author: YOUNG, Justice.

text:
    Kenneth WRIGHT ex ux., Appellants, v. Lawrence CARPENTER, Appellees.
    No. 1334.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 29, 1979.
    Rehearing Denied April 19, 1979.

      John C. North, Jr., North, White & Black-mon, Corpus Christi, for appellants.
    W. DeWitt Alsup, Alsup & Alsup, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

This is an appeal from a suit alleging fraud relative to a real estate transaction. Appellees, Lawrence Carpenter and Wilma P. Carpenter, sued appellants, Kenneth Wright and Jean Wright, for fraud in connection with their purchase of appellants’ home. In short, the appellees alleged that the appellants represented that their home had a roof in good condition, but that after they moved in, the roof leaked and appel-lees had to replace the roof. Trial was to the court without a jury and thereafter the trial court filed findings of fact and conclusions of law. The court found the Wrights liable in the amount of $867.75, which is one-fourth of the value of the new roof. We affirm.

The record fairly indicates the following events. On October 2, 1976, appellees, at that time residents of Missouri, contacted Mrs. Grant, a realtor in Corpus Christi, and asked her to show them some homes suitable for their future retirement. Mrs. Grant took the appellees to the appellants’ home. Appellees expressed an interest and there in the home asked the appellants several questions concerning the age of the home and more particularly the condition of the cedar shingle roof. Mr. Wright, at trial, testified, in response to this questioning, that he told Mr. Carpenter that he had had the roof previously inspected and that the inspector told him that the roof should be good another four to five years and that he offered to give Mr. Carpenter the inspector’s name. He also claimed he told Mr. Carpenter that an insurance adjuster had also inspected the roof for hail damage and that the roof was repaired in various spots with metal “step-shingles.” Mr. Carpenter reported that Mr. Wright told him about an inspector and that Wright offered to give Carpenter the inspector’s name, but testified that Mr. Wright then stated factually that the roof would be good for another five years and that the roof was in good shape. Mr. Carpenter also denied that Mr. Wright had said anything about an insurance adjuster, hail damage or metal “step-shingles.”

The parties then went outside to observe the house, but according to undisputed testimony, several large trees covered extensive portions of the front of the roof and its condition was not visible. Appellees signed a contract to purchase the home later that same day.

A few weeks later the appellees moved into the house, had the interior walls repainted, and had the trees in the front of the house trimmed. The trimmers advised the appellees that a number of shingles were missing and that the roof was rotten toward the front of the house. Several rains followed and the new inside paint began to run in streaks from leaking water. Appellees subsequently had the roof replaced.

At trial the appellant, Mr. Wright, testified that in the three years he and his wife had lived in the house prior to the sale herein that the roof had never leaked. Also at the trial, the roofer who replaced the roof testified that the new roof would last about 20 years and that the cost of the new roof was $3471.00.

Appellants bring forward six points of error. Appellants’ point 1 contends that the pleadings and evidence do not support the judgment as a matter of law. More specifically, the appellants allege that the trial court used the cost of repairs as the basis for damages rather than the damage measure provided in Tex.Bus. & Comm. Code Ann. § 27.01 (1968), or in the alternative, if it did use a proper measure of damages, there was no pleading to raise an issue as to the measure of damages used.

We first note that within the text of appellants’ brief they not only concede that section 27.01 does not supersede the common law measure of damages, but also concede that appellees have pled the elements necessary to prove fraud.

Because of some apparent inconsistencies in the law, though, we will briefly consider appellants’ contentions. Appellants primarily rely on Sibley v. Southland Life Ins. Co., 36 S.W.2d 145 (Tex.Comm’n App.1931, opinion adopted), for the proposition that the proper measure of damages in this case is the difference between the value of the real estate as represented and its actual value in the condition it was delivered at the time of the contract. The facts in Sibley are very similar to those in the case on appeal. There a purchaser sued to recover the costs required to complete some houses promised to be completed after the contract was entered into. But we note one primary distinguishing characteristic from the instant case; i. e., the Sibley appellate court assumed that the suit was brought exclusively under Section 27.01 (then Tex.Rev.Civ.Stat.Ann. art. 4004). With the statute as the exclusive basis for recovery, repairs (or costs of completion) were not a proper measure of damages. Accord: Huth v. Cater, 215 S.W.2d 270 (Tex.Civ.App.—San Antonio 1948, writ ref’d n. r. e.); Payton v. City of Big Spring, 157 S.W.2d 975 (Tex.Civ.App.—Eastland 1941, no writ); See 39 Tex.L.Rev. 108 (1960).

More recently, however, the courts have recognized the plaintiff’s discretion to sue either under the statute, at common law or both. El Paso Development Company v. Ravel, 339 S.W.2d 360 (Tex.Civ.App.—El Paso 1960, writ ref’d n. r. e.); (cited with approval in Stanfield v. O’Boyle, 462 S.W.2d 270 (Tex.Sup.1971); see also Woo v. Great Southwestern Acceptance Corp., 565 S.W.2d 290, 297-298 (Tex.Civ.App.—Waco 1978, writ ref’d n. r. e.); Miller v. Schuman, 556 S.W.2d 97, 99 (Tex.Civ.App.—El Paso 1977, writ ref’d n. r. e.); Collins v. Miller, 443 S.W.2d 298 (Tex.Civ.App.—Austin 1969, writ ref’d n. r. e.); Maddox v. Worsham, 415 S.W.2d 222, 226 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.).

A case remarkably comparable with the instant case is Hughes v. Halliday, 471 S.W.2d 88 (Tex.Civ.App.—Waco 1971, no writ). In Hughes, a real estate agent falsely represented that the air conditioning unit in a home was in proper working condition. After buying the home the purchaser found the air conditioning system inoperable and had the system replaced. The purchaser alleged fraud and sued for the cost of the repairs only. The real estate agent alleged that section 27.01 contained the only proper measure of damages. The trial court agreed and directed a verdict for the defendant. On appeal, the reviewing court held that section 27.01 is not the exclusive measure of damages in a real estate fraud case and that the cost of reasonable and necessary repairs was an adequate measure of damages.

Under the common law measure of damages, a defrauded party is entitled to recover in tort such damages as result directly from the fraud. Taylor v. Gray, 547 S.W.2d 644, 656 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). The measure of damages is the pecuniary loss measured by the difference between the value of the thing obtained and its purchase price or the value of the thing exchanged for it; but it is also the pecuniary loss suffered otherwise as a consequence of the recipient’s reliance upon the truth of the representation. El Paso Development Company v. Ravel, supra at 365.

Within this framework, we hold that part of the cost of replacing the roof herein was suffered as a consequence of the appel-lees’ reliance on the appellants’ representation, and that such was a proper measure of damage. As in Hughes, we find that the reasonable and necessary repairs are a proper measure of damages in this fraud suit to recover damages arising from this real estate transaction. See also Annot., 13 A.L.R.3d 875 (1967). We also note that appellees did, indeed, properly plead a common law action for fraud. Appellants’ point 1 is overruled.

Appellants’ points 2 through 6 are argued together. We will attempt to relate the arguments to the points of error. Appellants’ points 4 and 5 contend there is no evidence and insufficient evidence that appellants knew their representations concerning the roof were false at the time made. This contention incorrectly assumes that for a statement to constitute the basis of actionable fraud that the maker must have known it was false when made. The maker of a false representation need not, in every instance, know it is false for the statement to form the basis for actionable fraud. Wilson v. Jones, 45 S.W.2d 572 (Tex.Comm’n App.1932, holding approved); Featherlax Corporation v. Chandler, 412 S.W.2d 783 (Tex.Civ.App.—Corpus Christi 1966, writ ref’d n. r. e.). Appellants’ points 4 and 5 are overruled.

Appellants, in their point 6, contend that the trial court’s findings of fact entitle them to judgment as a matter of law. In particular, appellants point to finding number 2 which states that Mr. Wright represented to Mr. Carpenter that he had the roof inspected and had been advised that the roof was good for another four or five years. Appellants argue that this finding conclusively shows that Mr. Wright was merely relaying information conveyed to himself and that the mere passing of information cannot form the basis for an action in fraud.

We agree that ordinarily an action in fraud may not be based on statements that are expressly represented to be made on information. Boles v. Aldridge, 107 Tex. 209, 175 S.W. 1052 (1915); 25 Tex.Jur.2d, Fraud and Deceit § 39 (1961). Such statements may, however, amount to positive statements of fact if full responsibility for their truth is assumed. Miller v. Esunas, 401 S.W.2d 150, 156 (Tex.Civ.App.—Tyler 1966, writ ref’d n. r. e.). The testimony in this case raised a fact issue whether the appellants’ representations concerning the quality of the roof were positive assertions of fact or were statements that merely transferred information. Mr. Wright testified that he made no representation concerning the veracity of the opinion made by his roof inspector, but only related what the inspector had told him. He further claimed that he never represented that the roof was in good condition. We note, however, what appears to be a contradiction. At page 17 of the statement of facts Mr. Wright stated:

“I told him [Mr. Carpenter] I had it looked at by two people and the condition of the roof was satisfactory to me from their report, it was good for four to five years.” (Emphasis supplied.)

Appellee, Mr. Carpenter, testified that the appellant, Mr. Wright, told him that he had had someone look at the roof, that the roof was in good shape and that the roof would last for five years. Mr. Carpenter further stated that Mr. Wright’s statements concerning the roof were not like an opinion, but were stated as a “flat” fact. Neither party requested a finding of fact addressing this issue of whether Mr. Wright’s statements were representations of fact or were merely relations of information. Further, finding of fact number 2 does not conclusively establish that Mr. Wright’s statements were merely relations of information as opposed to asserted facts. In addition, no other fact finding answered this issue. Compare Miller v. Esunas, supra at 156, where the trial court submitted this type of issue to the jury. Accordingly, we must presume that the trial judge found this issue in accordance with the judgment; i. e., that appellant’s statement constituted fact assertions and not merely relations of information. Rule 299, T.R.C.P., Woodard v. Hopperstad Builders, Inc., 554 S.W.2d 726 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). We also hold there was sufficient evidence to support this implied finding.

Appellants further argue, within this context, that the assertion that the roof would last for five years was an opinion or future prediction and thus was not an assertion of fact and therefore could not be a basis for fraud. See e. g., Frankfurt v. Wilson, 353 S.W.2d 490, 496 (Tex.Civ.App.—Dallas 1961, no writ). Here again, we find a disputed fact issue that was not addressed in the trial court’s findings of fact. Compare Miller v. Latham, 276 S.W.2d 858 (Tex.Civ.App.—Amarillo 1954, writ ref’d n. r. e.). This issue will also be deemed found in accordance with the trial court’s judgment; i. e., that the representation was stated as a fact as opposed to an opinion or future prediction. Rule 299, T.R.C.P.

The evidence also supports this implied conclusion. Representations as to matters not equally open to parties are legally statements of fact and not opinions. Huffmaster v. Toland, 250 S.W. 468 (Tex.Civ.App.—Texarkana 1923, writ dism’d). The record discloses that facts concerning the condition of the roof were not equally available to the appellants and the appel-lees. For example, the appellants had owned the home for three years, had known of past repairs (which according to Mr. Carpenter were not told to him) and had seen the roof during the time of year when trees were not covering it. Appellees, on the other hand, lived out of state and could not have judged the weather conditions bearing upon the roof nor did they know the history of the roof, the inspector that inspected the roof, or what the roof looked like when it was not covered with leaves. Accordingly, we find under the above stated rule that the representations were statements of fact. We also find that the statement concerning the future life of the roof in question was tantamount to explaining its condition and quality and that it did not represent a future prediction but rather represented an appraisal of a present condition. Appellants' point 6 is overruled.

In appellants’ points 2 and 3 they contend that there was no evidence and insufficient evidence that appellant, Mr. Wright, falsely and fraudulently represented to appellees that the roof was in good condition and did not need repairs. We disagree. The testimony heretofore related constitutes sufficient evidence of the fraudulent representations.

Within the general arguments under points 2 through 6 the appellants assert that appellees waived their right to assert a fraud action because they could have easily ascertained the condition of the roof by personal inspection. We do not agree. Where, as in this case, a party is guilty of an affirmative fraudulent misrepresentation of a fact, he should not be permitted to urge that the defrauded party could have discovered the truth had he diligently made an investigation. Bush v. Stone, 500 S.W.2d 885, 891 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.); Ellison v. Knapek, 421 S.W.2d 474, 477 (Tex.Civ.App.—Waco 1967, writ ref’d n. r. e.); 25 Tex.Jur.2d, Fraud and Deceit § 26 (1961). Moreover, the evidence shows that the ap-pellees could not have easily discovered the rotten roof because of the foliage hanging over it at the time of the contract. The Carpenters surely were not guilty of inexcusable inattention. Appellants’ points 2 and 3 are overruled.

The judgment of the trial court is affirmed.

NYE, C. J., not participating.

      . The measure of actual damages is the difference between the value of the real estate as represented and its actual value in the condition it was delivered at the time of the contract.

      . (1) That on the 2nd day of October, 1976 the Plaintiffs, Lawrence Carpenter and wife, Wilma P. Carpenter, entered into a contract of sale for the purchase of Defendants’, Kenneth Wright and wife, Jean Wright, home located at 434 Carmel also known as Lot 18, Block 25, Lamar Park # 9 located in Corpus Christi, Nueces County, Texas.
      (2) That prior to the execution of such contract of sale, the Defendant, Kenneth Wright, represented to the Plaintiff, Lawrence Carpenter, that he, Kenneth Wright, had the roof inspected and had been advised that the roof was good for another four (4) or five (5) years.
      (3) That Plaintiff relied upon such representation that the roof was good for another four (4) or five (5) years.
      (4) That such representation to the Plaintiff by the Defendant was a material representation without which the Plaintiffs would not have entered into such contract for sale with the Defendants.
      (5) That on or about the 7th day of March 1977 the Plaintiff, Lawrence Carpenter, was required by the leaking of such roof on the home to have the entire roof on the home replaced.
      (6) That by reason of the required replacement of such roof due to excessive leaking the representation by the Defendant, Kenneth Wright, that the roof was good for another four (4) or five (5) years was false.
      (7) That the cost of replacing the roof was in the amount of $3,471.00.
      (8) That the Plaintiffs as a result of reliance on such representation that the roof would last another four (4) or five (5) years were damaged in the amount of $867.76, which represented the pro-rata cost of a five year roof based upon cost incurred by Plaintiff in replacing the entire roof.


source: Caselaw Access Project

author: BISSETT, Justice.

license: Public Domain

text:
    Theodore F. CASTILLO, Appellant, v. Josefa R. EURESTI, Appellee.
    No. 1384.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 29, 1979.
    Rehearing Denied April 19, 1979.
    Walter Groce, Corpus Christi, for appellant.
    Bonner Dorsey, Corpus Christi, for appel-lee.
   OPINION

BISSETT, Justice.

The principal issue presented by this appeal is whether the granting of defendant’s motion for an instructed verdict was proper. Theodore F. Castillo, plaintiff, filed suit against Josefa R. Euresti, defendant, on November 4, 1974, whereby he sought to recover title to and possession of a certain lot in Corpus Christi, Texas. Trial was to a jury. At the close of plaintiff’s evidence, defendant, in open court, orally moved for an instructed verdict, which was granted. Judgment that plaintiff take nothing was duly rendered and signed. Plaintiff has appealed.

Plaintiff alleged that on June 2, 1964, his parents, Francisco G. Castillo and wife, Josefa M. Castillo, were the owners of Lot 12, Block 16, Paul Court Addition to the City of Corpus Christi, Texas, and that on June 2, 1964, they, being desirous of making a loan on said property but could not legally do so because it was their residential homestead, conveyed the same to Valentin T. Rodriguez, who made them a loan with the understanding that the property would be reconveyed to them upon repayment of the loan; that no money was actually paid by the grantee to the grantors but that a loan was made “against the same from Alston Terry, secured by a deed of trust lien on said property.” Plaintiff then alleged that his parents were both dead, and that he, “as the sole heir-at-law of the said Francisco G. Castillo and wife, Josefa M. Castillo,” is now entitled “to all right, title and interest that they had” in the property.

Defendant, in addition to a general denial and several special denials, pled several affirmative defenses to the action. Included therein, is a plea that she is a good faith purchaser of the property and that the same was purchased without notice of plaintiff’s equitable interest, if any, in the property.

Plaintiff, in points 1, 2, 3 and 5, contends that the trial court erred in granting the instructed verdict against him because: 1) there was evidence that the property was conveyed to Valentin T. Rodriguez “as a mortgage,” which fact was known to defendant “when she accepted a deed thereto from the said Valentin T. Rodriguez” (point 1); there was evidence of a debt “between Francisco Castillo and Valentin T. Rodri-' guez when the many receipts offered in evidence showed that they were payments on the house” (point 2); the court should have submitted the receipts to the jury as some evidence of the debt on the property (point 3); and the court did not require defendant to file a written motion for instructed verdict and to set out therein the specific grounds upon which she relied (point 5). None of the points can be sustained.

Defendant’s motion for an instructed verdict was oral, and was made after plaintiff had rested. Several specific grounds were urged, including the grounds that there was no evidence that the Castillos, grantors in the June 2, 1964 deed, and Rodriguez, grantee in said deed, intended to treat the deed as a mortgage; that there was no evidence that defendant, the holder of the legal title to the property in question, was not an innocent purchaser for value; and that there was no evidence to rebut the presumption that the deed from Rodriguez to defendant was an absolute conveyance of the land.

Although the better practice is to file a written motion for an instructed verdict, a formal writing is not required where there is no evidence which warrants the submission of the case to a jury, and especially where specific grounds are stated in the oral motion. Shapiro v. Edwards, 331 S.W.2d 242 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.); Marlin Associates v. Trinity Universal Ins. Co., 226 S.W.2d 190 (Tex.Civ.App.—Dallas 1950, no writ). Moreover, where no fact issues are raised by the evidence, the questions to be resolved become questions of law, and the trial court may, at the conclusion of plaintiff’s evidence, on its motion, take the case away from the jury and instruct a verdict for the defendant. In Re Price’s Estate, 375 S.W.2d 900 (Tex.Sup.1964); Harvey v. Elder, 191 S.W.2d 686 (Tex.Civ.App.—San Antonio 1945, writ ref’d). Point 5 is overruled.

In an instructed verdict case, an appellate court is required to view the evidence most favorably to the appellant, the losing party in the trial court, to indulge against the judgment every inference that can be properly drawn from the evidence, and to disregard all evidence adverse to the appellant. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.Sup.1970); State Highway Department v. Hinson, 517 S.W.2d 308 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.).

We discuss all of the evidence, but in disposing of the aforesaid points, we consider only the evidence which is most favorable to plaintiff, appellant herein. Each of the hereinafter mentioned deeds was regular on its face, and purported to be an absolute conveyance, subject to liens therein contained, of the premises described therein. It is undisputed that the property in question was the residential homestead of Francisco G. Castillo and wife, Josefa M. Castillo, until June 2, 1964, when they conveyed the property by general warranty deed, to Valentin T. Rodriguez. Following the execution of the deed, the grantors continued to live in the house located on the premises until the date of their respective deaths. Mrs. Castillo died intestate in 1971, and Mr. Castillo died testate on August 25, 1974. This will had not been probated at the time of trial and no probate proceedings were ever had on his estate or on Mrs. Castillo’s estate.

The deed from the Castillos to Rodriguez recites a consideration of $10.00 and “other good and valuable consideration including the execution and delivery by Valentin T. Rodriguez to Alston Terry of one certain Vendor’s Lien Deed of Trust note in the amount of $1,650.00 payable $40.00 per month . . . bearing interest at 8% per annum . . . said note being secured by a deed of trust . . . payments on said note to be applied first to interest and balance to principal.” A vendor’s lien was also retained against the property conveyed by the deed to secure the payment of the note. The check for the amount of the loan, signed by Terry, was made payable to the order of Rodriguez and the Castillos. The deed of trust, which was executed by Valentin T. Rodriguez to Wm. J. Miller, Trustee for the benefit of Alston Terry, dated June 2, 1964, was released by a written release, dated October 8, 1968. The release stated that the aforesaid note had been paid in full.

On November 7, 1968, Valentin T. Rodriguez, by general warranty deed with a vendor’s lien retained, conveyed the property to defendant. The deed recited a consideration of $10.00 in cash, other good and valuable consideration, and the further consideration of the execution and delivery by Josefa Euresti of one promissory note in the principal sum of $1,818.00, payable to the order of Corpus Christi Savings and Loan Association as therein provided and secured by the vendor’s lien retained by the grantor in the deed and therein transferred to the Corpus Christi Savings and Loan Assoeiation, and additionally secured by a deed of trust executed by Josefa Euresti, the grantee, to Charles L. Baskin, Trustee.

Josefa Euresti, defendant, was called as an adverse witness by plaintiff. She testified that she was a daughter of Valentin T. Rodriguez and that she worked for her father, who owned and operated the Comanche Loan Company, for about 15 years, commencing in 1963. She stated that on numerous occasions Francisco G. Castillo paid money to Valentin T. Rodriguez at the office of the loan company and that she, or Angie Garcia (who worked on Saturdays), or her father, gave him a receipt when such a payment was made. Thirty-eight (38) of such receipts were introduced in evidence. Some were for “rent” and some were for “house payments.” One of the receipts is dated December 3, 1968, and the others are dated in 1969, in 1970, in 1971 and in 1972; all of the receipts contain the following:

“Previous Balance $ _
Amount Paid $ _
Balance Due $ .”

All of the aforesaid blanks were filled in. Most of the payments were $60.00 each, but some were for $53.00 and some were for $20.00. In addition, there were several other pieces of paper introduced in evidence as receipts, but they are meaningless since it is impossible to determine what they actually represent. Defendant testified that she did not know anything about the deed from the Castillos to her father, and did not know anything about any business dealings between them. She also stated that she bought the subject property from her father and negotiated a loan with the Corpus Christi Savings and Loan Association in order to obtain the purchase money to complete the purchase. She said that she paid off the loan from rent “from the property I bought.”

Concerning the transaction of June 2, 1964, whereby the land in question was conveyed to Valentin Rodriguez, Mr. Alston Terry, who made the $1,650.00 loan to Rodriguez, testified that Mr. Frank Liggett approached him immediately prior to June 2,1964, and told him that Rodriguez wanted to buy a house on Lipan Street, needed $1,650.00 and asked if Terry would make the loan. Shortly thereafter the Castillos and Rodriguez came to Terry’s office and the matter was further discussed. Terry testified that all parties, the Castillos and Rodriguez, assured him that the proposed sale of the property in question “was a sale of the property and nothing else.” He was aware of the fact that the Castillos were living in the home located on the subject lot. He advised all parties that he did not make any loans on homesteads, and further told the parties that if the property was a homestead of the Castillos, he “didn’t want to have anything to-do with it.” He said that the check for $1,650.00 was made payable to both Rodriguez and the Castillos because the Castillos were living in the house. Terry further testified that Castillo, in person, brought the money required for the payments on the note to his office, and his secretary gave him receipts, which receipts, “were made to Valentin Rodriguez.” The receipts were not introduced in evidence.

Plaintiff testified that he never had any business dealings whatever with Terry. He did, however, make one “payment” to defendant about March 28, 1978. He lived in the house from the day he was born (March 26, 1928) until sometime after the date of his father’s death.

In order for plaintiff to prevail in this lawsuit, he was required to prove: 1) that the deed from the Castillos to Rodriguez was a mortgage and not an absolute conveyance; and 2) defendant was not a good faith purchaser without notice that the aforesaid deed from the Castillos was a mortgage. Plaintiff did not meet his burden.

It is conclusively established that the property here involved was the residential homestead of the Castillos on June 2, 1964, when they conveyed the premises to Rodriguez, and, therefore, not subject to a valid mortgage. The only testimony in the record relating to the true nature of the transaction is found in Terry’s testimony. He testified, in effect, that the Castillos and Rodriguez represented to him that the transaction was a bona fide sale, and assured him that it was not intended as a mortgage between Rodriguez, as mortgagee, and the Castillos, as mortgagors. While it is undisputed that Castillo actually delivered money to the Comanche Loan Company office, as testified by defendant, and to Terry’s office, as testified by Terry, it is also undisputed that the note was executed by Rodriguez and all receipts were made out to Rodriguez.

The note executed by Rodriguez, payable to the order of Terry, was fully paid on October 18, 1968. All of the “receipts” introduced in evidence (those for payments made by Castillo at the office of Comanche Loan Company) were issued after that date. There is no correlation between the dates shown on such “receipts” and those shown on the Rodriguez note concerning the dates when “note payments” were made. Therefore, the notation “house payments” on some of the “receipts” means nothing since all the monies evidenced by the “receipts” were paid after the note had been paid. Not only is there no evidence, direct or circumstantial, that the monies evidenced by the “receipts” were paid on the Rodriguez note as payment on Castillos’ debt, but there is nothing shown which will support such an inference, or that such payments created a fact issue as to whether they were payments on the asserted mortgage.

We hold that there was no evidence that the deed from the Castillos to Rodriguez was intended to be a mortgage or that the same constituted a mortgage. Moreover, defendant testified that she did not know any of the details incidental to the execution of the deed to her father by the Castillos; that she financed the purchase of the premises from her father by borrowing $1,818.00; that the loan for the said amount of money was paid by her; and that she “bought” the property from Rodriguez and paid him $1,500.00. Such testimony was not disputed. There is no evidence that defendant knew, or should have known, that the deed from the Castillos to her father was, in reality, a mortgage, and no facts are presented by the record which will support such an inference. It is conclusively established that defendant was a good faith purchaser for value without notice of any claim that the Castillo deed to Rodriguez was only a mortgage. Points 1, 2, and 3 are overruled.

We have carefully considered plaintiff’s remaining point of error. It is overruled.

AFFIRMED.


author: PALMORE, Chief Justice.

text:
    LOUISVILLE MEMORIAL GARDENS, Appellant, v. COMMONWEALTH of Kentucky DEPARTMENT OF TRANSPORTATION, Appellee.
    Supreme Court of Kentucky.
    March 16, 1979.
    Albert F. Reutlinger, Louisville, for appellant.
    Dandridge F. Walton, Dept, of Transp., Frankfort, Jack M. Lowery, Jr., Boone, Lowery & Zoeller, Louisville, Dan K. Stockton, Louisville, for appellee.
   OPINION AND ORDER

PALMORE, Chief Justice.

On December 18, 1978, this court granted appellant’s motion for discretionary review of a decision of the Court of Appeals. On January 22, 1979, appellant moved for an extension of time in which to file its brief. Already, however, the 30-day period allowed for filing of the brief had expired by reason of CR 76.20(9)(b), which provides that the time (30 days, per CR 76.12) for filing the appellant’s brief runs from the date of the order granting discretionary review. For that reason we denied the motion as untimely and, on motion of the appellee, dismissed the appeal.

Appellant has filed a motion that we reconsider the dismissal and has tendered its brief on the merits. Counsel for appellant concedes that he miscalculated the time in which he was required to file a brief, in that he relied on CR 76.12(2)(a) and overlooked CR 76.20(9)(b).

In the major overhaul of the procedural rules which became effective on January 1, 1978, CR 76.20(9)(b), as first written, made reference to the time for preparation and certification of the record on appeal but did not mention briefs. It was soon realized that this provision was anomalous, because in the case of a motion for discretionary review the record will already have been prepared and certified. Consequently, CR 76.20(9)(b) was amended as of March 1, 1978, to delete all references to perfecting the appeal and certifying the record, and to provide only that the times prescribed in CR 76.12(2) for the filing of briefs shall run from the date of the order granting review.

CR 76.12 is entitled “Briefs.” CR 76.12(2) is the paragraph of that rule that sets the time requirements for briefs in all appealed cases. CR 76.20 is entitled “Motion for Discretionary Review.” CR 76.20(9) is entitled “Disposition of Motion,” and tucked away in this paragraph, which is not otherwise concerned with briefs, is subparagraph (b), which provides for the computation of time with respect to the filing of briefs.

It has been and still is the policy of this court to be rather strict in the enforcement of time requirements prescribed by the rules of procedure. Nevertheless, we recognize that the number and frequency of rules changes occasioned by the recent restructuring of the judicial system was bound to create a certain amount of confusion and disorientation on the part of both lawyers and court personnel, some of which can be held as excusable without compromising that principle. In this instance we are disposed to hold counsel’s error excusable. The fault is partly our own, in that the substance of CR 76.20(9)(b) should have been either included or referred to in CR 76.12(2). A rules amendment to accomplish that purpose will be issued in due course.

The order denying appellant’s motion for an extension of time and dismissing the appeal is vacated, and the brief tendered by appellant on February 13, 1979, is ordered filed. The time for filing of appellee’s brief in response is extended to and including April 16, 1979.

All concur.


author: AKER, Justice.

text:
    Kevin Adrian MURTAUGH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 10, 1979.

      Jack Emory Farley, Public Defender, Linda K. West, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   AKER, Justice.

Appellant Kevin Adrian Murtaugh appeals from á judgment of conviction entered in the Campbell Circuit Court sentencing him to life imprisonment for the murder of his wife. KRS 507.020.

Appellant’s wife, Diane Camm Murtaugh, disappeared on January 20, 1977. Four days later, her dismembered body was discovered buried in a snowbank in rural Campbell County. The severed limbs were not found with the buried torso.

Kevin Murtaugh initially professed ignorance of the circumstances of Diane’s death. However, after being questioned repeatedly by the police, he told a radically different story. Murtaugh alleges that he found his wife in their apartment dead of a drug overdose. To spare her family the embarrassing awareness of her use of drugs, appellant decided to make her death look like murder. He put a rope around Diane’s neck to make it appear she had been strangled. He borrowed a chain saw, put the body in the bathtub, and severed the hands, arms, and legs. After this grisly task was completed, Murtaugh smuggled the torso to his car in a blanket and removed the limbs in a garbage bag. The two bundles were buried separately in remote areas of the county.

At the conclusion of his narration, Mur-taugh was charged with murder. He then showed the police where to find the severed limbs.

Murtaugh asserts several errors on appeal. He first contends there was insufficient evidence that his wife’s death resulted from a criminal agency to support his conviction for murder. Conflicting evidence was introduced at trial as to the cause of Diane Murtaugh’s death. Dr. Paul Jolly, the Chief Deputy Coroner of Hamilton County Ohio, testified that he made a postmortem examination of the body. Dr. Jolly described injuries found on the body: there were two bruises on the head, two small tears and some bruises in the genital area, and internal and external bruises on the neck. Dr. Jolly testified that all these injuries were inflicted prior to Diane’s death, because bruising would not have occurred had the heart not continued to beat after the blood vessels were damaged. Dr. Jolly expressed the opinion that the cause of death was strangulation.

Dr. Jolly recounted the findings of the toxicological analysis of Diane Murtaugh’s blood. The tests revealed an alcohol concentration of .07%; they also showed the presence of a depressant known as placidyl. Dr. Jolly stated that the four milligram percent concentration of placidyl present in the body is a concentration capable of producing death in about 2% of the human population. He repeated his opinion that death was caused by strangulation rather than by a drug overdose.

The defense called two expert witnesses on the issue of cause of death. Dr. Charles Winek, a toxicologist, testified that the level of placidyl found in Diane Murtaugh’s body could have caused her death. Dr. Winek was unable to state whether placidyl had in fact caused her death.

Dr. Cyril Wecht, Coroner of Allegheny County, Pennsylvania, testified that he had reviewed the autopsy findings on Diane Murtaugh and had concluded that she died of an overdose of placidyl.

Murtaugh contends the trial court erroneously overruled his motion for a directed verdict of acquittal. He relies on the established proposition that the evidence proving the corpus delicti must be more consistent with guilt than with innocence; the prosecution must prove the cause of death with competent, probative evidence. Appellant submits that his conviction rests on mere suspicion or conjecture, because there was no evidence connecting him with his wife’s death.

While it is true that mere suspicion will not sustain a conviction, the jury’s verdict cannot fairly be described as one based on conjecture. Therefore, the numerous cases cited by appellant are inapposite. The jury had before it the testimony of Dr. Jolly, who performed the autopsy, that Diane was strangled to death. It also heard testimony to the effect that Diane and Kevin Murtaugh did not get along well; that they had separated for a period of time and had been reconciled a very short time before Diane’s death; that while they were separated, Diane went to Texas with another man; and that Kevin once broke the door to Diane’s apartment. The bruises and lacerations on Diane’s body were evidence of an assault on her. Finally, the jury had before it Kevin’s admitted dismemberment of his wife’s body. His attempt to conceal her death could reasonably be interpreted as circumstantial evidence of guilt. See Fugate v. Commonwealth, Ky., 445 S.W.2d 675 (1969).

Although there was evidence which indicated that death may not have been caused by criminal agency, the jury was entitled to weigh the conflicting evidence. “When there is any evidence, direct or circumstantial, to establish the corpus delicti, it is for the jury to pass upon its sufficiency.” Levering v. Commonwealth, 132 Ky. 666, 117 S.W. 253 (1909). The rule has been more recently stated as follows: “If under the evidence as a whole it would not be clearly unreasonable for a jury to find a defendant guilty, he is not entitled to a directed verdict of acquittal.” Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). The verdict of the jury in this case was not unreasonable.

Murtaugh next asserts the trial court erred in failing to suppress his admission that he dismembered his wife’s body. He argues that he was unlawfully detained for questioning by the police, and that the admission, being the fruit of that unlawful detention, should not have been introduced in evidence.

On the day of Diane’s funeral, Murtaugh was asked by the police to accompany them to his apartment. He willingly did so. When the officers completed their search of the apartment, they asked him to go to the Commonwealth’s Attorney’s office, and again he cooperated with them. At the Commonwealth’s Attorney’s office, Mur-taugh was read his rights and informed he was a suspect, but he was not arrested. Several hours later, Murtaugh told police that he had cut his wife’s body up and hidden it. He was then arrested and charged with murder. Later, he signed a written statement detailing the circumstances of the death and dismemberment and then voluntarily videotaped the same statement. The videotape was offered in evidence by the prosecution.

Appellant does not argue that his Fifth Amendment rights were violated, and it is undisputed that he was informed of those rights in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). His argument goes only to the Fourth Amendment protection against unreasonable search and seizure. We find it unnecessary to determine whether Murtaugh was illegally detained. Even a confession obtained following an unlawful detention may be admissible evidence, provided the statement was “sufficiently an act of free will to purge the primary taint of the unlawful invasion.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). See also Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The sole question relevant to a determination of whether Murtaugh’s statement was admissible under the Fourth Amendment is whether that statement was voluntarily given. “The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case,” Brown V. Illinois, supra, 422 U.S. 590, 95 S.Ct. at 2261.

The trial court held an extensive in-chambers hearing on the voluntariness of Murtaugh’s admission and determined that the admission was an act of free will. The trial court considered all the circumstances surrounding the making of the statement, including Murtaugh’s cooperative attitude and his willingness to accompany the police to the courthouse, his background and relatively high intelligence, and the absence of coercion by investigating officers. We are unable to say that the findings of the trial court were clearly erroneous.

Murtaugh’s third assignment of error goes to the admission into evidence of the saw with which he severed his wife’s limbs. He argues that he was charged with murder, not with dismemberment, and that the saw had no probative value on the issue of whether he committed murder. Appellant submits that introduction of the saw constituted prejudicial error.

We agree that the saw was not relevant to any issue in the case, inasmuch as Mur-taugh was not charged with murder by dismemberment, and that it should not have been allowed into evidence. However, we cannot see how Murtaugh was prejudiced by its admission into evidence. He freely admitted that he strangled and dismembered Diane’s body. Since the act of dismemberment by chain saw is so disgusting and reprehensible by its very nature, it is unlikely that the admission of the chain saw into evidence intensified those emotions to any appreciable extent in the minds of the jurors. Therefore, we decline to reverse Murtaugh’s conviction on that basis.

Appellant’s final contention is that the trial court erroneously admitted hearsay testimony. Detective John Conley testified that Ronald Moran, the man Diane dated during her separation from her husband, related several details about the Mur-taughs’ relationship. . Moran said Diane told him that Kevin beat her up and threatened to kill her. • Moran also claimed that Diane had tried to take an overdose of pills while they were dating.

No objection was made to the introduction of this hearsay testimony. The probable reason for that silence is apparent: part of the evidence tended to support the defense theory of drug overdose. Because the issue was not raised in the trial court, no error was committed. See Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (1977).

The judgment is affirmed.

All concur.


author: HOWERTON, Judge. WINTERSHEIMER, Judge,

text:
    KENTUCKY REGISTRY OF ELECTION FINANCE, Appellant, v. LOUISVILLE BAR ASSOCIATION, Andrew E. F. Anderson, Individually, and as Representative of a Class Consisting of all Registered Voters in Jefferson County, Kentucky, Eligible to Vote for Judicial Candidates at the 1977 Elections, Appellees.
    Court of Appeals of Kentucky.
    Original Opinion Withdrawn and Reissued March 30, 1979.
    Opinion Rendered April 7, 1978.

      Allen Prewitt, Jr., Frankfort, for appellant.
    William H. Gorin, Frankfort, Victoria Ann Ogden, William T. Warner, Louisville, for appellees.
    Before HOWERTON, WILHOIT and WINTERSHEIMER, JJ.
   HOWERTON, Judge.

The Kentucky Registry of Election Finance, hereinafter referred to as “Registry,” appeals from a declaratory judgment which held that the Louisville Bar Association, hereinafter referred to as “Bar Association,” could publish the results of its judicial qualification poll, with certain restrictions, by use of an advertisement paid from its corporate funds. The Registry argues (1) that KRS Chapter 121 and § 150 of the Kentucky Constitution prohibit the expenditure of any corporate funds for the direct or indirect benefit of any candidate for public office, and (2) that publication of the results of a poll of lawyers aids in the election of the favorites of the poll in violation of the Corrupt Practices Act.

In defense of the judgment of the trial court, the Bar Association argues (1) that it has a duty to advise the lay public of the qualifications of candidates for judicial office, (2) that publication of a poll concerning qualifications of all candidates is not presented in support of any one candidate, and (3) the state’s interest in preserving the integrity of elections and avoidance of corrupt practices does not justify the denial of the right of the Bar Association to publish and the voters to receive the information. The Bar Association also points out that the judgment required that any advertisement be in a “proper, dignified, and tasteful form in accordance with the requirements of the American Bar Association Code of Professional Responsibility; and further provided that any such paid advertisement shall not contain any language which in actuality, or upon fair construction, endorses, expresses a preference for, or advocates the election of any judicial candidate.”

The controversy began when the Bar Association requested an interpretation by the Registry of the legality of a publication of the poll by means of a paid newspaper ad. The registry issued an opinion to the effect that the dissemination of the results of the poll through the news media would not be prohibited, but that publication by means of a paid newspaper ad would violate certain provisions of the statute. Thereafter, the Bar Association sought a declaratory judgment. The case was submitted to the trial court on the pleadings and oral arguments.

The appropriate statute in question is KRS 121.025. It provides in part:

No corporation, and no officer or agent of a corporation on its behalf, shall contribute, either directly or indirectly, any money, service or other thing of value towards the nomination or election of any state, county, city or district officer, or pay, promise, loan or become pecuniarily liable in any way for any money or other valuable thing on behalf of any candidate for office at any election, primary or nominating convention held in this state.

The appropriate portion of § 150 of the Kentucky Constitution reads:

and if any corporation shall, directly or indirectly, offer, promise or give, or shall authorize, directly or indirectly, any person to offer, promise or give any money or anything of value to influence the result of any election in this state, or the vote of any voter authorized to vote therein, or who shall afterward reimburse or compensate in any manner whatever, any person who shall have offered, promised or given any money or other thing of value to influence the result of any election or the vote of any such voter, such corporation, if organized under the laws of this Commonwealth, shall, on conviction thereof, forfeit its charter and all rights, privileges, and immunities thereunder; .

The language of the statute and the Constitution is simple and quite clear. There are no provisions for any exceptions, including incorporated bar associations. Contributions from corporate funds which directly or indirectly promote a candidate for public office are prohibited.

The Bar Association did not attempt to establish any committee for soliciting and using voluntary contributions of its members, which is apparently permissible. Pipefitters Local Union 562 et al. v. United States, 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972). Also, such contributions are not expressly prohibited by the Kentucky Corrupt Practices Act. Furthermore, the Bar Association did not register as a committee for any particular candidate, which is required if a group supports a candidate.

The trial court specifically found that the “intent, and primary and principal effect of the . . . publication of the results of its judicial poll is to inform the electorate of the qualifications of judicial candidates, in an objective manner without preferential declaration or endorsement of any such candidate.” We do not determine this finding to be clearly erroneous, but for the sake of deciding and discussing this case, we will concede that publication of a poll of any kind could provide at least some indirect help to the leader or winner. We have, therefore, agreed with everything the Registry has had to offer by way of fact and argument in its favor.

What then does the Bar Association present to offset the case of the Registry? The first argument relates to Canon No. 8 of the American Bar Association Code of Professional Responsibility which is entitled, “A Lawyer Should Assist in Improving the Legal System.” It is true that lawyers are in a unique position to evaluate the qualifications for judicial candidates, and they should assist the legal system and the general public by supporting good candidates and making known the truth about their qualifications. They may do this alone or collectively through an association. The association must comply with any laws pertaining to incorporated organizations, however.

The Code of Professional Responsibility may explain why the Bar Association conducted the poll and desired to publish it, but the code alone cannot justify the act. The code is primarily a guide for lawyers in the way they must conduct themselves, and it is an aid to them in developing true self-discipline and professionalism. It is no more appropriate for a bar association to assist in informing the public regarding the qualifications of judicial candidates than it would be for a medical association to inform the public regarding qualifications of candidates for the office of coroner, or for an association of C.P.A.’s to run an advertisement on the merits of candidates for state auditor.

For the purposes of this decision, we have conceded that the publication of the poll did involve the expenditure of corporate money, and it did benefit one or more of the candidates, at least indirectly. We must then ask, was this activity in actual violation of the true meaning and intent of the Kentucky Corrupt Practices Act and the Kentucky Constitution? For the reasons hereinafter expressed, we conclude that it would not be a violation under the facts in this case, if the paid advertisement was presented according to the terms of the judgment of the trial court. An even more basic question is whether or not the restrictions on free speech and free press sought to be imposed by and through KRS 121.025 and § 150 of the Kentucky Constitution abridge the rights that the First Amendment of the U. S. Constitution was meant to protect? At least as to the facts and circumstances in this case, we conclude that they do.

The Registry cited LaBelle v. Hennepin County Bar Association, Minn., 206 Minn. 290, 288 N.W. 788 (1939) as “the leading case in this country with respect to political activities by incorporated bar associations.” LaBelle does involve many similarities with this case. The Hennepin County Bar Association was permitted to conduct a judicial preference poll, and it was also permitted to publish the results through a press conference without being in violation of the Minnesota Corrupt Practices Act. Our Registry is of the opinion that such activity is also lawful under the Kentucky Corrupt Practices Act, but that it would be unlawful to publish the results of the poll by way of a paid advertisement. The Minnesota court never reached the question of a paid advertisement in LaBelle.

The Bar Association cites Pecora v. Queens County Bar Association, N.Y., 46 Misc.2d 530, 260 N.Y.S.2d 116 (1965) as its “leading case.” The Queens County Bar Association established minimum qualifications for all judges, together with a method of evaluating candidates. The evaluations were published, and in some cases certain candidates were actually endorsed by the association. A judicial candidate brought suit alleging that the action of the Bar Association violated the election laws of New York. The court examined the purpose of the statutes and found that they were for the prevention of inordinate corporate influence on elections and not for interference with otherwise legitimate and authorized activities in the public interest. The court also reasoned that the statutes were penal in nature, and that they thus required a strict and narrow construction. The Queens County Bar Association was found to be performing a public function in accordance with its own canons, and acting with a primary purpose of aiding the administration of justice by seeking the election of qualified judges.

KRS 121.990 provides severe penalties and sanctions upon corporations and their officers who violate KRS 121.025. Section 150 of the Kentucky Constitution is also penal in nature. Only a very strict interpretation of the Corrupt Practices Act would find that the Bar Association was in violation under the circumstances of this case. We do not strictly construe the statute against the Bar Association, but against the Commonwealth. Also, when a state regulation such as the Corrupt Practices Act seeks to infringe on fundamental First Amendment rights in the interest of advancing a legitimate state interest, the courts require that the regulation be narrowly drawn to accomplish the purpose for which it is intended. Keyishian v. Board of Regents of the University of New York, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). The courts also insist that there be what is characterized as a “relevant correlation” or “substantial relation” between the governmental interests involved and the restrictions sought to be imposed. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

In this case, the Registry seeks to enforce the state’s interest of preserving the integrity of the election process by prohibiting paid publications, but not by prohibiting free publications so long as a free press release is available. This seems to be a distinction without a difference. The Registry has not made any explanation or presented any rationalization as to how the mere publication by paid advertisement of the results of the judicial qualification poll will adversely affect the integrity of the electoral process while the publication of the results by a press conference will not. We find no “relevant correlation” or “substantial relation” between the protection of the integrity of elections, or even the protection of minority interests in the Bar Association, and the prohibition of the paid publication of the poll. As far as corporate funds are concerned, the Bar Association had to spend money to take the poll, and if a paid staff member participated in a press conference to release the results, this too, would involve some expense.

Publication of the results of the Bar Association poll, by paid advertisement or press conference, as well as the receipt of the information by the appellee, Anderson, and the class of voters he represents, are fundamentally protected rights under the First and Fourteenth Amendments to the Constitution of the United States, as well as under § 1 of the Kentucky Constitution. It is well established that paid advertisements, even those involving “commercial speech” are entitled to First Amendment protection. New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The protection also extends to the right of the public to receive information and ideas. Virginia State Board of Pharmacy v. Virginia Citizens’ Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).

Any time free speech and free press are to be suppressed, the reasons for such suppression must be subjected to close scrutiny. The burden is on the government to show the existence of such an interest. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In this case, the Registry has offered no reason why the publication of the poll may not be made, except that it is in violation of a narrow interpretation of the statute and the constitution because corporate funds were involved in the payment of the advertisement.

Perhaps the best and most recent authority on this subject is First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). At the outset, we will note that the Bellotti case may be distinguished from this action on several grounds. The primary distinguishing factor is that the Bellotti case was concerned with a corporation spending its own funds to speak out on an issue it felt would affect its business. The issue was to be voted on by Massachusetts voters. In the case before this court, we are concerned with corporate funds being used to advertise an opinion poll regarding the qualifications of judicial candidates to be elected by Kentucky voters. The principles discussed in Bellotti, however, are important and pertinent in our case. One principle was that the inherent worth of protected speech is not affected by reason of its emanating from a corporate source. “If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” Bellotti, supra, at 777, 98 S.Ct.. at 1416.

We have an additional concern when we consider the narrow interpretation requested by the Registry. If we should decide that the action of the Bar Association violates the Corrupt Practices Act, we might also have to consider that editorials in favor of a particular candidate or issue by a corporately owned newspaper would also be proscribed. Expenditure of corporate funds in the publication of the results of any poll involving political candidates or public issues might also be illegal. Chief Justice Burger, in a separate concurring opinion in Bellotti, supra, expressed similar concerns. The Chief Justice stated that “a disquieting aspect of Massachusetts’ position is that it may carry the risk of impinging on the First Amendment rights of those who employ the corporate form — as most do — to carry on the business of mass communications, particularly the large media conglomerates.” Bellotti, supra, at 796, 98 S.Ct. at 1426. The Chief Justice made it quite clear that freedom of the press and freedom of speech apply not only to individuals but to corporations and “any definable category of persons or entities: it belongs to all who exercise its freedoms.” Bellotti, supra, at 802, 98 S.Ct. at 1429.

The purpose of both the constitutional and statutory provisions appear to be for the prevention of the exertion of unwarranted and perhaps unwholesome influence over political affairs by corporations formed for profit. These corporations often have at their disposal large sums of money capable of being used to further corporate fortunes through promoting the aspirations of selected candidates. The activities of the Louisville Bar Association in this case clearly do not fall within the conduct sought to be avoided by our laws. There has been no corruption of candidates or vote buying by corporate contributions, and we cannot see any need for protection of the individual members of the Bar Association in this situation.

Without a greater showing of danger to the public interest than has been shown to exist in this case, we must conclude that the proposed application of KRS 121.025 and § 150 of the Kentucky Constitution prohibiting the expression of thought through the Bar Association’s paid advertisement would be incompatible with the freedoms secured by the First Amendment of both the Kentucky and the United States Constitutions. Specifically, we decide that with a proper interpretation of KRS 121.025 and § 150 of the constitution, neither was intended to prohibit the paid publication as provided for in the judgment of the trial court; but, if we were unable to reach that conclusion, we would be compelled to reach the same result on the basis of the First Amendment issue.

The judgment of the Franklin Circuit Court is affirmed.

WILHOIT, J., concurs.

WINTERSHEIMER, J., dissents.

WINTERSHEIMER, Judge,

dissenting.

I respectfully dissent.

KRS 121.025 and the Kentucky Constitution, Section 150, specifically prohibit the use of corporate funds, either directly or indirectly, for the nomination or election of any state officer, including judicial officers. These statutory and constitutional sections are absolute and do not provide for any exceptions. KRS 121.025 is a simple and clearly worded statute which does not lend itself to any other interpretation because of the plainly stated language used by the legislature. It is the obligation of the courts to uphold the clear language of the law and not to impose unnecessary “judicial legislation” by means of interpretation of what has been clearly defined by statute.

No challenge is made by the Registry of Election Finance to the promulgation of the Bar poll by means of a press conference or press release, or by other internal or external means. The sole objection by the regulatory agency is the use of corporate funds in contravention of Kentucky law.

The need for information by the voting public on all public questions is abundantly clear. To apply the language used by Justice Rehnquist in his dissent in the case of Bellotti, supra, the free flow of information is in no way diminished by the regulatory requirement of legislation here. The meritorious goal of a better informed electorate does not justify the avoidance of the clear meaning of the law. Lawyers and legal organizations have the highest obligation to observe the letter of the law and its spirit.

This Court can only decide what is immediately before it. We cannot indulge in speculation as to what would result from a challenge to other types of corporate political activity. This Court and the American tradition of jurisprudence clearly respect the rights of the press to free expression, but to insert the fallacious issue of freedom of the press in this case is totally unnecessary.

Here, the solution is relatively simple and could be achieved by the formation of a committee for the express purpose of informing the electorate of the Association’s poll results. Additionally, the regulations could be amended administratively or by legislative action.

Philosophically, I would agree with the conclusions in an article in the American Bar Journal, June 1978, Page 814, that only real persons should debate and determine public policies. Treatment of corporations as persons is a legal fiction.

Because it seems that both parties are well-intentioned and the election in question is long since over, the resolution of this dispute might be better accomplished by arbitration and compromise rather than by involving the courts in such a question.


author: WHITE, Judge.

text:
    HARTFORD INSURANCE GROUP, Appellant, v. CITIZENS FIDELITY BANK & TRUST COMPANY and Leroy J. Kastlehun, Appellees.
    Court of Appeals of Kentucky.
    Opinion Rendered March 30, 1979.
    Ordered Published April 13, 1979.

      Edward H. Stopher, Robert E. Stopher, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellant.
    William R. Mapother, Lisa Koch Bryant, Mapother & Mapother, Louisville, for appel-lee, Citizens Fidelity Bank & Trust Co.
    Before WHITE, GANT and WILHOIT, JJ.
   WHITE, Judge.

This is an appeal from a summary judgment for Citizens Fidelity Bank and Trust Company based on a claim that Citizens was a holder in due course of a draft issued by appellant Hartford. The issue before us is whether Citizens was entitled to summary judgment.

On April 28, 1977, appellant Hartford Insurance Group issued a draft in the amount of $7,073.80 payable to one Kastlehun for damage to his home insured by Hartford. Apparently unnoticed by Hartford, the premises were subject to a first mortgage held by Southeast Federal Savings and Loan Association. Hartford alleged in its memorandum in opposition to Citizens’ motion for summary judgment that Hartford became aware of Southeast’s interest and immediately ordered the drawee bank, Connecticut Bank and Trust Company, to stop payment. Hartford further alleged that Kastlehun was advised not to attempt negotiation of the draft.

On April 29, 1977, Kastlehun presented the draft to Citizens’ Fidelity Bank and Trust Company for payment. Connecticut Bank and Trust Company returned the draft with a notation that payment had been stopped.

Citizens filed a complaint on October 20, 1977, alleging its status as a holder in due course of the draft and demanding recovery against Leroy J. Kastlehun and Hartford in the amount of $7,073.80 plus interest from April 29, 1977. Hartford filed a cross-claim against Kastlehun.

Appellees’ motion for summary judgment was denied by order of March 29, 1978. The motion was renewed and, following a hearing on April 18, 1978, the court granted summary judgment to plaintiff on April 20, 1978, against Hartford in the amount of $7,073.80 plus 6% interest per annum from April 29, 1977, until judgment and at 8% thereafter.

It is well established in Kentucky that, pursuant to CR 56.03, summary judgment:

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

See Puckett v. Eisner, Ky., 303 S.W.2d 250 (1957). A review of the record indicates that the trial court did not err in granting summary judgment.

Appellant argues that Citizens failed to meet its burden of showing that no genuine issue of a material fact existed and that it was entitled to judgment as a matter of law. In support of its position, appellant cites Roberson v. Lampton, Ky., 516 S.W.2d 838 (1974), and cases cited therein. In considering the propriety of a summary judgment, the court stated that:

[t]he true purpose of a summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the mov-ant. Id. at 840.

In view of a long line of Kentucky cases discussing standards for summary judgment, we believe that Roberson must be interpreted narrowly as holding only that summary judgment may not properly be entered before the respondent has had an opportunity to complete discovery, rather than that a movant must show that it would be impossible to produce evidence. See 7 W. Clay, Kentucky Practice, CR 56.03, Comment 4 (3rd ed. 1974); L’Enfant, Civil Procedure, 64 Ky.L.J. 357 (1976); Hayes v. Rodgers, Ky., 447 S.W.2d 597 (1969); Neal v. Welker, Ky., 426 S.W.2d 476 (1968); Tarter v. Arnold, Ky., 343 S.W.2d 377 (1960); Payne v. Chenault, Ky., 343 S.W.2d 129 (1960). It is not necessary to show that the respondent has actually completed discovery, but only that respondent has had an opportunity to do so. Here, Hartford had a period of some six months between the filing of the complaint and the date of summary judgment in which to engage in discovery, or to inform the court, pursuant to CR 56.06, why judgment should not be entered or why a ruling on the motion for summary judgment should be continued. The record contains no affidavit pursuant to CR 56.06.

The record contains only the pleadings of the parties, including the motion for summary judgment and response thereto; the only evidence in the record consists of affidavits filed by appellee in support of its claimed status as a holder in due course. Beyond the answer, no evidence contradicting the affidavits of the employees of Citizens was tendered by Hartford for consideration by the trial court.

In Neal v. Welker, supra at 479, the Court considered the burdens of the parties on a motion for summary judgment and said:

[i]t is not required that the adverse party file any sort of answer or defensive pleading or other response to a motion for summary judgment . . . . When the moving party has presented evidence showing that despite the allegations of the pleadings there is no genuine issue of any material fact, it becomes incumbent upon the adverse party to counter that evidentiary showing by some form of evi-dentiary material reflecting that there is a genuine issue pertaining to a material fact.

The Court in Neal noted that although the plaintiff there had alleged that, if given the opportunity, evidence would be produced, the plaintiff had not shown why such evidence had not been presented and had not requested a continuance to obtain affidavits pursuant to CR 56.06. Id. at 479-480. The requirement of producing evidence that a genuine issue of material fact exists gained further support in Hayes v. Rodgers, supra at 600, wherein the Court said:

Kentucky follows the view “that the party opposing the motion for summary judgment may not rely upon his pleadings alone to make an issue of fact, but is required in the proper case to make some showing to offset the impact of the matters presented in support of the motion.” Clay, CR 56.05, Comment 4.

The failure of Hartford to present evidence in contradiction to that presented by Citizens in support of its motion for summary judgment is not in itself sufficient to justify summary judgment. Even though there may be an absence of controverting evidence, the evidence presented by the moving party must be of such a nature that no genuine issue of fact remains to be resolved.

Both parties admit that if Citizens was a holder in due course as defined in KRS 355.3-302, Citizens would prevail over Hartford, the issuer of a draft on which a stop-payment order was given. Hartford argues, however, that there was insufficient evidence on which the trial court could base its finding that no issue of material fact existed as to Citizens’ status as a holder in due course. It is stated that the allegations in the affidavit of Sheryl Yeager, a teller at the branch bank where the draft was presented, and in the affidavits of Robert L. Turner, the branch manager, were conclusions of law by laymen and as such were not admissible as evidence. CR 56.05. We need not consider whether certain allegations in the affidavits constituted legal conclusions, for we find sufficient, competent, factual statements in the affidavits upon which the trial court could reasonably have based its judgment. Evidence in the affidavit of Yeager that could properly have been considered by the court included the statements that she noticed no irregularities on the face of the draft; she instructed Kastlehun to obtain the approval of the bank manager before she could accept the check; the appellee Citizens follows this customary procedure for drafts drawn on out-of-town banks for sums exceeding $300.00; approval was received; and Yeager gave Kastlehun a cashier’s check for $6,500.00 and cash of $573.80. The affidavits of Turner contained the competent evidence that he was manager of the branch which accepted the draft; he personally approved the draft; $7,073.80 was given to Kastlehun in the form of either cash or cash and a cashier’s check; there were no defects or irregularities on the draft; he had no notice of any defenses; he had known Kastlehun for four years; Kastlehun had been a customer of that branch for 16 years; in the four years affiant had been manager, Kastlehun had never been overdrawn or written a check on insufficient funds; affiant had no knowledge that Kast-lehun had ever been overdrawn or written a bad check; and the draft was not deposited to the account of Kastlehun.

To qualify as a holder in due course, Citizens had to prove that it was a holder who had taken the draft for value, in good faith, and without notice that it was overdue or had been dishonored or of any defense or claim to it on the part of any person. KRS 355.3-302. Evidence of each of these elements was contained in the affidavits of Yeager and Turner as discussed above. As there was no evidence in the record contradicting any of the facts presented by Citizens, the trial court could reasonably have concluded as a matter of law that Citizens was a holder in due course. Under KRS 355.3-307(3) Citizens would have the burden of proving its status as a holder in due course in all respects only if the evidence had shown that a defense existed. As no defense was alleged in response to the motion for summary judgment and supporting affidavits, Citizens needed to go no further than the uncontro-verted statements of fact in the affidavits.

Hartford states that Citizens did not set forth all the circumstances surrounding the transaction. The record contains allegations which the trial court found sufficient to support the position of Citizens in its motion. If Hartford was aware of any other material circumstances, it should have offered some form of evidence of such circumstances beyond the general denial of its answer or should have sought relief pursuant to CR 56.06.”

We are of the opinion that the trial court did not err when it found no genuine issue of material fact to exist and that appellee Citizens was entitled to judgment as a matter of law.

The judgment is affirmed.

All concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    ST. LOUIS COUNTY WATER COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent, Hazel BEAMAN, Respondent, v. James F. CONWAY et al., Appellants.
    Nos. 40054, 40405.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 16, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.
    Application to Transfer Denied May 17, 1979.
    George E. Lee and Doris J. Banta, St. Louis, for St. Louis County Water Co.
    Jack L. Koehr, City Counselor, Judith A. Ronzio, Asst. City Counselor, St. Louis, for James F. Conway et al.
    Karen Tokarz, St. Louis, for Hazel Bea-man.
    L. Russell Mitten, II, Missouri Public Service Commission, Jefferson City, for Public Service Commission.
    John H. Hendren, Hendren & Andrae, Jefferson City, amicus curiae, for St. Joseph Water Co. and Capital City Water Co.
   ALDEN A. STOCKARD, Special Judge.

These two cases have been consolidated by this court for purposes of appeal. Each case is a suit for a declaratory judgment requesting a declaration of the validity and, if valid, a construction, of § 319.015(3), 1976 Supp. to Mo.Rev.Stat.1969.

Senate Bill No. 583 of the 78th General Assembly was entitled “An Act relating to the protection and safety of the public by providing notices to operators of underground facilities through regulation of demolition, excavation and blasting.” The provisions of Senate Bill 583, as finally enacted and approved, are now designated as § 319.-010 through § 319.050, 1978 Supp., V.A. M.S., and are hereafter referred to as the “Act.”

In order to place the challenged provision of § 319.015(3) in proper context we shall quote or set forth the substance of the other provisions of the Act.

Section 319.010 provides that the Act shall be known as “the underground facility safety and damage prevention act.”

Section 819.015 contains a definition of terms. In paragraph (1) there is a definition of the term “excavation,” and in paragraph (2) the term “Person” is defined to mean “any individual, firm, joint venture, partnership, corporation, association, municipality, governmental unit, department or agency and shall include any trustee, receiver, assignee or personal representative thereof.”

Paragraph (3) defines “underground facility.” We shall set forth the paragraph in its entirety, but the portion we italicize was added as an amendment in the House after the bill had been passed by the Senate. It was then subsequently agreed to by the Senate.

“ ‘Underground facility’ means any item of personal property which shall be buried or placed below ground for use in connection with the storage or conveyance of water, sewage, electronic, telephonic, or telegraphic communications, electric energy, oil, gas or other substances, and shall include but not be limited to pipes, sewers, conduits, cables, valves, lines, wires, manholes, attachments and those portions of poles below ground. All underground facilities within any public street, alley, right-of-way or easement shall be fully maintained by the public utility, municipal corporation or other person providing said service.

Section 319.020 provides that within 30 days after the effective date of the Act “every public utility, municipal corporation or other person having underground facilities in any public street, alley, right-of-way dedicated to the public use or other location by easement shall file with the recorder of deeds * * * and with the clerk of any municipality of the state having a population of two thousand or more in which it is doing business, the job title, address and telephone number to which telephonic or written inquiries concerning the location of underground facilities may be addressed.”

Section 319.025 requires that a person shall not make or begin any excavation in any public street, alley, or right-of-way dedicated to the public use or easement “without first giving notice to and obtaining information from each and every public utility, municipal corporation or other person having such underground facilities * * concerning the possible location of any underground facility.”

Section 319.030 provides: “Every person owning or operating an underground facility shall, upon request as provided herein by a person intending to commence an excavation, inform such excavator as promptly as practical, but not in excess of two normal working days from receipt of the notice, unless otherwise mutually agreed, by some reasonable and customary means of the correct location of underground facilities in or near the area of the excavation so as to enable the person engaged in the excavation work to locate the facilities in advance of and during the excavation work.” Other sections, not particularly relevant to the issue presented, provide that obtaining the information required by the Act does not excuse any person for failure to perform any excavation in a careful and prudent manner; that if damage to an underground facility occurs, failure to comply with the Act shall be a rebuttable presumption of negligence: that in the event of damage to an underground facility the person responsible shall immediately notify the owner or operator thereof; and that emergency situations are exempt from the Act.

St. Louis County Water Company (hereafter “The Company”) is a public utility subject to regulation by the Missouri Public Sérvice Commission (hereafter “Commission”) and is engaged in the business of processing, distributing and selling water in St. Louis County. The water is distributed through a system of water mains, most of which are buried underground. The Company has in the past required by rule, approved by the Commission, that a customer desiring to be supplied with water must, at his expense, provide his own water service line which is thereafter owned and maintained by the customer. The service lines are usually buried under the ground, and portions of the service lines, in order to reach the Company’s main, must be in a public street, alley, right-of-way or easement.

After the Act became effective, the Commission’s staff filed a complaint with the Commission in which it requested that the Commission prescribe a regulation which would require the Company to fully maintain all underground facilities used in providing its water to customers which are located within any public street, alley, right-of-way or easement. The staff of the Commission also sought authority to file an action for statutory penalties to be assessed against the Company on the theory that by continuing to enforce its rule it was failing to comply with the law.

In its petition for declaratory judgment the Company asserts, among other things, that the Act is in violation of Article III, § 23, Constitution of Missouri, which requires that no bill shall contain more than one subject which shall be clearly expressed in its title.

Hazel Beaman is the owner of property located at 1415 Bremen in the City of St. Louis. She receives water at said place from the Water Division of the Department of Public Utilities of the City of St. Louis. In August 1977, the water service to the Beaman property was terminated by the City of St. Louis because of a leak in the service pipe located under the street in front of the Beaman property, and she was notified that the Water Division would not repair the leak and would not restore water service until the leak was repaired.

Hazel Beaman filed suit and alleged in Count I of her petition, an action for a declaratory judgment, that § 319.015(3) requires the City of St. Louis to make the repairs to correct the leak in the service line located in the public street and which supplies water to her building. Other counts were held in abeyance by agreement of the parties and the judgment on Count I was designated an appealable judgment pursuant to Rule 81.06.

Article III, § 23, Const, of Mo., provides that “No bill shall contain more than one subject which shall be clearly expressed in its title” with certain exceptions not here applicable. “The object of the requirement is that ‘the title, like a guideboard, indicate the general contents of the bill, and contain but one general subject, which might be expressed in a few or a greater number of words.’ State ex rel. Normandy School District of St. Louis County v. Small, * * * 356 S.W.2d 864, 864-869 [Mo. banc 1962].” 508 Chestnut, Inc. v. City of St. Louis, 389 S.W.2d 823, 828 (Mo.1965). The evil to be avoided by this constitutional requirement is the imposition upon the members of the legislature and interested people that they be required to painstakingly search through the language of bills to determine whether there is something there adverse to their interest. “By requiring an ‘honest’ title— one which is not designed as a cover — the legislators will not be misled into overlooking or carelessly or unintentionally voting for vicious and incongruous legislation, and interested people will be notified of the subjects of legislation being construed in order to have an opportunity to be heard thereon.” 508 Chestnut, Inc. v. City of St. Louis, supra at p. 829.

The title may be expressed in a few words when the constitutional requirement can in that way be met, but even though a few words might suffice, where the title “descends to particulars the particulars stated become the subject of the act [and the Act] which must conform to the title as expressed by the particulars. ‘Where the title goes into such detail as would reasonably lead to the belief that nothing was included except that which is specified then any matter not specified is not within the title. Any such matter beyond the title is void * * State ex rel. Fire Dist. of Lemay v. Smith, 353 Mo. 807, 184 S.W.2d 593, 596 [1945].”

The title of Bill No. 583 is not general. It refers to “the protection and safety of the public” but it does not stop there. Instead, it adds: “by providing notices to operators of underground facilities.” There then follows a phrase of somewhat doubtful meaning, but apparently intended to state that the “protection and safety” is to be provided by “notices to operators of underground facilities” through the process of “regulation of demolition, excavation and blasting.” The use of these particulars results in them becoming the “subject of the Act,” and the contents of the Act “must conform to the title as expressed in the particulars.” The words of the title could not possibly be construed to include or to refer to the imposition of a duty on a “public utility, municipal corporation or other person,” which provides “such service,” to “fully” maintain property of which it is not the owner. Although the language of the amendment to paragraph 3 of § 319.015 is of questionable meaning, any reasonable construction is totally foreign to and outside the limits of the particulars constituting the subject of the Act.

The House amendment, inappropriately made to the section specifically stated to relate to definitions, and to paragraph (3) thereof which is specifically stated to relate to the meaning of the term “underground facilities,” presents the precise situation that Article III, § 23 of the Constitution was designed to prohibit. No reasonable person could read the title and have reason to believe or suspect that somewhere in the bill there was a provision imposing a duty on the suppliers of “such service” to assume “full maintenance” of the property of others. The amendment is “beyond the title,” and for that reason violates the provisions of Article III, § 23 Constitution of Mo., and is void.

Other challenges are made to the validity of the amendment, which we do not consider to be without merit, particularly the challenge that the amendment constitutes an unconstitutional taking of property without due process of law. We do not need to rule these other challenges in view of the result we have reached.

The judgment in each case is reversed and the causes remanded for the entry in each case of a declaratory judgment according to the views here expressed.

DOWD, P. J., and CRIST, J., concur.


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. Michael Edward FELTON, Appellant.
    No. 38206.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 23, 1979.
    Motions for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.
    Application to Transfer Denied May 17, 1979.

      Richardson & Carnasiotis, Scott Richardson, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Gordon L. Ankney, Asst. Pros. Atty., Clayton, for respondent.
   CLEMENS, Judge.

A jury found defendant Michael Felton guilty of robbery and rape. As a prior felon, defendant was sentenced by the court to imprisonment for concurrent terms of ten and twenty-five years. On appeal, defendant first contends the court erred in admitting his photograph into evidence because it was not disclosed before trial. Defendant also contends the court coerced the jury during prolonged deliberations.

We consider defendant’s objection to the identifying photograph in the light of the state’s evidence: Defendant burglari-ously entered the victim’s home, raped her and stole money orders. A bystander saw defendant approaching the home and the victim viewed him when raped. Both witnesses identified defendant from a photographic display, a police lineup and in court. Later, on the day of the offenses, an unidentified man using defendant’s driver’s license, cashed a stolen money order while buying shoes. The defense was alibi.

As said, defendant complains of the undisclosed use of an identification card bearing his photograph that came in during his evidence. On direct examination the victim had described defendant’s clothing, one item being an off-white, short-brimmed hat. The challenged photograph first came into question during the state’s cross examination of a defense witness, a police officer who testified defendant carried the photograph when arrested. It was so identified but not then offered. Next, on cross examination defendant said he never wore hats, but the photograph did show him wearing a light-colored, short-brimmed hat, just as the victim had testified. Defendant objected to the photograph on the ground it had not been disclosed in response to his purported request for discovery.

We find no error in the trial court’s having admitted the photograph over the objection of non-disclosure. First, defendant’s transcript contains no requests for disclosure, so we decline to speculate on the alleged non-disclosure. There is no adequate basis for considering defendant’s appellate contention. State v. Simpson, 529 S.W.2d 19[1, 2] (Mo.App.1975). Second, from counsels’ colloquy the trial court could have concluded that before trial the state did make available to defendant all of his personal effects, which included the challenged photograph. We find no wrongful non-disclosure. Compare State v. Gadbury, 558 S.W.2d 426[3] (Mo.App.1977). In sum, the trial court’s ruling, a discretionary one, was not fundamentally unfair to defendant. See State v. Broyles, 559 S.W.2d 614[2] (Mo.App.1977).

By defendant’s second point he contends the trial court should have declared a mistrial because it had coerced the jury into reaching its verdict. The jury deliberated for eleven hours. The trial had lasted four days, sixteen witnesses had testified and some had been recalled. The transcript contains almost 400 pages of testimony.

After deliberating for six hours the jury sent out a note saying it was deadlocked. The court brought the jury in and learned that numerically they stood nine-to-three. The court then read MAI-CR 1.10, the so-called “hammer instruction.” Three hours later, upon the court’s inquiry, the jury reported that numerically they stood eleven-to-one. The jury was returned for further deliberations and an hour later brought in the guilty verdict.

Defendant points to the reasoning of other courts in condemning the so-called hammer instruction, but concedes its approval in Missouri. He also concedes that its effect here, standing alone, is remote since the verdict came in more than» four hours later. The court’s inquiries of the jury as to its progress toward reaching a verdict were responsive to defense counsel’s repeated motions for a mistrial on the asserted ground the jury was incapable of reaching a verdict. ' The court’s inquiries were responsive to this, and were made with no sign of favoritism or impatience. Considering the record as a whole, we find no basis for the defendant’s contention the trial court abused its discretion by coercing the jury’s verdict.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


text:
    John George NERO, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39986.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 23, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.
    Application to Transfer Denied May 17, 1979.

      Robert C. Babione, Public Defender, John M. Putzel, Asst. Public Defender, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Brenda Farr Engel, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

Movant (hereafter “defendant”), previously having pled guilty to robbery, has appealed from the summary denial of his motion under Rule 27.26, VAMR. We have examined the guilty-plea record wherein defendant admitted in detail the factual elements of the robbery charge. The plea is regular in all respects and supports the trial court’s conclusion that defendant’s guilty plea was voluntarily and understandably made.

On appeal, by his only point relied on, defendant contends the court erred in denying him an evidentiary hearing because his “motion stated facts, not conclusions, which, if true, would establish ineffective assistance of counsel and would entitle Appellant to relief, to-wit: that Appellant’s retained counsel negligently failed to advise Appellant prior to his guilty plea that irregularities in the preliminary hearing afforded grounds on which to challenge the adequacy of the Circuit Court’s information; this failure on the part of counsel caused Appellant’s guilty plea to be involuntary in that Appellant was not fully advised of defensive courses of action available to him.” (Our emphasis.) The point is patently conclusory and does not comply with Rule 84.04(d), VAMR, by concisely stating wherein and why the court erred.

On our motion, however, we have examined defendant’s motion. The essence of his complaint is that he was denied effective assistance of counsel. He contends that after the preliminary hearing, counsel failed to challenge the subsequent information on the ground that at the preliminary hearing the magistrate denied him the right to fully cross-examine the state’s witnesses and that by so doing he “was deprived of securing testimony for impeachment purposes.”

Defendant misconceives the function of a preliminary hearing. An incidental by-product thereof may be a basis for impeaching witnesses at trial, but that is not the purpose of a preliminary hearing, which is determination of the existence of probable cause to warrant the filing of an information. See State v. Clark, 546 S.W.2d 455[2-5] so holding. In Clark the defendant contended evidence at his preliminary hearing did not warrant a finding of probable cause. In denying this contention the court held: “A preliminary examination is in no sense a trial and does not finally adjudicate the guilt or innocence of an accused. It is simply a means to prevent abuse of power by the prosecution, while at the same time to permit arrest and detention of an accused by means of a limited inquiry into whether there is probable cause that a felony was committed and that the accused was the offender. . . . The magistrate is the sole judge of the sufficiency of the evidence on these ultimate issues and — in the absence of fraud or arbitrary conduct — that determination is not subject to review by the courts. The jurisdiction of a circuit court to try for felony does not derive from the adjudication of the magistrate, but comes originally from the formal accusation by indictment or information.”

Here, we hold trial counsel was not ineffective in the trial court for his failure to raise the alleged preliminary hearing defect.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.