author: McCLOUD, Chief Justice.

text:
    C. E. BOYD, Jr., et al., Appellants, v. F. O. WELCH et al., Appellees.
    No. 4911.
    Court of Civil Appeals of Texas, Eastland.
    June 24, 1976.
    Rehearing Denied July 12, 1976.
    David Brooks and Rodney W. Satter-white, Stubbeman, McRae, Sealy, Laughlin & Browder, Midland, for appellants.

      Temple Dickson, Mays, Moore, Dickson & Roberts, Sweetwater, for appellees.
   McCLOUD, Chief Justice.

This is a deed construction case. Plaintiffs, C. E. Boyd, Jr. and his former wife, Clara Boyd Stuckey, sued F. 0. Welch seeking a declaratory judgment that Welch owned no interests in certain minerals he was claiming under a deed from plaintiffs to Welch. The trial court determined that the deed was ambiguous and permitted extrinsic evidence as to the intent of the parties. The jury found in favor of Welch and the grantors, C. E. Boyd, Jr. and Clara Boyd Stuckey, have appealed. We affirm.

The deed in question dated October 11, 1966, provides in part:

“We, C. E. BOYD, JR., and wife, CLARA MAE BOYD, of Midland, Midland County, Texas hereinafter called ‘Grantors’, for and in consideration of ten dollars ($10.00) and other good and valuable consideration, the receipt of all of which is hereby acknowledged, do hereby bargain, sell, transfer, assign and convey unto F. 0. WELCH, hereinafter called ‘Grantee’, an undivided one-half (½) of our interest in the oil, gas, royalties and other minerals that may be lying on, in or under, and that may be produced from the following described land in Nolan and Taylor Counties, to wit:
A. The south one-half (S/2) and the northeast quarter (NE/4) of Section 1, Block ‘X’, T & P Ry. Co. Survey, in Nolan County, Texas;
B. The west one-half (W/2) of Section 58, the west 120 acres of the northwest quarter (NW/4) of Section 59, Block 5, T & P Ry. Co. Survey, in Nolan County, Texas;
C. The east one-half (E/2) of Section 3, and all of Section 4, in Block 6, T & P Ry. Co. Survey, in Nolan County, Texas;
D. Section 60, Section 64, the south one-half (S/2) of Section 61, Section 70, Section 71 and Section 72, except the J. R. Coomer and Homer Tye Lands all in Block 20, T & P Ry. Co. Survey, Nolan County, Texas;
E.Section 68, Block 19, T & P Ry. Co. Survey, in Nolan County and Taylor County, Texas,
together with the rights of ingress and egress at all times for the purpose of mining, drilling, exploring, operating and developing said lands for oil, gas and other minerals, and storing, handling, transporting and marketing the same therefrom.
This sale is made subject to any rights now existing to any lessee or assignee under any valid and subsisting oil and gas lease heretofore executed and now of legal record; it being understood and agreed that the Grantee shall have, receive and enjoy the herein granted undivided interest in and to all bonuses, rents, royalties, and other benefits which may accrue hereunder from and after the date hereof, precisely as if the Grantee herein had been at the date of making said lease and/or leases the owner of a similar undivided interest in and to the lands above described and none other, and Grantee one of the lessors therein.
The Grantors herein warrant and represent to the Grantee that by this conveyance they have conveyed to him a minimum of an undivided four hundred (400) mineral or royalty acres under the above described land and if on examination of title, it is determined that this conveyance covers less than 400 mineral or royalty acres under the above described land, the Grantors will execute such additional conveyances or issuances to accomplish the same.
IT IS UNDERSTOOD AND AGREED, and herein expressly stipulated that there is conveyed by this instrument an undivided one-half (¾) interest of the Grantors’ interests in the life estate in the minerals now owned by Ruth Boyd, of which, at her death, one-half (½) passes to the Grantors herein.” (Emphasis added)

On October 11, 1966, C. E. Boyd, Jr. owned a remainder interest and Ruth Boyd a life estate in minerals in lands other than those tracts specifically described in the deed under consideration. Grantors contend the deed conveys an interest only in the tracts specifically described in the deed. Grantee argues the deed grants a one-half interest in grantor’s remainder interest in all lands in which Ruth Boyd owned a life estate.

The jury found it was mutually intended and agreed between grantors and grantee that the deed would “cover and convey an undivided one-half (V2) of C. E. Boyd, Jr.’s remainder interest in the other property in which Boyd had a remainder and in which Ruth Boyd had a life estate, as well as the property described by section and block in the first paragraph of the deed in question.”

Grantors contend the court erred in submitting the issue inquiring as to the intent of the parties because the deed is unambiguous and conveys a mineral interest only in the land specifically described.

In the two paragraphs immediately following the specific description, the deed refers three times to the above described land. This reference does not appear in the clause regarding the life estate of Ruth Boyd and the grantors’ remainder interest.

The deed is reasonably susceptible to more than one meaning and is ambiguous. Trinity Universal Insurance Company v. Ponsford Brothers, 423 S.W.2d 571 (Tex.1968); Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951); Skelly Oil Company v. Archer, 163 Tex. 336, 356 S.W.2d 774 (1961). The court properly admitted evidence to show the intent of the parties.

Taylor v. Berlin, 327 S.W.2d 793 (Tex.Civ.App.—San Antonio 1959, writ ref. n. r. e.), cited by grantors, is distinguishable. There, no contention was made that the deed was ambiguous.

In view of our holding, it is not necessary to discuss the reformation points urged by the parties.

Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    Louis Franklin PERRITTE, Appellant, v. Laverne P. BIRDWELL, Appellee.
    No. 952.
    Court of Civil Appeals of Texas, Tyler.
    July 8, 1976.
    Rehearing Denied July 29, 1976.
    Marion G. Holt, Holt, Tatum & Meehan, Nacogdoches, for appellant.
    Thad Floyd, Stripling & Sutton, Nacogdo-ches, for appellee.
   DUNAGAN, Chief Justice.

This is a will contest which was heard in the 145th Judicial District Court of Nacog-doches, Texas. The case arose when competing applications for probate of two wills were filed in the County Court of Nacogdo-ches County, Texas. On September 10, 1974, Mrs. Clara P. White, the sister of the testator, Lewis F. Perritte, filed an application to probate a will, as a muniment of title, dated July 20, 1967, which purported to be the last will and testament of Lewis F. Perritte. On the same date Mr. Louis Perritte, a nephew of the testator and appellant herein, filed an application for probate of a will dated August 5, 1974, also purporting to be the last will and testament of Lewis F. Perritte. This will, hereafter referred to as the second will, did not contain a self-proving clause. On September 16, 1974, Mr. Louis Perritte filed a contest of the will dated July 20, 1967, contending therein that said will was revoked by the second will dated August 5, 1974. Subsequently the two competing applications were transferred to the 145th Judicial District Court by agreement of the parties. Upon motion of Mrs. Clara P. White, the two cases were consolidated by said Court. Mrs. Clara P. White died before the trial of the case leaving Láveme P. Birdwell, a daughter, as her sole heir and the executrix of her estate.

Thereafter, Láveme P. Birdwell filed a second amended petition for probate of will whereby she brought forward the original application to probate the will dated July 20, 1967, and whereby she asked to have herself appointed administratrix with the will annexed of the estate of Lewis F. Per-ritte. Said second amended petition also contained a contest of the second will.

The case was tried to a jury. After both parties had presented their evidence, the appellee, Láveme P. Birdwell, presented her motion for instructed verdict. After considering same, the Court withdrew the case from the jury and granted judgment in favor of Mrs. Birdwell. In the judgment the Court found that the will dated July 20, 1967, the first will, was in all things valid and admitted the same as the last will and testament of Lewis F. Perritte, deceased. The Court further found that Láveme P. Birdwell was in every manner qualified and thus appointed her administratrix with will annexed of the estate of Lewis F. Perritte, deceased. Finally, the Trial Court found in its judgment that the tendered proof of the second will did not meet the statutory requirements of a valid will, and thus held that said will should not be permitted to probate for any reason and should be held for naught. It is from this judgment that the appellant, Louis Perritte, brings this appeal.

Appellant by his sole point of error asserts that the “trial court” erred “in granting the appellee’s motion for directed verdict.”

Since the cause of action was withdrawn from the consideration of the jury, under the well established rule we must view the evidence in the light most favorable to the losing party, and must indulge against the Court’s action every inference that may properly be drawn from the evidence. Kingsley v. Western Natural Gas Company, 393 S.W.2d 345, 351 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.); Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); Jones v. Nafco Oil & Gas, Inc., 380 S.W.2d 570, 574 (Tex.1964).

Texas Probate Code Ann., sec. 59, in part, requires “Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be attested by two (2) or more credible witnesses above the age of fourteen (14) years who shall subscribe their names thereto in their own handwriting in the presence of the testator. * * * ” (Emphasis ours.)

The instrument of August 5, 1974, was not handwritten. Therefore, in order to be proved as the will of Lewis F. Per-ritte, it must have been attested by two or more credible witnesses above the age of 14 years, subscribing their names thereto in their own handwriting in the presence of the testator. Not having been attested by two or more credible witnesses in the presence of the testator, the second will is not valid. In re Estate of Pettengill, 508 S.W.2d 463, 465 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.); Buchanan v. Thrasher, 387 S.W.2d 950 (Tex.Civ.App.—Austin 1965, writ ref’d n. r. e.) and sec. 59, Texas Probate Code Ann. There is evidence that Pamela Smith did sign the instrument as a witness in her own handwriting and in the presence of the testator; however, there is no credible evidence whatsoever that the other alleged witness, Mr. Bill McCray, Jr., ever signed the instrument in the presence of the testator as required. Mrs. Pamela Smith testified that she was present and saw the testator, Lewis F. Perritte, sign the second will but that Mr. McCray was not present and did not witness Mr. Perritte’s signature. Mr. McCray did not testify. We do not find any credible evidence that two witnesses subscribed or attested to the second will of Lewis F. Perritte, dated August 5, 1974, in the presence of the testator as required by Texas Probate Code Ann., sec. 59.

Since the second will was not wholly in the handwriting of the testator and in the absence of any competent evidence that said will was subscribed to or attested by two witnesses in the presence of the testator, it has not been shown that the will in question was executed in the manner prescribed by law. Since the second will was not properly witnessed, it cannot be effective as a valid will. In re Estate of Pettengill, supra; Buchanan v. Thrasher, supra.

For the reasons above stated, the judgment of the trial court is affirmed.


author: HALL, Justice.

text:
    Lillian M. HURLBURT, Appellant, v. The PLANTERS NATIONAL BANK & TRUST CO., as guardian of the person and estate of George Warren Wallace, Appellee.
    No. 5592.
    Court of Civil Appeals of Texas, Waco.
    July 15, 1976.
    Rehearing Denied Aug. 5, 1976.

      Sherwin Winniford, Haley, Fulbright, Winniford, Bice & Davis, Waco, for appellant.
    W. V. Dunnam, Jr., Dunnam, Dunnam & Dunnam, Waco, for appellees.
   HALL, Justice.

This suit was brought under the Texas wrongful death statutes, Article 4671 et seq., Vernon’s Tex.Civ.St., on behalf of George Warren Wallace, a minor, to recover damages suffered by him as the result of the death of his father and mother in a collision in July, 1965, between vehicles being driven in opposite directions on a two-lane highway by the minor’s father and the defendant, Lillian M. Hurlburt. The minor and his mother were passengers in the vehicle driven by his father.

Trial was to a jury which found the defendant committed several acts of negligence which proximately caused the collision, found the minor’s father “failed to keep his vehicle completely within the right half of the roadway” and that this failure was a proximate cause of the collision, and awarded the minor damages totaling $225,-000. The defendant contends the findings against the father preclude a recovery by the minor, and that in any event the award of damages is excessive by at least $100,000. We affirm the judgment.

Article 4672, Vernon’s Tex.Civ.St., provides in effect that an action may not be successfully maintained by the beneficiaries under our wrongful death statutes where the decedent could not have recovered damages if he had survived his injuries. Schwing v. Bluebonnet Express, Inc., (Tex.Sup., 1973) 489 S.W.2d 279, 280. Citing this article, the defendant says the jury’s findings against the father defeat a recovery by the minor for the death of his father. We disagree.

The evidence shows that at the time of the accident the front of the vehicle driven by the minor’s father was partially across the center of the roadway, as found by the jury. However, there is also proof that the reason for this crossover was an attempt by the father to avoid collision with the defendant’s car which was moving toward and into the father’s lane.

The failure of the father to keep his vehicle completely within the right half of the two-lane highway was a violation of Article 6701d, §§ 52 and 53, Vernon’s Tex. Civ.St., which is penal in nature. The unexcused violation of a penal standard constitutes negligence per se. But where as here the evidence raises a question of fact as to a legally acceptable excuse for the violation, the burden is on the opposite party to obtain a finding that the offender was guilty of negligence measured by the common law standard before he can be charged with negligence in connection with the violation. Southern Pacific Company v. Castro (Tex.Sup., 1973) 493 S.W.2d 491, 497; Sparkman v. Maxwell (Tex.Sup., 1975) 519 S.W.2d 852, 857. The defendant did not obtain a finding of common law negligence against the father in this case.

The first point of error is overruled.

The jury awarded the following damages to the minor: $75,000 for nurture, care, and education he would have received during his minority from his mother; $50,000 for pecuniary contributions and services he would have received from his mother; $50,-000 for nurture, care, and education he would have received during his minority from his father; and $50,000 for pecuniary contributions and services he would have received from his father.

The minor was 14 months old at the time of the collision. His mother and father were killed instantly. He was their only child. The mother was 24 years of age with a life expectancy of 49 years. The father was 25 years of age with a life expectancy of 45 years. All were in good health. The mother and father were religious, temperate, and thrifty. She was a housewife. He was a first lieutenant in the United States Air Force. His pay and allowances totaled $800 per month. He was intelligent and “quick-minded.” He was in a training program which would have entitled him to flight pay and would have increased his earnings. They were doting parents, generous with their time and expenditures for their son. “He was their world,” a witness said.

This evidence supports the damages allowed.

Specifically, multiplying $800 X 12 months X 20 years to reach an alleged total earning by the father of $192,000 during the child’s minority, the defendant argues it is unreasonable to assume the parents would have contributed more than one-third of this income ($64,000) to the child and that the award of $100,000 for contributions is accordingly excessive.

It is not unreasonable to assume the father would have advanced in rank and pay during his career with the Air Force. Also, the two $50,000 awards complained about include compensation for lost services the minor would have received from his mother and father as well as lost pecuniary contributions. These awards are not excessive.

The second point of error is overruled.

The judgment is affirmed.


text:
    In re ESTATE of Barney Victor WILSON, Deceased.
    No. 5586.
    Court of Civil Appeals of Texas, Waco.
    July 22, 1976.
    Rehearing Denied Aug. 5, 1976.

      Andress, Woodgate & Lodewick, Dallas, for appellant.
   HALL, Justice.

After a hearing without a jury, the trial court determined a letter written by Barney Victor Wilson, now deceased, is not testamentary in nature. Solely upon that ground, the court denied the appellant’s application for probate of the letter as the deceased’s will. We affirm this ruling.

The letter was written to the appellant and was mailed to her at her home in Dallas from the deceased in San Francisco. It is dated May 22, 1971, and reads as follows: Dear Dorothy:

I do not know if this letter will ever reach you — but let’s hope so.
Either the last of June or early part of July I will undergo major surgery at the Veterans Administration Hospital, “Fort Riley,” here in San Francisco. I am at present in the Hospital but was give a few days “pass” to handle some pressing business.
Dorothy, I don’t have a large amount of money but I do have more than I thought I ever would — what I am trying to say is that I don’t want my money to go the State of Calif, because I do not have any heirs and as for blood relations I don’t have-not any heirs.
Now all I want you to do is send me your legal name which I do not know-— such as Dorothy Lucille Tarver or whatever is correct — I will need this for a “will” — you can also be assured my will as filed will need an address of yours where you can be located in the future— you move around so much no one but the F.B.I. could find you.
Love,
B. V.

Barney Victor Wilson died on May 6, 1975. He was 66 years of age. He is not survived by any relative. Other than the letter in question, he did not execute any instrument which is purportedly a will. The deceased and the appellant were married and divorced prior to the time of the writing of the letter. At the time it was written, they were contemplating remarriage. Later, they did remarry in Dallas County. This marriage was later annulled, but they continued frequent contact with each other. When called upon to do so, such as when entering a hospital, the deceased would name the appellant as the person to be notified in the event he died. When he was found dead in a rented apartment, there was a note in his billfold to notify the appellant in the event of his death or disability. This was done, and she took charge of his burial and his effects.

An essential to the testamentary character of a writing is the intent of the writer to make a posthumous disposition of his property by that very instrument. Price v. Huntsman, 430 S.W.2d 831, 833 (Tex.Civ.App.—Waco, 1968, writ ref., n. r. e.). There is no expression in the letter in question that it should operate as a disposition of the deceased’s property. At most, it expresses an intent on his part to make a will in the future in favor of the appellant. This language lacks testamentary intent. It does not constitute a will. Hinson v. Hinson, 154 Tex. 561, 280 S.W.2d 731, 733 (1955); Caywood v. Caywood, 216 S.W.2d 821, 823 (Tex.Civ.App.—Waco, 1949, writ ref.).

The judgment is affirmed.


author: PALMORE, Justice.

text:
    Lee LAWLESS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 19, 1976.
    Rehearing Denied Aug. 20, 1976.
    Jack E. Farley, Public Defender, Anna H. Isaacs, Asst. Public Defender, Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., Robert Hensley, Asst. Atty. Gen., Frankfort, for appel-lee.
   PALMORE, Justice.

Prior to his indictment the appellant sought an order requiring that the proceedings of the grand jury pertaining to his case be recorded and transcribed at his expense and be made available to him. He claims reversible error in the trial court’s refusal to grant such an order.

RCr 5.16 provides that the attorney for the Commonwealth may elect to record testimony heard by the grand jury, and that if he does so the accused may obtain a transcript of any portion relating to the charge against him. It does not give a similar option to a prospective indictee.

We are not aware of any constitutional principle to the effect that the prosecution and the accused must be on “equal footing” with regard to the making and preservation of a record of proceedings in the grand jury. The grand jury is an accuser, not a trier. If a prospective defendant had the same right of access to what is said or done in its presence as the law gives to the prosecuting attorney, we see no logical basis on which the defendant and his counsel could be excluded from its hearings, where they could see and hear for themselves, and even exercise the right of confrontation and cross-examination. Inch by inch, that is the destination of the path to which the appellant’s argument in this case leads. It ignores the nature and function of the grand jury, and we decline to enter upon it.

Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1970), dealing with notice-of-alibi rules and reciprocal discovery, bears no analogy to the proceedings of a grand jury.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    ELKHORN-HAZARD COAL LAND CORPORATION, Appellant, v. James TAYLOR et al., Appellees.
    Supreme Court of Kentucky.
    May 28, 1976.

      Armer H. Mahan, Davis & Mahan, Louisville, for appellant.
    Grayson Johnson, Hindman, James D. Asher, Polly, Craft & Asher, Whitesburg, William F. Gadd, Dept, of Labor, Ed W. Hancock, Atty. Gen., Thomas A. Ainley, Asst. Atty. Gen., William L. Huffman, Dept, of Labor, Frankfort, for appellees.
   PER CURIAM.

This appeal requires an interpretation of KRS 342.610(2), which provides:

“A contractor who subcontracts all or any part of a contract and his carrier shall be liable for the payment of compensation to the employes of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured the payment of compensation as provided for in this chapter. Any contractor or his carrier who shall become liable for such compensation may recover the amount of such compensation paid and necessary expenses from the subcontractor primarily liable therefor. A person who contracts with another (a) to have work performed consisting of the removal, excavation or drilling of soil, rock or mineral, or the cutting or removal of timber from land, or (b) to have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation or profession of such person, shall for the purposes of this section be deemed a contractor, and such other person a subcontractor. This subsection shall not apply to the owner or lessee of land principally used for agriculture." (Emphasis added)

The appellant, Elkhorn-Hazard Coal Land Corporation, hereinafter referred to as Elk-horn-Hazard, entered into a written contract with Melvin Banks, doing business as M & A Coal Company, whereby Elkhorn-Hazard leased to M & A Coal Company for a period of three years the right to mine all of the Hazard No. 4 coal in a parcel of land in Letcher County, Kentucky.

M & A Coal Company was required to pay a minimum royalty of $100 per month plus a tonnage royalty of 45 cents per ton ascertained according to ramp or railroad weight. Lessor’s engineers were to calculate periodically the amount of tonnage removed and in the event the weight reported by lessee did not check within five percent of the calculations of the engineers payment of the tonnage royalty was to be made according to the calculations of the engineers.

M & A Coal Company was prohibited from marketing coal from the mine under more than one name, agreed to have the purchaser deduct the tonnage royalty from the purchase price of the coal and to make the check therefor payable directly to the Elkhorn-Hazard; and M & A further agreed to (1) begin work upon the lease immediately and to operate the mine in such a manner as to ultimately recover the greatest possible amount of coal, and (2) to weigh all coal removed from leased premises at a ramp or tipple operated by Carr Creek Fuel Company or the Sugar Branch Coal Company.

The president and principal stockholder of the lessor, Elkhorn-Hazard Coal Land Corporation, was also the president and principal stockholder of both the Carr Creek Fuel Company and the Sugar Branch Coal Company.

In the event of the failure of the Lessee to have the coal weighed at the facilities of the designated companies the tonnage royalty was increased to ten percent of the sales price of the coal but in no event less than 55 cents per ton.

The appellee James Taylor was an employee of the M & A Coal Company. He became completely disabled by reason of pneumoconiosis. His last employment was with M & A Coal Company but his disability could not be attributed solely to that employment.

M & A Coal Company did not carry workmen’s compensation insurance and Taylor filed his claim for compensation naming the M & A Coal Company, the Uninsured Employers Fund and the Special Fund as defendants.

The Workmen’s Compensation Board sustained a motion to dismiss the Uninsured Employers Fund and to make Elkhom-Haz-ard a party defendant on the theory that Elkhorn-Hazard was an insured employer who was “deemed” to be a contractor pursuant to KRS 342.610(2) because the lease (1) was a contract with another to have work performed consisting of the removal of minerals and (2) the lease constituted a contract to have work performed of a kind which is a regular or recurrent part of the work of the trade or business of the lessor.

The Board awarded Taylor compensation for total and permanent disability to be apportioned between the Special Fund and Elkhorn-Hazard. Elkhorn-Hazard petitioned for review and the circuit court affirmed the award. Elkhorn-Hazard prosecutes this appeal.

The group of workers comprised in the common law definition of “employees” does not always coincide with the group of workers who, as a matter of economic fact, need the protection of workmen’s compensation insurance. Larson’s Workmen’s Compensation Law, Volume 1A, § 49.21.

When an owner has work performed by an independent contractor the employees of the independent contractor are not employees of the owner and ordinarily the owner has no workmen’s compensation liability for job-related disability. Bright v. Reynolds Metals Company, Ky., 490 S.E.2d 474 (1973). Likewise the employees of a subcontractor are not the employees of the contractor.

To discourage owners and contractors from hiring financially irresponsible contractors and subcontractors the Workmen’s Compensation statutes in a number of states, in one way or another, have extended coverage to workers who are not actually employees of the person ultimately made liable for the payment of compensation awards.

Forty-one states, including Kentucky, have enacted some version of a contractor-under statute which places liability upon a contractor for payment of workmen’s compensation awards to the employees of a subcontractor if the subcontractor fails to provide coverage under the act. KRS 342.-610(2); Larson’s Workmen’s Compensation Law, Volume 1A, § 49.11.

Several states have also adopted provisions by which a person is deemed to be a contractor if he contracts to have work done of a kind which is a regular part of his trade, business, occupation or profession. KRS 342.610(2) contains such a provision and adds an additional situation in which a contractor-subcontractor relationship is deemed to exist, namely when there is a contract to have work performed consisting of the removal, excavation, or drilling of soil, rock or mineral or the cutting or removal of timber from land.

The provisions of KRS 342.610(2) setting forth conditions in which a person may be deemed a contractor are limited in application to persons who contract with another to have work performed for them by the other person. The question in issue in this case is whether the lease executed by Elk-horn-Hazard and M & A Coal Company can be said to constitute a contract to have work performed by M & A Coal Company for Elkhorn-Hazard.

In some cases where a business is conducted through the use of leased property as a marketing outlet the lessor is held liable to the employees of the lessee for workmen’s compensation benefits. Continental Oil Company v. Sirhall, 122 Colo. 332, 222 P.2d 612 (1950). An employee of the Sid Katz, Inc., a shoe company, which leased space in a department store sued the department store in tort and the department store successfully defended upon the grounds that the employee of the lessee shoe company was the statutory employee of the department store whose recovery was limited to workmen’s compensation. Schmolke v. Krauss Co., La.App., 217 So.2d 789 (1969).

In Shell Oil Company v. Leftwich, 212 Va. 715, 187 S.E.2d 162 (1972) the Supreme Court of Virginia held that the employees of a gasoline service station operated under lease from Shell Oil Company were not statutory employees of the Shell Oil Company.

In this case however there is no lease of premises to be used as a marketing outlet and aside from a provision in its articles of incorporation listing mining as one of its many business purposes there is no evidence in the record upon which it could be concluded reasonably that Elkhorn-Hazard has actually engaged in the business of mining.

There is no basis in the record for a conclusion that Elkhorn-Hazard was conducting a mining business through the use of a lease or that it was conducting any work through the use of a lease which was a regular part of its business operations and which normally would have been accomplished through the use of its own employees.

It does not appear to us that the lease can be construed as a contract to have work done for Elkhorn-Hazard. The work performed by M & A Coal Company was done for itself in a proprietary capacity. M & A Coal Company was mining the coal for its own use and not for Elkhorn-Hazard. Under the lease in question M & A Coal Company alone benefited from increases in the market price of coal or from efficiencies in operation. Likewise M & A alone bore the loss of decreased prices or inefficient operation.

If this were a sale of the coal in place to M & A Coal Company we do not think it could be contended successfully that the seller has an obligation to provide workmen’s compensation coverage for the employees of the purchaser engaged in the mining of the coal. Although this lease cannot technically be construed to be a sale of the coal deposit in place the ownership of that part of the coal deposit actually separated from the surface and mined was transferred from the lessor to the lessee. This fact strengthens the conclusion that M & A Coal Company was not performing work for Elkhorn-Hazard under the lease.

There is no showing in the record that the lease arrangement resulted in a payment to M & A Coal Company of a price less than the true market value or price of the coal. Consequently we do not regard it as a matter of controlling importance that the lease required the coal to be weighed at the tipple of corporations controlled by the president of Elkhorn-Hazard.

The judgment is reversed insofar as it allows recovery against Elkhorn-Hazard with direction that a new judgment be entered dismissing the claim against Elkhorn-Hazard.

All concur.


author: HOLMAN, Judge. SEILER, Chief Justice

text:
    STATE of Missouri, Respondent, v. Donald Lee KELLY, Appellant.
    No. 59298.
    Supreme Court of Missouri, En Banc.
    July 12, 1976.

      Ronald M. Sokol, Public Defender, Joe H. Scott, Asst. Public Defender, St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., by Paul R. Otto, Asst. Atty. Gen., for respondent.
   HOLMAN, Judge.

Appellant, Donald Lee Kelly (hereinafter referred to as defendant), was charged with the offense of robbery in the first degree. See Sections 560.120 and 560.135, RSMo 1969 V.A.M.S. Upon trial he was found guilty. The jury being unable to agree on punishment such was fixed by the trial judge at imprisonment for a term of 40 years. Defendant appealed to the Kansas City District of the Court of Appeals. That court adopted an opinion which reversed the judgment and remanded the case for a new trial. Upon application of respondent we ordered the case transferred to this court. It will be finally determined here the same as on original appeal. Art. V, Sec. 10, Mo.Const. We affirm.

Since defendant makes the contention upon this appeal that the evidence was insufficient to support the conviction we will state the facts in some detail. Mary Rei-nert and Juanita Smith were sharing an apartment in St. Joseph, Missouri, on December 26, 1973. They both worked as nurses at a nearby hospital. At 3:10 a. m. on that date, Mary was awakened by a loud noise coming from the direction of the front door of their apartment. After calling to Juanita, who was asleep in a nearby bedroom, and ascertaining that she did not make the noise, Mary went into the living room to investigate. She saw a man in the living room and was immediately struck upon the head and knocked to the floor. The man then hit her repeatedly with some sort of stick or other instrument. Juanita also came into the living room and was beaten repeatedly by the assailant. It was stipulated by the parties that both Miss Reinert and Miss Smith “took terrific beatings on the head and upper portions of their bodies.” After the beatings had continued for a time, Miss Smith stated, “My God, if it is money you want, quit beating us. We will give it to you.” The assailant then took the women to the bedrooms and obtained their purses. After he left it was determined that he had taken approximately $26 from the purse of Miss Reinert and also a red plastic case which contained a religious medal and a silver dollar. Seventy-five dollars was taken from Miss Smith’s purse.

Because of the insufficient light and blood that accumulated in the eyes of the victims, they were not able to identify the defendant at the trial and provided police with only a general description of their attacker. They stated that he was a black male with a goatee and was approximately 5'7" tall and weighed somewhere between 140 and 165 pounds. They stated that he had on a dark colored jacket. When the police arrived, they found that the intruder had entered the apartment by breaking the glass in the front door. The two women were sent to the hospital where they were treated, operated upon, and confined for a considerable length of time. Miss Smith was not able to return to work for more than three months.

At 3:55 o’clock on that morning defendant awakened Wayne Wilson at the home of Pat Jennings where Wayne was staying with his girl friend, Sally Painter. When Wayne let defendant into the house, he saw that defendant was wearing a brown corduroy coat which was covered with blood. Defendant told Wayne that two men had jumped on him. At that time, defendant also showed Wilson a roll of bills, and they then went into a bedroom occupied by Sally Painter and defendant showed them a red case which contained a silver dollar and a religious medal. Defendant spent the remainder of the night in the next bedroom and at about 8:00 a. m. Sally observed him tearing up his corduroy coat. He had also been observed sleeping in that bedroom by Pat Jennings.

On December 28 the police found two pieces of a partially burned brown corduroy coat, which were spotted with blood, in the trash can located in the back yard of the home of defendant’s mother which was not far from the Pat Jennings’ house. There was evidence that blood tests revealed that the blood stains on the coat were of the same type as Miss Reinert’s blood, and that a hair sample found on the coat was within the limits of variance to the hair of Juanita.

As a result of information obtained from the victims, who also viewed some photographs, a number of Negro males were questioned by the police. These included defendant and Wayne Wilson. In questioning Wayne Wilson the police obtained the information heretofore stated.

The defense of the defendant was based upon alibi and also upon the contention that Wayne Wilson was the guilty person. In his testimony, defendant denied any guilt. Defendant testified that he had shaved off his goatee on Christmas morning; that he had stayed home all that day but had gone to a tavern where his half-brother worked at about 8:30 p. m.; that he stayed at the tavern until it closed about 1:30 a. m. and left with his brother, Stanford Davis, and after visiting with him across the street for a short time went on home. He further testified that he was intoxicated when he left the tavern; that he is 5'5" tall and weighed 130 pounds; that Wayne Wilson is his cousin; that the only corduroy coat he owned was at Leron May’s house at the time in question; that on the night here involved, he had worn a white trench coat; that his father and mother were both ill and he did not think they were able to appear at the trial. Other evidence may be stated in connection with some of the points briefed.

The first point briefed is that the evidence does not support the verdict because the money was taken with the consent of the owners. This point is so utterly devoid of merit that it hardly warrants discussion. It is obvious that the suggestion that defendant take the money was made in order to get him to stop the beatings. It is also reasonable to assume that the victims were acting under the belief that if defendant did not get the money he would again commence beating them. Under these circumstances the jury could reasonably find that the taking was accomplished by putting the victims “in fear of immediate injury to their person and by violence to their persons” as alleged in the information. State v. Stephens, 66 Ariz. 219, 186 P.2d 346[4] (1947). The case cited by defendant, State v. Wright, 337 Mo. 441, 85 S.W.2d 7 (1935) is clearly distinguishable because in that case there was evidence that the victim invited the robbery as a part of a plot to defraud his insurance company.

The second point in defendant’s brief is that “the evidence in the cause only circumstantially implicates appellant as the perpetrator of the crime, fails to do so beyond a reasonable doubt as a matter of law, and fails to exclude the reasonable theory of innocence that Wayne Wilson was the perpetrator of the crime and attempted to shift the blame therefor to appellant.” This contention is primarily a challenge to the weight of the evidence and the credibility of the State’s witnesses, Wayne Wilson and Sally Painter. The defendant appears to ignore certain well established rules of law that require a decision contrary to his contention. As stated in State v. Johnson, 510 S.W.2d 485, 487 (Mo.App.1974), “In determining the sufficiency of the evidence in a criminal case after a verdict of guilty, we accept as true all evidence in the record tending to prove the defendant guilty, whether such evidence is circumstantial or direct in nature, together with all favorable inferences that can reasonably be drawn therefrom. State v. Simmons, 494 S.W.2d 302, 303 (Mo.1973); State v. Reed, 453 S.W.2d 946, 949 (Mo.1970). It is not the function of this court to weigh the evidence; our review is limited to determining whether there was sufficient evidence from which reasonable persons could have found defendant guilty as charged.” When the evidence in the case before us is viewed in light of the quoted principles there can be no doubt but that a submissible case was made.

The next contention of defendant is that the court erred in admitting in evidence the partially burned pieces of a corduroy coat. The objection seems to be that the exhibit was not properly identified since it was not shown to the victims nor to Wayne Wilson or Sally Painter. It should be noted, however, that the pieces were similar to the bloody coat described by Wayne and Sally which defendant was wearing a short time after the robbery. Also, the evidence indicated that defendant had been seen tearing up his coat the morning of the robbery and these pieces were found in the garbage can on his mother’s property a short distance away. Moreover, the blood on the exhibit was of the same type as that of one of the victims and a hair found on it was similar to the hair characteristics of the other victim. All these facts and circumstances tend to indicate that the pieces were a part of the coat worn by defendant on the morning of the robbery. Those facts would make the exhibit relevant because it would tend to connect defendant with the offense. This court has held that the identification of an exhibit need not be wholly unqualified in order to make it admissible. See State v. Kern, 447 S.W.2d 571[3, 4] (Mo.1969). We have concluded that this exhibit was sufficiently identified and shown to be relevant in connecting defendant with the offense and hence was properly admitted.

Defendant also claims that the rulings of the trial court unduly limited his cross-examination of Wayne Wilson. An objection was sustained to this question: “Mr. Wilson, did you make a rather large purchase within the recent past?” The offer of proof was that he was attempting to impeach the credibility of the State’s witness by showing that he in fact has had large sums of money in the recent past with no honest means of coming by that money.

We rule that the court properly sustained an objection to the offer. It did not give any details and was not sufficiently specific to demonstrate any relevancy. Apparently defendant was attempting to cast suspicion upon Wilson as having been the robber. Such evidence is not admissible on that theory without proof that Wilson committed some act directly connecting him with the crime. Since there was no such proof the trial court ruled correctly in excluding the proffered testimony. State v. Umfrees, 433 S.W.2d 284[1, 4] (Mo.1968).

The court also sustained an objection to an offer of defendant to show by Wilson that he and Sally were living together in a common law husband and wife relationship. Defendant says such was error because that evidence would have impeached Sally’s credibility. It is said that she would testify against defendant in order to protect Wilson whom defendant argues committed the crime. In the absence of evidence directly connecting Wilson with the crime this testimony was properly excluded. Moreover, the defendant was not prejudiced by this ruling because other evidence of that nature was admitted. Wilson testified that he and Sally were occupying the same bedroom on the night of the robbery and Sally’s mother testified that Wilson and Sally were “supposed to get married.”

Defendant next contends that the court erred in admitting the testimony of Gary Howell of the Regional Crime Laboratory relating to the comparison of blood and hair samples taken from Exhibit 7 with certain other samples submitted to him. Our examination of the transcript indicates that the testimony complained of was admitted without objection and we accordingly rule that the alleged error was not preserved for appellate review. State v. Simmons, 500 S.W.2d 325[2, 3] (Mo.App.1973).

Sally Painter testified that the silver dollar defendant showed her on the morning of the robbery had a date on it of either 1819 or 1829. In an effort to impeach her testimony defendant produced Coin Collector’s Handbook by Fred Reinfeld and asked that the court take judicial notice of its contents which allegedly stated that no silver dollars were minted during the years in question. In refusing to take such notice the judge stated, “I know nothing about it.” Defendant claims that the court erred in so ruling.

We have concluded that said ruling was not erroneous. The book itself was not offered so the only question relates to judicial notice. There was no proof concerning the qualifications of the author nor as to the general acceptance of the book by the public. Certainly, this is not a matter within the general knowledge of the country. Moreover, “. . . the doctrine of judicial notice is not a hard and fast one but is one which must be tempered by judicial discretion, the Court not being bound to take judicial notice of matters of fact; and whether they will do so or not being dependent on the nature of the subject, the issue involved and the justice of the case. City of St. Louis v. Niehaus, 236 Mo. 8, 139 S.W. 450. . . . ‘This power is to be exercised by courts with caution. . . .’” Schilling v. Bi-State Development Agency, 414 S.W.2d 818, 826 (Mo.App.1967).

Defendant has cited cases such as State v. Graham, 322 S.W.2d 188 (Mo.App.1959); State v. Gantt, 504 S.W.2d 295 (Mo.App.1973) and State v. Biven, 151 S.W.2d 1114 (Mo.1941). These cases are readily distinguishable as they present various situations where the court has taken judicial notice of well known facts but none of them represent a situation where the court refused to take notice and such was held error. As indicated, this point is ruled adversely to defendant.

Next it is contended by defendant that the trial court erred in refusing his request that a hearing be held to determine the voluntariness of a statement made by defendant to an officer which was offered by the State as rebuttal testimony. We have concluded that the ruling of the court did not constitute prejudicial error.

Defendant testified that on the night in question he stayed at the tavern and was with his brother until about 1:45 a. m. or perhaps a little later and then he went home. On cross-examination he testified, without objection, as follows:

Q Now, you were questioned by the police in relationship to this case, were you not?
A Yes, I was.
Q And did you tell any member of the St. Joseph Police Department where you were staying on the early morning hours of December 26th of last year ’73?
A Yes, I did.
Q Who did you tell?
A I told Leo Schott.

Leo Schott was offered by the State as a rebuttal witness. He testified that he interviewed defendant and first advised him of his constitutional rights. At that time defendant requested the voluntariness hearing which was denied. The officer then testified to the following:

Q Mr. Schott, did the defendant Donald Lee Kelly make any statements to you concerning his whereabouts on the morning hours of the 26th of December, ’73?
A Yes.
Q All right. Can you tell us what the defendant told you about his whereabouts?
A Yes. I’m not sure which time it was, whether it was on the 26th or the morning of the 28th. He talked very little in regards to this, but he did mention that he was with a Stanford Davis some time after the tavern had closed on Messanie Street.
Q Detective Schott, did he make any other statements to you about his whereabouts?
A No; nothing specific at all that I can recall.

It should be noted at the outset that there is no contention that defendant in any manner confessed to this crime. The statement offered was intended by the State to negatively contradict defendant’s testimony. In other words, the State was attempting to show that defendant did not tell the officer all that he testified to at the trial. In that connection, we call attention to Section 546.260 V.A.M.S. which provides that a defendant may elect to testify but “shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case; . . . ” It should also be noted that at no time during the trial nor even in this court on appeal has defendant asserted that the statement to the officer was not voluntary.

We have the view that the request for a hearing came too late. As heretofore noted, the State, in its cross-examination of defendant, asked him specifically about his being questioned by Officer Schott and, without any objection or request for a vol-untariness hearing, defendant was permitted to testify as to the statement made at that time. If defendant considered the statement involuntary he should have requested a hearing then. He cannot permit his testimony to come in without objection, and then when a later effort is made to impeach same, request a hearing on the question of voluntariness. For analogous situations see State v. Henderson, 510 S.W.2d 813[14] (Mo.App.1974) and State v. Simmons, [2, 6], supra.

Additionally, we have concluded that the statement in question was not prejudicial to defendant. In endeavoring to lay a foundation for the impeachment the State had defendant testify that he told Officer Schott where he was staying on the early morning hours of December 26th. The impeaching testimony was that he told Schott that he was with his brother sometime after the tavern closed. When asked if defendant made any other statement concerning his whereabouts the officer answered, “No; nothing specific at all that I can recall.” The first part of the impeaching testimony is clearly consistent with defendant’s testimony and the second part is not actually inconsistent. Defendant had not been asked if he told the officer that he went home after leaving his brother nor was there any clear indication as what span of time was included in the phrase “early morning hours.” Such would not necessarily include the period following the time defendant left his brother. It should also be noted that the officer’s testimony about any additional statement was indefinite and rather equivocal.

For the reasons indicated we rule that the failure to hold the requested hearing did not constitute prejudicial or reversible error.

Defendant also contends that the court erred in admitting the impeaching testimony of Officer Schott because no proper foundation was laid therefor. “It is, of course, well settled that when a witness has testified to a material fact it is proper to admit evidence that he has previously made a statement relating to that fact which is inconsistent with his present testimony. A foundation must first be laid by asking the witness on cross-examination if he made the statement, and obtaining either a denial or an answer that he failed to remember it.” State v. Vaughn, 501 S.W.2d 839, 842 (Mo.1973). In this instance, on cross-examination, defendant’s attention was called to the matter and he admitted having the conversation with the officer although we have the view that the foundation question was not as specific as it should have been. However, we have heretofore held that Officer Schott’s testimony did not constitute prejudicial or reversible error and for that reason this contention is overruled.

Defendant presented as a witness Stanford Davis who testified that defendant came to the tavern at 11:00 a. m. on December 25, and remained there until about 1:45 a. m. on December 26. In rebuttal the State called Officer Pasley who testified that he had a telephone conversation with Stanford on December 28 and that Stanford stated that he hadn’t seen defendant in a long time. The court overruled defendant’s objection that the statement was hearsay and it is here contended that the ruling was erroneous because no foundation for impeachment was laid. We agree that the ruling was erroneous because of the failure of the State to ask Stanford about the conversation on cross-examination but we have the view that such did not constitute prejudicial or reversible error. In the first place the phrase “long time” is relative and might mean two days or two years. Also, Stanford’s testimony had already been contradicted by defendant’s testimony in that Stanford had stated that defendant came to the tavern on the 25th at 11:00 a. m. and was there the remainder of the day while defendant testified that he did not go to the tavern until 8:30 p. m. on that day. Furthermore, Stanford’s testimony did not provide any alibi for defendant as he stated that they parted at 1:45 a. m. or very shortly thereafter and the crime was committed at 3:10 a. m. There was really no controversy concerning the fact that defendant was at the tavern until it closed about 1:45 a. m. As indicated, we rule that this point does not warrant a reversal of the judgment.

Defendant also contends that he was denied a fair trial by the cumulative effect of the misquotations of evidence by the State during its argument and the State’s references to facts adduced in rebuttal as probative of its case in chief. In examining the motion for new trial we find that this point is complained of therein in the following manner:

“11. The Court erred in overruling defendant’s objections to misquotations of evidence by the State in its argument.
“12. Defendant was denied a fair trial by the cumulative effect of the distortions of evidence, and improper arguments of, the State.” Rule 27.20(a) provides that the specific grounds or causes for which a new trial is sought must be set forth in the motion in detail and with particularity. The assignments in question are too general and are not sufficient to meet the requirements of the rule. They do not specify the portions of the argument claimed to be improper nor develop in what manner they caused defendant to be prejudiced. We rule that they failed to preserve anything for appellate review. See State v. Mathews, 328 S.W.2d 642[5] (Mo.1959) and State v. Cooley, 387 S.W.2d 544[6] (Mo.1965).

The final contention is that the court erred in giving Instruction 5A at the time of submitting the case to the jury. That instruction reads as follows:

“If you unanimously find the defendant guilty you should fix his punishment. If, however, after due deliberation, you find the defendant guilty but are unable to agree upon his punishment, you will complete the verdict form so stating, and in that event the Court will fix the punishment.

“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, and if he is guilty to fix the punishment.”

This contention is obviously without merit. It was settled in State v. Brown, 443 S.W.2d 805[7] (Mo.1969) that the giving of that instruction at the time the judge charges the jury is permissible.

Judgment affirmed.

MORGAN, HENLEY, and FINCH, JJ., concur.

DONNELLY, J., concurs in result.

SEILER, C. J., dissents in separate dissenting opinion filed.

BARDGETT, J., dissents and concurs in separate dissenting opinion of SEILER, C. J.

SEILER, Chief Justice

(dissenting).

I respectfully dissent. I agree with the court of appeals, Kansas City district, in the opinion written by Dixon, J., that the trial court erred in denying defendant’s request for a hearing on the issue of voluntariness of defendant’s statement to a police officer offered to impeach defendant’s testimony.

As the court of appeals said, the facts bearing on this issue may be concisely stated. On direct examination, defendant described his activities on the night of the robbery, saying he was in a tavern and went home soon after it closed. The robbery occurred in the early morning about one and three-fourths hours after the tavern closed and therefore about one and one-half hours after defendant said he went home. On cross-examination, defendant said he told Officer Schott of his whereabouts and activities in the early morning hours after the tavern closed. The state called Officer Schott who testified in partial corroboration of defendant’s testimony, but who, on the vital issue, testified he did not recall defendant telling him where he went in those early morning hours. Thus, the actual impeachment consists of a denial that the defendant made the statement he claims to have made which was exculpatory and consistent with defendant’s testimony at trial.

The state treats this as if a prior inconsistent statement were in dispute, contending the issue is whether “a statement of a criminal defendant [is] admissible, without a hearing as to its voluntariness, when it is to be introduced as a prior inconsistent statement for the purpose of impeaching the defendant on a matter directly bearing on his guilt . . .”

The general rule in Missouri is that the state must prove the voluntariness of statements by a criminal defendant if it introduces the statements into evidence. State v. Monteer, 467 S.W.2d 48, 51 (Mo. banc 1971); State v. Thompson, 465 S.W.2d 590 (Mo.1971); State v. Auger, 434 S.W.2d 1 (Mo.1968). I see no reason why the state should be permitted to use prior statements of the defendant in rebuttal without first establishing their voluntariness any more than it can use prior statements of the defendant as a part of the main case of the state against defendant without first establishing voluntariness. Both are being used against the defendant, and if an involuntary confession is to be rejected as evidence because it is considered testimonially unreliable and untrustworthy, State v. Ussery, 357 Mo. 414, 208 S.W.2d 245 (1948), the same would be true of involuntary rebuttal statements. Although the majority opinion states that defendant has at no time asserted that the statement to the officer was not voluntary, the opposite seems to me to be the case, because defendant did bring vol-untariness into question by objecting to the admission of the testimony of the police officer and by requesting the hearing. The request was overruled, but defendant did all that could be done to raise the issue. Once the issue is raised, the reliability and, thus, the admissibility of the evidence is in doubt and the burden of proof of voluntariness is upon the state, State v. Hunter, 456 S.W.2d 314 (Mo.1970); State v. Garrett, 510 S.W.2d 853 (Mo.App.1974).

I do not see how § 546.260, RSMo 1969, the statute referred to in the principal opinion, meets this issue. The statute simply restates the common notion that if a defendant takes the stand on his own behalf, the state may cross-examine and attempt to impeach him. The statute does not authorize impeachment which would violate defendant’s right to a fair trial. There can be no fair trial where unreliable evidence is introduced.

The majority opinion takes the position that the request for a hearing came too late, that defendant had already waived any question of voluntariness by not asking for a hearing when he was cross-examined about what he told Officer Schott. No one, either in the court of appeals, or in this court, or among counsel on either side, has been able to find a case closely in point, but the majority opinion refers to State v. Henderson, 510 S.W.2d 813[4] (Mo.App.1974) and State v. Simmons, 494 S.W.2d 302[2, 6] (Mo.1973) as being analogous situations. The Henderson case involved waiver of the right not to have the police testify as to defendant’s refusal to permit a search of his bedroom and the Simmons case involved waiver by failure to object to an improper question until after the answer was given. The doctrine of waiver, of course, runs all through the law and is found in criminal as well as in civil cases. But it is universally held that for waiver to exist there must be an intentional or voluntary relinquishment of a known right or conduct such as warrants an inference of the relinquishment of a known right. 92 C.J.S. Waiver p. 1041.

In the case before us I do not believe it follows from defendant’s having testified on cross-examination without objection to what he said he told Officer Schott that defendant thereby conceded the voluntariness of whatever statement Officer Schott might attribute to him. Defendant, of course, knew what he claimed he told Schott and knew that it was exculpatory. Obviously he considered it voluntary. Defendant, however, had no way of knowing what Schott was going to testify that defendant said or did not say. At this stage of the trial, defendant’s guilt or innocence had not yet been determined. He was still clothed with the presumption of innocence. It remained to be decided whether what defendant said or what Schott said was to be believed. It seems to me that defendant’s own testimony on cross-examination amounts to no more than an assertion of the reliability of what defendant said he told Schott; I see no implied or concurrent vouching thereby'on the part of the defendant for the reliability or voluntariness of what Schott said defendant said, nor do I see any waiver thereby on the part of defendant as to the question of voluntariness of a statement which is to be attributed to him by Officer Schott (not testified to by defendant himself) and which clearly is going to be radically different from what defendant testified to, as it is being offered against defendant by the state. Because defendant testifies to facts A, B, and C, it does not follow that defendant thereby waives the question of voluntariness of an admission or inconsistent statement attributed to him by another witness who testifies that defendant did not say A, B, and C, but instead said X, Y, and Z, facts completely opposite. If, as I maintain, defendant in the case before us did not waive the question of voluntariness of the alleged rebuttal statement used against him, then there should have been a hearing on the voluntariness of the statement and a finding by the court that it was voluntary, if so, before it was heard by the jury. We should not be less careful that statements used in rebuttal are voluntary than we are that statements used against defendant as a part of the state’s direct case are voluntary. Oftentimes, rebuttal testimony is critical to the outcome of a particular case.

I gather from the fact that the principal opinion relies upon waiver that in the absence of such waiver there would have to be a hearing on voluntariness of the statement purportedly made by defendant to the police and sought to be used against him in rebuttal. As said, I do not find any waiver on the part of defendant in this case. Actually, even had defendant asked for a hearing on voluntariness at the time the question was first put to him on cross-examination about what he said to the officers, it would have established voluntariness only as to what it was that defendant said he told officers and there was really no dispute as to the voluntariness of this. I do not see how it could have established volun-tariness with respect to a statement which was not what defendant said that he said and was in fact contrary thereto. It seems to me that even if there had been a hearing as to voluntariness before defendant testified on cross-examination, it would still be necessary to have another hearing when the state was about to show, allegedly from defendant’s mouth a contrary statement, and, if so, I am unable to see any waiver in not asking for a hearing earlier in the ease. In fact, the first hearing would be largely a waste of time, as it would not disclose anything as to voluntariness of a statement not then before the court and which unless the state later offered it, might never be before the court. It seems to me, therefore, that the defendant’s request for a hearing was timely and came at the logical place in the trial. I would reverse and remand.


author: HOGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kenneth Arnold LEWIS, Defendant-Appellant.
    No. 9862.
    Missouri Court of Appeals, Springfield District.
    July 1, 1976.
    Motion for Rehearing or Transfer Denied July 26, 1976.

      Jerry L. Wilkerson, Steelman & Wilkerson, Salem, for defendant-appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before STONE, P. J, and HOGAN and TITUS, JJ.
   HOGAN, Judge.

Kenneth Arnold Lewis appeals from a judgment and sentence of seven years’ imprisonment for burglary in the second degree as defined and denounced by § 560.070, RSMo 1969, V.A.M.S.

The Hauck Oil Company operates a wholesale gasoline and automobile parts business at 18th Street and the Frisco tracks in Rolla, Missouri. At some time during the night of December 26, 1973, a burglar broke into Hauck’s “east side” warehouse and moved several cases of spark plugs from an inside storage area to a position near the point of entry.

Rolla police officers literally tracked the defendant through the snow from the Hauck warehouse to his wife’s pickup, which was parked nearby. The defendant started to drive away. The officers followed him a short distance, stopped him, discovered that he was intoxicated and “arrested him for driving while intoxicated.”

The defendant was taken in custody and remained overnight at the Rolla City Jail. The following morning he was taken to the Phelps County Courthouse. There the investigating officers read the defendant a Miranda warning. The defendant said he understood his “rights”, but nevertheless wanted to make an oral statement. According to Officer Kelley, “Mr. Lewis told Deputy Snodgrass and myself that he had broken the window to Hauck Oil Company and that a — one Henry John Scott had entered the building and carried the spark plugs from the second floor down to the window and he had taken four cases, if I’m not mistaken, of these spark plugs out of the window and set them on the sill when Officer Waterman and myself had come by going across the street, and [they] then seen us, and left the scene around the west end of the building.”

The defendant does not question the sufficiency of the evidence. The two assignments of error briefed and argued in this court are: 1) that the trial court erred in denying defendant’s motion or affidavit for disqualification of judge; 2) that the trial court erred in finding the Second Offender Act applicable because the amended information did not allege that the defendant was placed on probation for the prior offense.

The record discloses that this case was originally set for trial on June 6,1974. The affidavit for disqualification was filed May 31,1974. It was taken up by the court and denied on June 3, 1974, on the ground that the defendant had failed to give reasonable notice of his intention to file the affidavit. The case was then reset for trial on June 12.

The defendant was in no way prejudiced by the trial court’s refusal to disqualify. Even though the notice given may have been reasonable, Rule 30.12, V.A.M.R., provides that the affidavit “must be filed not less than five days before the day the case has been set for trial, except in instances where the particular trial judge has not been designated five days before the day the case has been set for trial.” There is no possibility here that the trial judge had not been designated; we know judicially that the 25th Judicial Circuit did not become a two-division circuit until Monday, January 6, 1975. § 478.700, RSMo Supp.1973, V.A.M.S. Moreover, we know judicially that June 2, 1974, was a Sunday. See State v. Bubenyak, 331 Mo. 549, 552, 56 S.W.2d 43, 44[1] (1932). Therefore, as in State v. Light, 484 S.W.2d 275 (Mo.1972), the day of filing and Sunday, June 2 not being counted, the affidavit of disqualification was filed only four days before the trial, was untimely, and was properly denied.

The defendant’s second point is likewise without merit. The Second Offender Act, § 556.280, RSMo 1969, V.A.M.S., requires, among other things, a finding that the purported second offender shall have been “sentenced and subsequently placed on probation, paroled, fined or imprisoned” (our emphasis). The record here shows that the defendant was convicted of second-degree burglary in 1971. He was placed on probation, but his probationary release was revoked and he was required to serve the remainder of his term in confinement. The information upon which defendant was tried here did allege one of the disjunctive requirements of § 556.280, specifically that defendant “was sentenced ... to imprisonment in the State Department of Corrections for two years and thereafter on the 20th day of June, 1973, was released upon and after full compliance with said Judgment and Sentence.” In this case the State could have relied either on the probation or imprisonment in making its proof of a prior offense, but proof of both was not necessary. As was true in State v. Tyler, 454 S.W.2d 564, 569[12] (Mo.1970), the defendant has mistakenly assumed that the Second Offender Act requires that all the incidents subsequent to the conviction be alleged in the conjunctive. Thus, the only deficiency in the information is that no specific allegation of imprisonment was made but the very allegation that defendant was released from confinement necessarily implies that he was confined. State v. Ellifrits, 459 S.W.2d 293, 296[1] (Mo. banc 1970); State v. Tettamble, 517 S.W.2d 732, 735[4] (Mo.App.1974).

No prejudicial error appears; the judgment is accordingly affirmed.

All concur.

ON ALTERNATIVE MOTION FOR REHEARING OR TO TRANSFER

The defendant has filed an alternative motion for rehearing or to transfer this appeal to the Supreme Court, vigorously asserting that our opinion is in conflict with the opinion of the Kansas City District in State v. Townes, 522 S.W.2d 22, 25[7] (Mo.App.1974). In particular, the defendant says our ruling that his motion to disqualify was untimely filed conflicts with the ruling, in Townes, supra, that “[a] Sunday or legal holiday which falls within the period of time in which an act is to be done does not shorten the period, but is reckoned as part of it.”

Careful consideration of the court’s opinion in State v. Townes, supra, 522 S.W.2d at 25, convinces us that the defendant perceives conflict where none exists. In Townes, supra, the appellant’s contention was that the next to last sentence of Rule 31.01, which deals with the computation of time operates to extend the time in which to file an application for removal on change of venue under Rule 30.04. The court held, in essence, that a holiday which falls within the period allowed for an act to be done does not lengthen the allowable period. That is true, and Townes in no way conflicts with our Supreme Court’s rulings in State v. Light, supra, 484 S.W.2d at 275-276[1], and State v. Thompson, 472 S.W.2d 351, 353[1] (Mo.1971), nor with our opinion on this appeal.

The motion for rehearing is denied; the alternative motion to transfer is denied.

All concur.


text:
    ALLSTATE INSURANCE COMPANY, Plaintiff-Appellant (in Case No. 10297), v. NORTHWESTERN NATIONAL INSURANCE COMPANY OF MILWAUKEE, WISCONSIN, a corporation, Defendant-Respondent, and Farmers Insurance Company, Inc., a corporation, Defendant-Appellant (in Case No. 10316), and Sheryl Lynn Wilson et al., Defendants-Appellants (in Case No. 10321), and Gregory Palmer Hayes, Defendant-Respondent.
    Nos. 10297, 10316 and 10321.
    Missouri Court of Appeals, Springfield District.
    July 12, 1976.
    Donald E. Bonacker, Springfield, for plaintiff-appellant.
    Malcolm L. Robertson, Joplin, for defendant-respondent Northwestern National Life Ins. Co. of Milwaukee, Wis.
    Wallace N. Springer, Jr., Springfield, for defendant-appellant Farmers Ins. Co., Inc.
    A. L. Shortridge, Joplin, for defendants-appellants Sheryl Lynn Wilson et al.
    Thad McCanse, Carthage, Grant W. Scott, Joplin, for defendant-respondent Gregory Palmer Hayes.
   PER CURIAM.

On the 14th day of October, 1975, appellant Allstate Insurance Co. filed its first amended petition for declaratory judgment and named therein all of the above defendants. Defendant Farmers Insurance Co., Inc. answered the petition and appeared at trial. In due course, the cause was heard and a purported judgment was entered which touched all the parties save Farmers Insurance Co., Inc.

In Missouri, the right of appeal is a statutory creation and extends to parties aggrieved by a final judgment. § 512.020 V.A.M.S. It is the duty of an appellate court to examine the judgment for finality before proceeding to an adjudication of the merits. In the case at bar, the judgment fails to dispose of all the parties. Wile v. Donovan, 514 S.W.2d 177, 178[2-8] (Mo.App.1974).

Accordingly, the appeal is dismissed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert H. HARRISON, Defendant-Appellant.
    No. 9669.
    Missouri Court of Appeals, Springfield District.
    July 13, 1976.

      John E. Hosmer, Public Defender, 30th Judicial Circuit, Marshfield, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

A jury found defendant Robert Harrison guilty of felonious stealing as defined and denounced by §§ 560.156 and 560.161, RSMo 1969, V.A.M.S. The Second Offender Act, § 556.280, was found to be applicable and defendant’s punishment was assessed at seven years’ imprisonment. Defendant appeals.

The cause involves a theft of money from the Tee Pee Villa, an establishment near Warsaw, Missouri. According to Mrs. Myrl Dahlgren, the proprietress, the Tee Pee Villa consists of a “restaurant, motel units, a trailer court, [and] 3.2 beer.” It is open weekends, and therefore Mrs. Dahlgren goes “downtown” to the bank on Monday to replenish her supply of change for the cash register.

On September 24, 1973, Mrs. Dahlgren left about 1:00 or 1:30 p. m., obtained $160 in currency and coins and returned at 3:00 p. m. Defendant was seated either at the counter or in a booth near the counter, close to the cash register. The cash register was “short on quarters and pennies” so those coins were put in the register. Mrs. Dahl-gren left her “money bag” lying “right on the counter”, went to her living quarters, changed to her work clothes and returned to the restaurant. She then realized that her money bag and the defendant were gone. Mrs. Dahlgren spent some time trying to locate her money bag on the premises; she then called the sheriff. When the money bag was taken, it contained about $150 in currency and coins, some checks “that had come back”, and Mrs. Dahlgren’s “extra keys that [she] had for the restaurant”. The keys (here State’s exhibit 7) were positively identified by this witness; one key is for the doorknob on the front door of the tavern, the other for an “extra security” padlock attached to the front door.

The State also had evidence from Ron Flippin, the City Marshal of Cole Camp, which is 22 miles from Warsaw. At 5:30 p. m. on September 24, Mr. Flippin was asked to apprehend the defendant. Mr. Flippin was distracted by other duties, but about 8:15 p. m. he was driving “through town” in company with a deputy marshal, and “noticed [defendant] setting in the Keg Tavern.” Mr. Flippin got out of his car to call a deputy sheriff. While Flippin was making the call defendant “came out of the Keg Tavern” and took flight. Flippin and his deputy pursued the defendant down an alley, but were unable to catch him. Flippin then went to the defendant’s house. The defendant was not in, but his wife promised to notify the officers if he came home. About 12:30 a. m. on September 25, defendant’s wife advised Flippin that the defendant was at home. The marshal went to the defendant’s residence and discovered defendant in a small “ball park” near his house. Defendant was “[l]aying flat on the ground, out on all fours.”

Defendant was arrested and taken to the City Jail in Cole Camp. A search of defendant’s person disclosed that he had a “handful of change, loose change, and . a key ring, with two keys on it” in his left pocket. In defendant’s right pocket, there was a ten dollar bill and other currency “doubled up and wadded up”. This witness identified exhibit 7 (the keys) as articles taken from defendant’s person at the jail.

To corroborate Mr. Flippin, the State called A1 Doty, Deputy Sheriff of Benton County. Mr. Doty testified that he was present when defendant was brought to the Cole Camp City Jail, that he advised defendant of his “constitutional rights” and that State’s exhibit 7 came from defendant’s person when he was searched in Cole Camp. The keys, Mr. Doty said, were sealed in an envelope and surrendered to the sheriff at Warsaw. It was demonstrated to the jury that the keys taken from the defendant operate the door lock and padlock taken from the front door of the Tee Pee Villa. We have independently demonstrated that fact here.

A word concerning the defendant’s brief seems appropriate. Time and again since the enlargement of its jurisdiction by the amendment of Mo.Const. Art. V, § 3, the Court of Appeals, hagridden by an utterly unmanageable caseload, has called attention to counsel’s duty to brief the appeal in compliance with the rules of the Supreme Court governing appellate practice. State v. Schulten, 529 S.W.2d 432, 433-434[1-4] (Mo.App.1975); Cole v. Cole, 516 S.W.2d 518, 521-522 (Mo.App.1974). On a criminal appeal, as on a civil appeal, the appellant has the burden of demonstrating error, see State v. Chase, 444 S.W.2d 398, 404[10-11] (Mo. banc 1969); State v. Jackson, 477 S.W.2d 47, 51[2] (Mo.1972), and that must be done in accordance with the rules. Perfection is not required, but it is necessary for counsel to locate the allegedly erroneous ruling in the record, state explicitly why he conceives the ruling complained of constituted error, and furnish the court with some semblance of authority in support of his position. In this case, quite able counsel has made five separate allegations of error; in no instance has the allegedly erroneous ruling been located in the record. With the exception of the allegation that the evidence does not support the judgment of conviction, none of the “points” asserted have been developed in the “argument” part of the brief. We shall consider the sufficiency of the evidence to support the conviction, but we cannot become advocates for the defendant, and we decline to review the points not developed in the argument. Bopp v. Spainhower, 519 S.W.2d 281, 286[7] (Mo. banc 1975); State v. Schulten, supra, 529 S.W.2d at 434[4].

The burden of the defendant’s point concerning the sufficiency of the evidence is that the criminal agency of the defendant was not established. Counsel emphasizes that the State’s ease was circumstantial and he cites a number of decisions which state the familiar rule that when the evidence of an accused’s criminal agency is entirely circumstantial the facts and circumstances relied on to establish guilt must be consistent with one another and consistent with the hypothesis of guilt, and must so satisfactorily and clearly point to the accused’s guilt as to exclude every reasonable hypothesis of innocence. State v. Thomas, 452 S.W.2d 160, 162[1] (Mo.1970); State v. Miller, 536 S.W.2d 524, 526[1] (Mo.App.1976). That statement is undoubtedly sound, but it is also the law that any fact, including the criminal agency of the defendant, may be proved circumstantially, State v. Chase, supra, 444 S.W.2d at 402[2]; State v. Brewer, 325 S.W.2d 16, 20[11] (Mo.1959), and the circumstances relied on need not be absolutely conclusive of guilt and need not demonstrate the impossibility of innocence. State v. Thomas, supra, 452 S.W.2d at 162[2]; State v. Taylor, 445 S.W.2d 282, 284[5] (Mo.1969); State v. Brunson, 516 S.W.2d 799, 803[7] (Mo.App.1974). Moreover, the defendant offered evidence, thereby waiving any error in the refusal of his motion for judgment of acquittal at the close of the State’s case-in-chief, State v. Hill, 438 S.W.2d 244, 247[5] (Mo.1969), and in such circumstances, we must accept as true all record evidence favorable to the result reached, including that offered by the defendant, together with the inferences reasonably to be drawn therefrom, and disregard the evidence and inferences to the contrary. State v. Johnson, 447 S.W.2d 285, 287[2] (Mo.1969); State v. Truster, 334 S.W.2d 104, 107[2, 3] (Mo.1960).

So considered, and taken fact by fact and circumstance by circumstance, the record demonstrates:

1. The defendant was present in the Tee Pee Villa near the place where Mrs. Dahlgren’s money bag was taken; in addition, the record shows that he had previously lived at the Villa for some time; presumably he was familiar with the owner’s practice of replenishing her change each Monday. Defendant sought employment while Mrs. Dahlgren was present; the offense occurred in September, and defendant had not been gainfully employed since February. The presence of the accused at the place of commission of a crime may be considered as an incriminating circumstance if the total circumstances raise a reasonable inference that the accused was a participant or an aider or abettor. State v. Chase, supra, 444 S.W.2d at 403[7]; State v. Simmons, 494 S.W.2d 302, 305[4] (Mo.1973). In this particular case, the circumstances just recited were relevant to show defendant was in need of money and to indicate a probable theft. 2 J. Wigmore, Evidence § 392, at 342 (3d ed. 1940).

2. When the defendant saw the City Marshal of Cole Camp and his deputy shortly after the money was found missing, defendant took flight. No explanation of this flight inconsistent with defendant’s guilt was offered, nor does any appear from the record. Defendant’s unexplained flight could properly be considered as a circumstance indicating guilt. State v. Simmons, supra, 494 S.W.2d at 305[4]; State v. Kilgore, 447 S.W.2d 544, 547[4] (Mo.1969); 2 J. Wigmore, supra, § 276.

3. When the defendant was taken in custody, he was in possession of a quantity of money; the denominations of the money found and the money taken corresponded fairly closely. In addition, the other circumstances shown indicate that the defendant’s possession of money was recent and sudden. In such circumstances, the possession of unidentified money was a relevant circumstance permitting an inference of guilt. Hansbrough v. United States, 156 F.2d 327, 329[6] (8th Cir. 1946); State v. Garrett, 285 Mo. 279, 289-290, 226 S.W. 4, 7[10] (1920); 1 J. Wigmore, Evidence § 154 (3d ed. 1940).

4. The defendant was shown to be in exclusive possession of keys which were in the money bag and which were the very keys to the front door and the padlock on the front door of the Tee Pee Villa. Contrary to defendant’s position, the keys were admissible in evidence and his possession of the keys constituted a persuasive circumstance indicating his guilt. State v. McBride, 366 S.W.2d 374, 378-379[7] (Mo.1963); State v. Hedgpeth, 311 Mo. 452, 459-460, 278 S.W. 740, 742[4, 5] (1925); 1 J. Wigmore, supra, § 153.

Conceding that the determinative question is one to be decided upon the peculiar facts of a particular case, State v. Simmons, supra, 494 S.W.2d at 305[5], we find the evidence here sufficient to warrant a finding that defendant was guilty beyond a reasonable doubt. The judgment is accordingly affirmed.

All concur.

      . References to statutes and rules are to RSMo 1969, V.A.M.S. and V.A.M.R.