“The evidence is insufficient to show that the prosecution of the defendant was not barred by the statute of limitations, there being no proof to support the indictments tolling allegation.”

In the absence of a statute fixing a limitation period for a violation of Article 581-29, subd. C, Vernon’s Ann.Tex.Civ. Stats. (The Securities Act) under the provisions of which appellant was prosecuted, an indictment for the violation of the above article must be presented within three years from the commission of the offense, and not afterward, see Article 12.04, V.A.C. C.P., at time of the offense (now Art. 12.-01(5), V.A.C.C.P.), unless factors tolling the statute of limitations are alleged. See Article 12.07, V.A.C.C.P. (as of the date of the offense); Jackson v. State, Tex.Cr.App., 489 S.W.2d 565; Donald v. State, 165 Tex. Cr.R. 252, 306 S.W.2d 360; Parr v. State, Tex.Cr.App., 307 S.W.2d 94.

Article 12.07, V.A.C.C.P., at the time of the offense as applicable here read:

“2. The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.
“3. The term ‘during the pendency,’ as used herein, means that period of time beginning with the day the indictment, information, or complaint is filed in a court of competent jurisdiction, and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason.”

As tolling limitations, the indictment alleges:

“And the Grand Jurors aforesaid, upon their oaths aforesaid in said County and State, at said Term, do hereby present to said Court that on or about the 9th day of July, 1970, the grand jury for the County of Scurry, Texas returned an indictment against the said Jack C. Cooper, charging him with the offense hereinbefore charged in this indictment, and thereafter the said indictment was pending in said Court at the time of the return of this indictment.”

A prosecution commenced after the statute of limitations has run, unless facts under the tolling of limitations statute are plead and proved, is barred even though the statute of limitations is not plead, since it is the duty of the State to show that the offense occurred within the statutory period. See 16 Tex.Jur.2d, Criminal Law, Sec. 109, p. 248; Donald v. State, 165 Tex.Cr.R. 252, 306 S.W.2d 360.

As the Court stated in Womack v. State, 145 Tex.Cr.R. 551, 170 S.W.2d 478:

“. . . While it is not incumbent upon the State to prove the exact date alleged in the indictment, yet it is necessary that the proof show that the offense was committed at such time as that the prosecution would not be barred by the statute of limitation. The State having failed in this respect, the conviction cannot be sustained; and in support of the views herein expressed, we refer to the following cases: Smith v. State, 124 Tex.Cr.R. 686, 65 S.W.2d 309; Fisher v. State, 114 Tex. Cr.R. 102, 24 S.W.2d 1101; Temple v. State, 15 Tex.App. 304, 49 Am.Rep. 200. See also Art. 178, C.C.P. (Vernon’s Ann. Tex.C.C.P., Vol. 1) and cases there cited.”

See also, Mulvehill v. State, Tex.Cr.App., 395 S.W.2d 647; Fannin v. State, 163 Tex. Cr.R. 569, 294 S.W.2d 848; Duncan v. State, Tex.Cr.App., 59 S.W. 267.

In the instant case, the State offered no evidence to support the allegation tolling the statute of limitations. If it were a fact that in 1970 the Scurry County grand jury had returned an indictment against appellant charging him with the commission of this offense, there was no probative evidence presented to the jury of such fact. No effort was made by the State to offer in evidence any prior indictment against appellant for this offense. No probative evidence was offered to the jury, the fact finder in the case, that a prior indictment charging appellant with the same offense was pending as alleged.

The State argues that testimony adduced by counsel for appellant on cross-examination of the complainant, Myron Crawford, sufficiently proved that an indictment had been returned against appellant in 1970 for this offense, and that said indictment was pending at the time of the instant trial. Crawford, on cross-examination, testified that he had appeared before the Scurry County grand jury in 1970 about this case, and that later he learned from the paper that an indictment had been returned against appellant and another against Mr. Scott “for the selling of stock in Scurry County” but that he had never read either of the indictments. He testified that, concerning the indictments, he knew “nothing other than what was in the paper.” Questioned further about what was in the paper, he answered: “It just stated that the . an indictment had been issued against two men for the selling of stock in Scurry County.”

The State thus relies on hearsay testimony of the witness to sustain its allegations tolling limitation. As we stated in Mendoza v. State, Tex.Cr.App., 522 S.W.2d 898:

“It is a well established rule of evidence that hearsay is without probative value. It constitutes no evidence, and will not be considered as such. Reynolds v. State, Tex.Cr.App., 489 S.W.2d 866; Payne v. State, Tex.Cr.App., 480 S.W.2d 732; Cherb v. State, Tex.Cr.App., 472 S.W.2d 273; Salas v. State, Tex.Cr.App., 403 S.W.2d 440; Rogers v. State, Tex.Cr.App., 368 S.W.2d 772.”

The State also relies on certain jury argument by defense counsel, where he stated: “. . . This indictment was first returned, I believe, in 1970 . . . ” As heretofore quoted from Womack v. State, supra, “. . . it is necessary that the proof show that the offense was committed at such time as that the prosecution would not be barred by limitation.” (Emphasis added).

Likewise, statements made in a pre-trial motion would not constitute proof where such statements did not go to the jury as evidence.

We conclude that the evidence was insufficient to sustain the allegations in the indictment tolling limitation.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

      .“Any person who shall:
      * * * * * *
      “C. Engaged [sic] in any fraud or fraudulent practice in the sale, offering for sale or delivery of, invitation of offers, or dealing in any other manner in any security or securities shall be deemed guilty of a felony, and upon conviction thereof shall be sentenced to pay a fine of not more than Five Thousand Dollars ($5,000) or imprisonment in the penitentiary for not more than ten (10) years, or both such fine and imprisonment.”

      . Article 12.07, V.A.C.C.P., as it read prior thereto became, by legislative amendment effective January 1, 1974, Article 12.05, V.A. C.C.P., and on the same day, Article 12.04 became Article 12.01(5), V.A.C.C.P.

      . The term of court is shown to be the October Term, 1973, of the District Court, 132nd Judicial District of Scurry County, Texas.

      . Associated with appellant in the stock sales transaction.


author: BROWN, Commissioner.

text:
    Roy THOMAS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50405.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.
    Tom A. Boardman and Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Les Eubanks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

The conviction is for sale of heroin; the punishment, assessed by the jury, ninety-nine years’ imprisonment.

The sufficiency of the evidence is not challenged.

Appellant complains of the following argument, made by the prosecutor at the punishment stage, to which he objected:

“There was no remorse, no apology, nothing. This is the man that says he wants you to consider the affect (sic) upon him, the affect (sic) upon him. It is a reasonable deduction from the evidence, ladies and gentlemen, and your common sense as to the affect (sic) of heroin on people. How many people has that man affected?”

Appellant relies primarily on Rodriquez v. State, Tex.Cr.App., 520 S.W.2d 778, where the following argument was held to necessitate reversal:

“Now, you think about what Richard Rodriquez [appellant] has done, the lives he has touched with the heroin he has helped disburse in this county, and my heart goes out to those young people, too — the young people in all our sections of town that have no future. They have no future because people like Richard Rodriquez has made heroin addicts out of them. He has touched more lives than a killer could do with the heroin he helps disburse.”

The State recognizes the similarity between the two arguments, but contends that in Rodriquez, supra, other sales were affirmatively imputed to the accused, whereas here, the remarks were not so strongly made.

The decision in Rodriquez does not turn upon the intensity of the arguinent, but rather the obvious effect of such strategy on the jury. Commissioner Davis, speaking for the Court, wrote in Rodriquez that “in light of the punishment assessed, the fair import of the prosecutor’s argument is that appellant had made sales of heroin to many people.” The prosecutor there, as here, was calling upon the jury to speculate as to other activities of the accused and consider them in reaching a decision. In the record before us, there is nothing to support the inference that the appellant was responsible for affecting other lives with heroin.

Because of the improper argument, the judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: DOUGLAS, Judge. ONION, Presiding Judge.

text:
    Clarence Michael O’HERN, Appellant, v. The STATE of Texas, Appellee.
    No. 50542.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.
    Ruth Jackson Blake, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Allen Stilley, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation.

Appellant pled guilty to felony theft on November 10, 1971. His punishment was assessed at five years, probated. One of the conditions of his probation was that he commit no offense against the laws of this State.

A motion to revoke probation was filed on December 6, 1973. A hearing on the motion was held on April 15,1974. At such hearing the court admitted the testimony taken at the trial of Cause No. 209508, State of Texas v. Clarence Michael O’Hern. At that trial, which commenced March 25, 1974, the complaining witness testified that appellant raped her on November 9, 1973. The trial judge who conducted the probation revocation hearing also presided at the prior trial.

Appellant first contends that the evidence is insufficient to establish that he violated the terms of probation because the rape conviction was not final at the time of the hearing on the motion to revoke appellant’s probation. A similar contention was answered adversely to the defendant in Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973):

“Appellant contends that the verdict of guilty in the murder case is on appeal and therefore, cannot support the revocation. We agree. However, such is not the case before us. The State here did not rely upon the previous conviction as the basis for its application to revoke the probation. Both the motion to revoke probation and the order to revoke were worded to the effect that appellant committed the offense of murder. Thus, the State sought to allege and prove the commission, not the conviction, of the murder offense.”

See also Stephenson v. State, 500 S.W.2d 855 (Tex.Cr.App.1973).

Complaint is made that the court erred in admitting into evidence the testimony in the rape trial. The trial for rape was before the judge who conducted the revocation of probation proceedings.

In Barrientez, supra, this Court, in a revocation of probation proceeding, held that a judge could take judicial notice of the evidence of a prior trial conducted before him.

In Stephenson, supra, this Court wrote:

“We do not find an abuse of discretion by the trial judge in the revocation proceeding in admitting, hearing and reconsidering the testimony that he had heard during the rape trial. Barrientez v. State, Tex.Cr.App., 500 S.W.2d 474.”

See Rounsavall v. State, 480 S.W.2d 696 (Tex.Cr.App.1972), and Bridges v. State, 468 S.W.2d 451 (Tex.Cr.App.1971).

It would be useless to have witnesses to appear before the same judge during the revocation proceeding when he had already heard their testimony when they were subjected to cross-examination on the same fact issue.

We hold that the court did not err in this revocation of probation proceeding in admitting and considering the evidence that had been introduced during the rape trial.

Appellant contends that “the trial court erred and abused its discretion in revoking defendant’s probated sentence for felony theft, after the enactment of statutes that changed the definition of felony theft.”

Theft of property of the value of fifty dollars or more was a felony at the time of appellant’s original conviction in 1971. Theft of property of the value of two hundred dollars or more is a felony under Section 31.03(d), V.T.C.A., Penal Code. Appellant, therefore, contends that the State should be required to prove at the hearing on the motion to revoke appellant’s probation that the evidence introduced to support the original conviction for felony theft in 1971 would also support a conviction for felony theft under the new penal code. He cites no authority and presents no argument in support of his contention.

The savings clause of the new penal code, Section 6(b), V.T.C.A., Penal Code, provides, in part:

“. . . However, a conviction existing at the effective date of this Act for conduct constituting an offense under laws repealed by this act is valid and unaffected by this Act. For purposes of this section, ‘conviction’ means a finding of guilty in a court of competent jurisdiction and is of no consequence that the conviction is not final.”

Thus, his conviction for felony theft in 1971 was unaffected by the new penal code.

Next, he contends that “the trial court erred in revoking the probated sentence of defendant when the order entered did not comport with the findings of the court.” The order revoking probation provides, in part:

“. . . that said defendant has violated the terms of his probation in that the defendant committed the felony offense of rape and rectal sodomy in Harris County.” (Emphasis supplied)

At the conclusion of the hearing on the motion to revoke, the trial court entered oral findings that the appellant violated the terms of his probation by committing the offenses of rape and sodomy. The slight variance between the court’s oral and written findings is immaterial since the evidence is sufficient to support the trial court’s finding that appellant violated the terms of his probation by committing the offense of rape on November 9, 1973. See Rosemond v. State, 482 S.W.2d 871 (Tex.Cr.App.1972). No abuse of discretion has been shown.

The judgment is affirmed.

ONION, Presiding Judge.

In disposing of ground of error number one the majority opinion relies upon Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), and Stephenson v. State, 500 S.W.2d 855 (Tex.Cr.App.1973). Those cases held that a trial judge could take judicial notice at a revocation of probation hearing of testimony offered at a prior trial over which the trial judge presided and where the probationer was represented by the same counsel who represented him at the revocation hearing. This writer dissented in both the Barrientez and Stephenson cases. In the instant case the majority opinion apparently attempts to extend the doctrine of Barrientez and Stephenson by failing or refusing to take note of whether the probationer was represented by the same counsel who represented him at the prior trial. The majority simply mentions that the trial judge was the same. The facts of the instant case reveal that the attorney was the same.

I concur in the disposition of ground of error number one in this case because unlike Barrientez and Stephenson there was no objection to the request that the judge consider the testimony which had been offered at the prior trial.


author: DALLY, Commissioner.

text:
    Ex parte Alfred Ray BRADSHAW.
    No. 50843.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.
    Joe E. Taylor, Denison, for appellant.
    Charles L. Waldrum, City Atty., and John H. Morris, Asst. City Atty., Bonham, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from an order in a habeas corpus proceeding brought to reduce bail. The trial court refused to further reduce bail which had been set in the total amount of $65,000. The appellant was charged with committing five burglaries in Fannin County and was being held on fugitive warrants from Mississippi and Oklahoma.

On August 20, 1975, when the appeal was filed and this Court obtained jurisdiction, McGee v. State, 445 S.W.2d 187 (Tex.Cr.App.1969), the appellant was in custody of the sheriff of Fannin County. On September 17th, the State filed a motion in this Court moving that the appeal be dismissed because the appellant had escaped from custody. That motion is supported by an affidavit made by Raymond Taylor, the sheriff of Fannin County, stating that the appellant had escaped from custody either in the night of September 11th, or in the early morning on September 12th, and that he still remained at large on September 15th.

Article 44.09, V.A.C.C.P., in pertinent part provides:

“If the defendant, pending an appeal in the felony case, makes his escape from custody, the jurisdiction of the Court of Criminal Appeals shall no longer attach in the case. Upon the fact of such escape being made to appear, the court shall, on motion of the State’s attorney, dismiss the appeal; but the order dismissing the appeal shall be set aside if it is made to appear that the defendant has voluntarily returned within ten days to the custody of the officer from whom he escaped;

Article 44.10, V.A.C.C.P., provides:

“When any such escape occurs, the sheriff who had the prisoner in custody shall immediately report the fact under oath to the district or county attorney of the county in which the conviction was had, who shall forthwith forward such report to the State prosecuting attorney. Such report shall be sufficient evidence of the fact of such escape to authorize the dismissal of the appeal.”

Is Article 44.09, V.A.C.C.P., applicable to an appeal from an order in a habeas corpus proceeding brought to obtain a reduction of bail? The Court of Appeals in an early case held that the statute in effect at that time which was almost identical in wording to Article 44.09, V.A.C.C.P., included an appeal from an order in a habeas corpus proceeding brought to obtain bail in a capital case. Ex parte Wood, 19 Tex.App. 46 (1885). The appeal in that case was dismissed and it was said the statute was not confined or limited to appeals in felony cases in which the defendant had been tried and convicted, but that it was applicable to all appeals in felony cases. Ex parte Wood, supra, controls our disposition of this appeal.

The State’s motion is granted; the appeal is dismissed.

Opinion approved by the Court.

      . See Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975), upholding the constitutionality of Article 44.09, V.A.C. C.P.


author: RENDLEN, Judge.

text:
    Richard A. CAMPBELL, Plaintiff-Respondent, v. CITY OF FRONTENAC et al., Defendants-Appellants.
    No. 36065.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 2, 1975.
    George E. Heifers, Klamen, Summers & Compton, Ronald N. Compton, Clayton, for defendants-appellants.
    Shaw & Howlett, Joseph Howlett, Clayton, for plaintiff-respondent.
   RENDLEN, Judge.

The City of Frontenac, defendant below, appeals from an order enjoining enforcement of its ordinance relating to parking garbage trucks within the City and from prosecuting violations of that ordinance. The defendant City also appeals from denial of its counterclaim seeking an injunction to prevent garbage and refuse trucks from parking on plaintiff’s property within the City. We affirm.

Under the provisions of § 71.680 RSMo 1969 cities of the fourth class

“ . . . may provide for the gathering, handling and disposition of garbage accumulating in such cities and may do such other and further acts as are deemed expedient for the protection and preservation of the public health, as the public health may be affected by the accumulation of . garbage . . . ”

Similarly cities of the fourth class are authorized by § 79.370 RSMo 1969

“ . . . to regulate or prevent the carrying on of any business which may be dangerous or detrimental to the public health . . and to pass ordinances for the prevention of nuisances and their abatement.”

Acting under this statutory authority, defendant, a city of the fourth class, on July 11,1972, adopted an amendment to its general garbage Ordinance No. 407 by adding new Subsection 7 to Section 7 as follows:

“Equipment of the City Refuse Collector, or any other licensed or unlicensed garbage and rubbish collector shall not be parked, or stored in any manner on public or private property in the City of Frontenac, Missouri Violations of the provisions shall be subject to penalties as provided in Ordinance 454 of the City of Frontenac, Missouri, covering Nuisances.” (emphasis added)

During January, 1973, defendant ordered summons issued to customers of plaintiff who regularly parked five garbage trucks overnight at his place of business. Defendant advised plaintiff of its intention to issue summons for all subsequent violations and though not clear from the transcript, plaintiff in his brief states the City caused arrest notices to be served upon him for violations of the ordinance. Thereupon plaintiff brought this action for injunctive relief to prevent issuance of summons and to restrain enforcement of the ordinance; in response defendant by counterclaim sought to enjoin further ordinance violations. As the only witness called, plaintiff testified that for the 17 years he had allowed his customers, without charge, to park their garbage trucks on his Service Station premises within the City and that he derived gross monthly income of approximately $1,500 from sales of goods and services to the operators of those trucks.

Enjoining the City and denying the counterclaim, the court ruled: “That the ordinance ... in its application to Plaintiff is illegal and without authority and that said ordinance in its application to Plaintiff is oppressive to Plaintiff’s business

Our review in this court-tried case is upon both the law and the evidence as in suits of an equitable nature, with due regard for the trial court’s opportunity to have judged the credibility of witnesses. Rule 73.01(3)(a), V.A.M.R. Long v. Kyte, 340 S.W.2d 623, 628[5] (Mo.1960). “In such cases it is our duty to review the case de novo, and in doing so weigh the competent evidence and reach our own conclusions and enter such judgment as the trial court should have entered . . . ” Dunning v. Alfred H. Mayer, Co., 483 S.W.2d 423, 427[1] (Mo.App.1972). Though no findings of fact or conclusions of law were requested or made by the trial court, it will be assumed that all fact issues were found in accordance with the judgment entered and the judgment will be affirmed if it is correct under any theory supported by the evidence. Lossing v. Shull, 351 Mo. 342, 173 S.W.2d 1, 5[1] (1943); Pittman v. Great American Life Insurance Co., 512 S.W.2d 857, 858[1] (Mo.App.1975). Defendant contends the ordinance was properly enacted as a lawful exercise of the City’s police power to protect the health of its citizens and enforceable notwithstanding plaintiff’s claim to a prior nonconforming use.

We entertain no doubt that a city of the fourth class has the power to reasonably regulate the collection, removal and disposition of garbage accumulating within its limits, either under the police power inherent in sovereignty or under the power conferred by the Missouri Constitution and applicable Statutes. Valley Spring Hog Ranch Co. v. Plagmann, 282 Mo. 1, 220 S.W. 1, 3[2] (1920); Harper v. Richardson, 222 Mo.App. 331, 297 S.W. 141, 145[5] (1927). See also 62 C.J.S. Municipal Corporations § 265 at 617; 7 McQuillen Municipal Corporations (rev.ed. 1968) § 24.245 at 86; 83 A.L.R.2d 801-802. However, the case turns on whether the questioned ordinance is a valid exercise of that regulatory power. We hold it is not. “[A] law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained. Under the guise of protecting the public interest the legislature may not arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations.” Lutz v. Armour, 395 Pa. 576, 151 A.2d 108,110[3] (1959), quoting Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634, 636 (1954). See Valley Spring Hog Ranch Co. v. Plagmann, 220 S.W. at 6[11], and City of St. Louis v. Evraiff, 301 Mo. 231, 256 S.W. 489, 495[2] (en banc 1923); Boulevard Apts., Inc. v. Mayor and Council of Borough of Lodi, 110 N.J.Super. 406, 265 A.2d 838, 840[2] (1970); and Wiggins v. Town of Somers, 4 N.Y.2d 215, 173 N.Y.S.2d 579, 149 N.E.2d 869, 871[4] (1958); 62 C.J.S. Municipal Corporations § 265 at 618-619; 7 McQuillen § 24.245 at 87. It appears to be generally held that whatever measure is taken by a municipality to secure the removal of garbage and rubbish, it must bear a reasonable relation to the power of protecting the public health and must not discriminate arbitrarily and capriciously in favor of one group to the detriment of another. 83 A.L.R.2d 802. Though not unmindful of municipal problems involving collection and transportation of garbage, unless some real relationship is shown between the intended regulation and public health, we cannot recognize the questioned ordinance as proper legislative action. Though it has been said that “garbage” is a nuisance per se, appellant cites no authority, nor have we found that “equipment of the city refuse collector” constitutes a nuisance per se. Further, there is no evidence that these garbage trucks were a nuisance in fact or interfered with the health and safety of the community. Section 79.370 RSMo 1969, V.A.M.S., gives the City power to enact ordinances for the abatement of nuisances, but the City has no power to declare that to be a nuisance which is not so at common law or by statute, Olympic Drive-In Theatre, Inc. v. City of Pagedale, 441 S.W.2d 5, 9[3] (Mo.1969); Sturgeon v. Wabash Ry. Co., 223 Mo.App. 633,17 S.W.2d 616, 618[1-2] (1929), or which is not in fact a nuisance. Olympic Drive-In Theatre, Inc. v. City of Pagedale, supra; Potashnick Truck Service v. City of Sikeston, 351 Mo. 505, 173 S.W.2d 96, 100[4] (1943).

The challenged ordinance’s absolute prohibition against parking or storing garbage (or rubbish) collection equipment in any manner on public or private property in the City of Frontenac is excessive in its scope and breadth. It does not regulate or relate to the sanitary condition of the equipment or the manner in which they are cleaned or maintained. No attempt is made to distinguish between trucks which are clean or dirty, watertight or leaking, malodorous or otherwise. Could it be seriously argued that a new garbage truck, fresh from the factory assembly line parked on plaintiff’s premises, presents a threat to public health? To suggest a substantial relationship between a thoroughly clean and sanitized garbage truck and the public health of the community is spurious. The ordinance as written would prevent storage of a supply of new and unused garbage cans, or other “equipment” of any garbage collector at any place, be it public or private whether a storehouse or garage, if it lies within the City limits. Large collection containers commonly employed in modern garbage service and left for regular exchange at apartment buildings or commercial customers would be eliminated if owned by the collector but permitted if owned by the customer. The vagueness and lack of specificity clearly demonstrates that the questioned subsection of the ordinance is only incidently related, if at all, to public health and welfare.

The absolute geographic exclusion would eliminate garbage or refuse collection equipment of any kind from the City except when in operation; it would permit garbage collectors to work within the City limit but require removal of all equipment on completion of their rounds. The burden of maintaining a place to locate the equipment is shifted to neighboring municipalities or unincorporated areas, assuming they would be amenable to such arrangements.

We find that the ordinance imposes restrictions upon the use of property that have no reasonable relation to the health, safety or welfare of the inhabitants of the City. That the ordinance as enacted is not properly within the powers delegated or inherent to the City but is instead excessive thus invalid and unenforceable. The judgment of the trial court is correct in that it restrains enforcement as to plaintiff; however, the ordinance is invalid, thus unenforceable for any purpose.

The Judgment, as modified hereby, is Affirmed.

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

      . The Missouri Constitution, 1945, as amended 1972, Article IV, § 37, provides in pertinent part: “The health and general welfare of the people are matters of primary public concern . . . the general assembly may grant power with respect thereto to counties, cities or other political subdivisions of the state.”

      . Ordinance No. 454, adopted April 11, 1972, defines certain public nuisances and provides that the maintenance of such nuisance shall be a misdemeanor, punishable as such and subject to abatement by appropriate suit.


text:
    STATE of Missouri, Respondent, v. Bruce Edward COLE, Appellant.
    No. 35889.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 2, 1975.

      Charles D. Kitchin, Public Defender, John E. Bell, Henry J. Rieke, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., Daniel J. Murphy, Asst. Circuit Atty., St. Louis, for respondent.
   RENDLEN, Judge.

Appellant seeks review of the judgment convicting him of carrying a concealed weapon for which he was sentenced under the Second Offender’s Act to five years imprisonment. § 564.610, RSMo.1969, V.A. M.S.; § 556.280, RSMo.1969, V.A.M.S. We reverse and remand.

Two issues are raised on this appeal: First, the court improperly permitted comments and direct evidence of other crimes not charged in the indictment; second, the trial court erred in denying appellant’s request for further psychiatric examination at state expense or a hearing to determine appellant’s fitness to proceed.

Appellant contends the trial court erroneously permitted introduction of evidence showing that he was stopped by police officers because of his resemblance to the broadcast description of a suspected felon and that appellant was in fact arrested for robbery before discovery of the concealed weapon leading to the charge in the case at bar.

The indictment as originally filed charged defendant on two counts — I, robbery first degree, and II, carrying a concealed weapon. Count I was nolle prose-quied before trial and only the concealed weapon charge remained. The probable cause for appellant’s arrest was tested, pri- or to selection of the jury, at a hearing of appellant’s motion to suppress the gun in question; because of the court’s denial of that motion, neither the legality of the arrest nor the seizure was at issue during trial. State v. Tillman, 454 S.W.2d 928, 926[5, 6] (Mo.1970). The concealed weapon charge required proof of only two elements: (1) intention to carry a weapon concealed, (2) concealment on the person or in such close proximity to the accused so as to be under his easy and convenient control. State v. Hall, 508 S.W.2d 200, 206[6] (Mo. App.1974). See also State v. Jordan, 495 S.W.2d 717 (Mo.App.1973).

Defendant was stopped by police while riding in an automobile near the intersection of North Florissant and Hebert in the City of St. Louis on the morning of November 6,1972. Officers Price and Bonney had stopped another car at the intersection for a traffic violation and while thus involved, Bonney noticed appellant in a passing vehicle who appeared to fit the description of a felony suspect described in an earlier police broadcast. Stopping appellant’s car, Bon-ney asked him to step out; and as he did so, appellant turned his back to the officer, reached in his right front trouser pocket, removed a revolver and dropped it to the floorboard of the car. Bonney retrieved the gun and placed him under arrest. Appellant offered no evidence and the jury returned a guilty verdict.

Notwithstanding the limited scope of the issues, by direct evidence, opening statement and closing argument, reference was made to appellant being stopped by the police while riding in an automobile because he had a strong resemblance to the broadcast description of a suspect in a felony committed earlier that day. Though the precise nature of the other crime was not identified to the jury, in the state’s effort to embellish, numerous references were made to the circumstances of appellant’s arrest and his involvement in that other “crime.” Those instances include the following:

1. In opening statement when referring to the concealed weapon charge against appellant, the prosecutor added this gratuitous remark: “He was arrested on another charge and immediately after this particular arrest, tried to get rid of this particular gun.” Defense counsel objected on the ground the statement constituted proof or reference to another crime and requested a mistrial. The objection was overruled and mistrial denied.

2. The prosecutor then stated that Officer Tomlinson would testify he had broadcast a radio description of a suspect and within a half an hour the arresting officers saw the defendant who matched the description they heard on the radio.

3. Immediately thereafter (still in opening statement) the prosecutor referred to anticipated testimony of Officer Bonney and stated: “He will tell you that he retrieved that gun from the floorboard of the automobile, placed this man under arrest for several charges, and then subsequently he took that gun.” Defense counsel’s objection to the prosecutor’s reference to “other charges” was overruled.

4. Officer Tomlinson was called and from his testimony it became apparent he had no connection or involvement with the arrest or investigation of the concealed weapon’s charge for which appellant was being tried. Tomlinson testified that he had been dispatched to the Greyhound Bus Depot some distance from the scene of arrest shortly after midnight on the 6th of November, made an investigation of a crime which had occurred at that location and by police radio, broadcast a description of the suspect. Recounting that broadcast, he testified: “I said that a subject was wanted for a felony in the Fourth Police District, he was a Negroe, approximately between the ages of twenty to twenty-two . ” Defense counsel interrupted and out of the jury’s presence again objected to the reference to other crimes and pointed out that there was now a reference to the other crime as a felony. He asked that the entire line of testimony be stricken on the basis that it constituted proof of other crimes and was highly prejudicial. The objection was overruled and the renewed motion for mistrial was denied.

5. The following then occurred: (by Mr. Murphy to Officer Tomlinson) “Q. That description that you placed on the police radio cars was [sic] ... A. Wanted for a felony in the . . .” Defense counsel again objected and suggested hearsay as an additional ground for his objection. The objection was again overruled and the witness completed his answer. “Wanted for a felony in the Fourth Police District; was a Negroe, male, twenty to twenty-two red afro hair, wearing a black, leather jacket and gray and white pants with black and red strips and armed with a chrome gun.”

6. Next called was Officer Price who testified he heard the police radio broadcast about one a. m. that morning. The question was asked: “Q. What was the nature of that broadcast, Officer? A. Subject wanted for a felony in the Fourth District.” A substantial part of Price’s subsequent testimony related to clothing seized from defendant and was shown to be similar or the same as that described in the police broadcast. The court inquired of the prosecutor whether he was attempting to prove the robbery or the charge of carrying a concealed weapon. The prosecutor replied it was the latter, to which the court responded: “What has the evidence got to do with carrying concealed weapon . this clothing?” Mr. Murphy — “This gives these two Officers the probable cause to arrest this man . . . ” The court then overruled the defense objection and admitted the evidence, apparently for the reason suggested by the prosecutor.

7. Officer Bonney on further direct examination again testified the subject was “. . . wanted for a felony in the Fourth District earlier that date.” The defense again objected to any reference to proof of another crime not charged and the objection was again overruled.

8. During closing argument the prosecutor referring to Officer Tomlinson, who had no connection with the apprehension or arrest, made this statement: “What did Tom-linson say? He said he gave you a description, he gave it in detail about someone being wanted in the Fourth Police District for a crime. It happened shortly before one o’clock. He told you what time he put that on the A.P.B., the All Points Bulletin, on the police radio. He told you the description that he gave: Negroe male, twenty to twenty-two, five' ten", approximately, black, leather jacket, gray and black stripped pants, with a chrome gun with red afro hair. All right.”

9. The prosecutor then made these remarks relative Officer Bonney’s testimony: “He notices this man sitting in a Buick automobile in the same police district twenty-five minutes later and, his broadcast indicated another felony with this man involved.” Though no objection appears to these remarks of the prosecutor, the several prior defense objections adequately preserved the issue for appeal. Defendant had seasonably objected to the evidence of this character in each instance when offered. His objections were overruled and he should not be required or expected to repeat the objection when the prosecutor in closing arguments made reference to those matters which the court had admitted in evidence. This is particularly true when, as in this case, the trial judge had earlier heard arguments of counsel on the issue of whether such testimony was admissible and repeatedly made firm rulings admitting such testimony, overruling objections and denying appellant’s requests for mistrial. Schears v. Missouri Pacific Ry. Co., 355 S.W.2d 314, 321[6] (Mo. banc 1962). State ex rel. State Highway Commission v. Offutt, 488 S.W.2d 656, 661 (Mo.1972).

It is a general rule that proof of the commission of separate crimes is inadmissible unless such proof has some legitimate tendency to directly establish defendant’s guilt of the charge for which he is tried. However, evidence of another crime may be competent to prove the crime charged when it tends to establish: (1) motive, (2) intent, (3) absence of mistake or accident, (4) common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or (5) identity of the person charged with the crime on trial. If the evidence is logically pertinent and reasonably tends to prove a material fact in issue, it should not be rejected merely because it incidentally proves defendant guilty of another crime. “But, the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny ... if the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected.” State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (en banc 1954). The state has not justified the presentation of the information here complained of, on the basis of the recognized exceptions to the general rule, State v. Tillman, 454 S.W.2d 923, 926 (Mo.1970).

Proof of the commission of separate and distinct crimes is not admissible and may not be referred to by the prosecution unless such facts have some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial. State v. Lee, 486 S.W.2d 412, 414[3] (Mo.1972).

The state in its brief does not contend that the various statements were offered to establish one of the five exceptions set out in Reese, supra, nor that they were necessary to prove probable cause for the initial stopping or arrest of appellant. Rather, the state argues that references to other crimes were justifiable under the doctrine of res gestae, and even if erroneous, merely constituted harmless error, relying on State v. Robb, 439 S.W.2d 510, 514[7] (Mo.1969), for the proposition that “when a defendant in the course of the perpetration of one crime commits another, the state is not required to nicely sift and separate the evidence and exclude the testimony, tending to prove the crime for which he is not on trial, when it forms a part of the res gestae of the crime charged.” In Robb the appellant was charged with stealing 125 radiators, and in his opening statement the prosecutor stated that a truck belonging to the owner of the radiators was also missing. Although no objection to the statement was timely made, the court noted that the disappearance of the truck and of a large number of radiators, the conveyance of which required some type of vehicle, occurred in the course of the same transaction and formed part of the res gestae of the crime charged. This is clearly distinguishable from the case at bar. Here the nature of the other crime for which the appellant was arrested and which was the subject of the police bulletin was never before the jury. The only reference to the other crime as an armed robbery occurred at the pre-trial hearing out of the jury’s presence. In the absence of evidence of the nature of the alleged first crime it would be impossible for the jury to know that the offense charged was committed in the course of the perpetration of another crime since there was no way to know the nature and circumstances of the first crime. This is not a situation where the state would be required to “nicely sift and separate” the evidence of multiple crimes since there was no indication that the alleged offenses were so intertwined as to be inseparable in presentation to the jury. These alleged crimes and the evidence of each were neither intertwined nor connected. Furthermore, the jury was told that the crime referred to in the radio bulletin had occurred earlier on the day of appellant’s arrest for the concealed weapon charge. The time lapse between the first purported offense and the crime for which appellant was tried does not comport with the theory of res gestae that the various crimes are part of the same transaction. State v. Parton, 487 S.W.2d 523 (Mo.1972); State v. Martin, 275 S.W.2d 336 (Mo.1955); State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877 (1931). Res gestae as a theory for admitting evidence of other crimes requires intimate connection between the separate crime and that for which defendant is tried. It is insufficient merely to show proximity of the place of arrest for the offense charged and that of an independent crime. Since no sufficient relation was shown between the other crime and that for which appellant was tried, the state’s reliance on res gestae must fail. The state would have us hold that the multiple references to other crimes is harmless error. However, the extreme impropriety of the remarks and evidence concerning other alleged offenses is firmly stated in State v. Lee, supra at 414:

“[E]vidence that accused has committed another crime independent of, and unconnected with, the one on trial is inadmissible; It is not competent to prove one crime by proving another” . . . the statement and testimony were not related to the offense charged, had a dangerous tendency and misleading probative force and constituted reversible error These references to and evidence of other crimes unrelated to the case on trial violated defendant’s right to be tried for the offense for which he was indicted “ ‘The practice of seeking to obtain an advantage in a trial of a case by injecting therein unfair insinuations should have the severest condemnation and suffer the most disastrous result permissible under the law.’ ”

In this case appellant was subjected not to one but multiple references to another felony. Even if some mention to the circumstances of appellant’s arrest had been necessary for a clear presentation of the case, repeated references are impermissible. State v. Walker, 490 S.W.2d 332, 335[2] (Mo.App.1973); State v. Griffin, 336 S.W.2d 364, 367[2] (Mo.1960). Evidence of other charges against appellant were neither relevant nor necessary to prove the present case against him and a reasonable effect of such evidence was to encourage speculation among the jury as to what other felony had been committed by a defendant who was on trial for carrying a concealed weapon. State v. Holbert, 416 S.W.2d 129, 133[8] (Mo.1967). Such insinuations are no less damaging than more direct evidence of independent crimes. The many references to the other crime, the felony, the radio description of the felony suspect, the prosecution argument that the “broadcast indicated another felony with this man involved,” and the detailed references to the clothing matching the radioed description were ostensibly offered to establish probable cause for the arrest and seizure of the pistol. The prosecutor so stated during trial; however the issue of probable cause went out of the case when the matter was aired at the pre-trial hearing on appellant’s motion to suppress. Evidence concerning the lawfulness of the arrest was irrelevant, since the probandum it tended to prove was not before the jury. See State v. Tillman, supra at 926[5, 6].

There being no proper justification for the statements and testimony of another crime that related to the offense charged, and in view of its “dangerous and misleading probative force,” State v. Holbert, supra at 132[2 — 6], the cause will be reversed and remanded for new trial. It is unnecessary to rule the other issue raised by appellant.

Reversed and remanded.

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

      . Emphasis had been added to cuoted portions of the transcript set out in the following numbered paragraphs.

      . As previously noted, the charge of robbery had been nolle prosequied by the prosecutor shortly before this remark of “several charges” and we find no justification for making the statement.


author: DOWD, Judge.

text:
    HUMAN DEVELOPMENT CORPORATION OF METROPOLITAN ST. LOUIS, a corporation, Plaintiff-Appellant, v. Mary J. WEFEL et al., Defendants-Respondents.
    No. 36216.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 2, 1975.

      Louis Gilden, St. Louis, for plaintiff-appellant.
    Thomas W. Wehrle, County Counselor, Don R. Williams, Associate County Counsel- or, Lashly, Caruthers, Thies, Rava & Hamel, Richard D. Schreiber, John Fox Arnold, Jack B. Sehiff and William C. Wefel, Clayton, for defendants and respondents.
   DOWD, Judge.

Plaintiff appeals from the dismissal of its petition to set aside a default judgment previously entered against it. We affirm the trial court’s action.

Prior to the present action, defendant Wefel and her attorney, defendant Sehiff, filed a petition for damages against appellant in the Magistrate Court of St. Louis County. The action was brought to recover $1528.00 claimed to be wages due to Wefel and $1500.00 damages claimed for the alleged improper termination of Wefel’s employment. Sheriff Hoeh’s deputy served the summons at appellant’s branch office in St. Louis County rather than at appellant’s main office in the City of St. Louis. The return of service is proper on its face. The summons is marked as delivered to “Jane Doe of said corporation. (S)he being in charge of the office of said Corporation.” An employee of the branch office sent a letter, dated March 1, 1974, to the Sheriff’s Office, which was forwarded to the Magistrate Court, in which the employee claimed that her office would not accept the summons since the office did not hire or fire employees. The employee wrote that the summons should be presented to appellant’s main office in the city.

Trial was set for March 22, 1974 before the Magistrate Judge, defendant Seegers. A default judgment was entered after appellant failed to appear. No proof was offered by Wefel in support of her claims before judgment was entered, and Wefel sought execution on the judgment after the 10-day period for appeal had elapsed.

Appellant then brought its petition to set aside the default judgment and to enjoin execution of the judgment. The petition was brought on the ground, that equity would grant relief against a default judgment procured by fraud. The petition alleged that appellant had a meritorious defense to the prior action as represented by the appended exhibit containing the Summons, Judgment, Execution, and notarized statement of appellant’s general manager that he had received no notice of the suit and that Wefel had quit work of her own volition and was entitled to no further wages.

The trial court denied the injunction against execution and sustained a motion to dismiss appellant’s petition for failure to state a cause of action.

Equity has jurisdiction to set aside a default judgment on the grounds of extrinsic fraud, accident, or mistake. Hamm v. Hamm, 437 S.W.2d 449, 453 (Mo.App.1969). To succeed in setting aside the judgment, the defaulting party must prove that he exercised reasonable diligence or has a good excuse for the default, that he has a meritorious defense to the main action, and that the other party will not be substantially harmed by the delay of a new trial. Gorzel v. Orlamander, 352 S.W.2d 675, 678 (Mo.1961); Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116 (Mo.1955). The decision to grant or deny the motion to set aside the default judgment is left to the discretion of the trial court. While there is a policy in favor of trial on the merits when possible, the trial court’s decision will be disturbed only for an abuse of discretion. Gorzel v. Orlamander, supra; Whitledge v. Anderson Air Activities, supra. The failure to set aside a default judgment is an abuse of discretion only if it clearly appears that the defaulting party has a good excuse for the default and a meritorious defense. Dodge v. Safe-Guard Sales, Inc., 356 S.W.2d 101, 102 (Mo.App.1961).

Appellant asserts that it was fraudulently denied knowledge of the suit and claims that its default is therefore excused. Appellant charges that the service of process upon its branch office rather than upon its main office in the city and the delay before execution on the judgment until after the time for appeal had elapsed prevented appellant from raising its defense. Appellant also charges that the entry of the default judgment without hearing Wefel’s proof on her claims was fraud upon appellant.

Extrinsic fraud is required in order to set aside a default judgment on the basis of fraud. The fraud must relate to the manner in which the judgment was procured. Fraud in matters pertaining to the judgment itself is intrinsic fraud and is not a proper basis for setting aside a default judgment. Reis v. La Presto, 324 S.W.2d 648, 653-654 (Mo.1959); Head v. Ken Bender Buick Pontiac, Inc., 452 S.W.2d 596, 598 (Mo.App.1970). “The fraud that vitiates a judgment is a fraud which goes to its procurement, not fraud relating to the merits of the action.” Head v. Ken Bender Buick Pontiac, Inc., supra, 598. The magistrate court’s entry of default judgment before hearing proof of the petition’s allegations in contravention of Section 517.460 (RSMo 1969) and before hearing proof of the amount of damages claimed in contravention of Thomas v. Commercial Credit Corp., 335 S.W.2d 703, 706 (Mo.App.1960), is, at best, intrinsic fraud. Judgment upon insufficient evidence is intrinsic fraud, Head v. Ken Bender Buick Pontiac, Inc., supra, and this court has refused to set aside a default judgment when the defaulting party charged that judgment had been entered without first hearing evidence. Mesker v. Cornwell, 145 Mo.App. 646, 123 S.W. 488, 489-490 (1909).

Appellant’s charge that he was denied notice of the suit is of a different nature. If the particular circumstances create a duty to disclose some material matter, concealment of that matter amounts to fraud in the procurement of the judgment if it prevents a defense from being raised. Jones v. Arnold, 359 Mo. 161, 221 S.W.2d 187, 193-194 (1949). If the respondents owed a duty to appellant to notify it of the pendency of the suit after process had been served or if the respondents owed a duty to appellant to notify it of the default judgment before execution, then appellant has stated a cause of action to have the default judgment set aside. We do not believe that such duties were owed to appellant in this case.

Service of process was properly had upon appellant’s branch office. Section 517.110(4) (RSMo 1969) provides that a corporation having an office or doing business within this state may be served by delivering a copy of the summons to any agent of such corporation in charge of any office or place of business. Appellant, who has the burden of proving that the service was fraudulent by clear, cogent, and convincing evidence, (Underwood v. Underwood, 463 S.W.2d 915, 917-918 (Mo.1971)) has not alleged that the recipient of the summons in this case was not its agent. In addition, appellant has not suggested that the return of service in this case was not regular on its face.

Under facts similar to this case, the court affirmed the dismissal of a petition to set aside a default judgment. Underwood v. Underwood, supra. In that case, the defaulting party claimed that she had not been “personally” served since the summons had been left with another who had not notified the defendant of the suit. The court held that the defaulting party had failed to sustain her burden to prove fraud on the basis of service because the return of process was regular on its face. Two situations exist in which a plaintiff is required to notify a defendant of a trial by means additional to service of process. The plaintiff has a duty to inform the defendant of the date set for trial after service when the plaintiff has assumed that duty by representations to the defendant. Kollmeyer v. Willis, 408 S.W.2d 370, 382 (Mo.App.1966). Appellant does not allege that respondents have made such representations. The courts have also found such a duty when the plaintiff has chosen to serve the defendant by publication. Jones v. Arnold, 359 Mo. 161, 221 S.W.2d 187 (1949); Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121 (1933). In both the Jones and Fadler cases, the court noted that service by publication was legally sufficient but set aside the judgment on the ground that the plaintiff had designed service with the intention of preventing the defendant from learning of the suit. No distinctions are to be drawn between service by publication and personal service in actions to set aside a judgment, Brasker v. Cirese, 269 S.W.2d 62, 67 (Mo. banc 1954). A defendant personally served has less excuse to cry fraud than one who has no actual notice. Fadler v. Gabbert, supra, 131. We are unable to discern facts alleged which prove respondent intended to deprive appellant of knowledge of the suit by personal service upon appellant’s branch office.

The court also believes that respondents did not owe a duty to inform appellant of the default judgment prior to execution. There is no requirement that a defaulting party be notified of the judgment. Crowley v. Behle, 131 S.W.2d 383, 386 (Mo.App.1939).

The facts alleged by the petition ' suggest that mistake rather than fraud should be the basis upon which appellant should bring his petition to set aside the default judgment. While the appellant has not pleaded mistake, the sufficiency of the petition is determined from the facts pleaded, not what the pleader calls the facts. Aetna Casualty & Surety Co. v. Lindell Trust Co., 348 S.W.2d 558, 563 (Mo.App.1961). A default judgment has been set aside on the ground of mistake when substitute service was had upon defendant’s wife who failed to tell her husband of the summons. Cherry v. Wertheim, 25 S.W.2d 118, 120-121 (Mo.App.1930). A default judgment may be set aside for mistake, but neglect chargeable against the defaulting party cuts off the grounds of mistake. Hamm v. Hamm, supra, at 453-454; Distefano v. Kansas City Southern Ry. Co., 501 S.W.2d 551, 552-553 (Mo.App.1973). We are unable to set aside this judgment on the basis of mistake because appellant’s misunderstanding resulted in large part, from its own inattention or neglect. If appellant lacked knowledge of the suit against it, this ignorance was caused by the failure of the branch office to notify the main office of . the service of process. Since appellant has not alleged that the branch office was not appellant’s agent, the office’s neglect is chargeable to appellant, and appellant has failed to sustain the burden of proving that it is not chargeable with neglect.

Since the appellant’s petition does not allege facts indicating clear and convincing evidence of a good excuse for appellant’s default, we are unable to find the trial court’s dismissal of plaintiff’s petition an abuse of discretion and therefore affirm its decision.

The judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.

      . Sheriff Hoeh was also a named defendant.