author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Clifford HAWKINS, Appellant.
    No. KCD 28050.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    Motion for Rehearing and/or Transfer Denied Dec. 23, 1976.

      Robert E. Stewart, Philip C. Ehli, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

Appellant was convicted by the verdict of a jury of the commission of the crime of assault with intent to rape with malice aforethought. §§ 559.180, 559.190, RSMo 1969. In accordance with the verdict the trial court sentenced appellant to four years imprisonment in the Department of Corrections.

Paraphrased from appellant’s lengthy points, his contentions for reversal are these: (1) The court erred in failing to suppress a lineup identification because his counsel and the court reporter were not permitted by an arresting officer to be present at the lineup at which the officer admitted making suggestions to the prose-cutrix; (2) that the lineup was impermissi-bly suggestive because the officer in charge had alerted the prosecutrix that appellant had shaven and had his hair cut; (3) that the court erred in excluding Defendant’s Exhibit F, a state’s request for discovery, because it showed the crime was committed at 7:40 p. m., which would prove appellant’s alibi defense inasmuch as prosecutrix’s testimony was equivocal, as contended, as to time; (4) the court erred in refusing to instruct the jury on assault without malice and common assault where the trial court stated at the close of the state’s evidence, that it would so instruct because the evidence supported the instruction; and (5) the court erred in refusing to direct a judgment of acquittal because the state did not make a submissible case of appellant’s identity, the alleged weapon used, that the assault was with malice, alibi testimony was not disputed, and prosecutrix’s testimony was imprecise and incredible as a matter of law, and was contrary to and in deviation of the amended information.

The prosecutrix testified: On the evening of September 13, 1974, at about 6:30, she left the Job Training Center in Excelsior Springs, Missouri, where she lived, to go to the grocery store. It took her normally 5 to 10 minutes to walk to the store and another 10 to 15 minutes to make her purchases, but she was not sure of the time. She then went to the post office to purchase stamps, and as she left it a green station wagon with brown wood panelling sides pulled off to the side of the parking lot and its driver motioned her to the car. He told her he was lost and needed directions and inquired of her as to what there was to do in town, and where she was going. She told him she was going back home and he asked her to get in the car. She answered, “No, I had to get back”, and he said in a demanding tone of voice, “Get in.”

Prosecutrix described the driver, who said his name was “Cliff”, as having light brown hair and a short beard, and he was wearing a T-shirt and a pair of jeans. At the time, the man was drinking a bottle of Michelob beer, and a like bottle, still moist and cool, was found about 20 feet from the scene of the crime by an investigating officer shortly after the crime was reported at 9:00 p. m. He drove for some time on the road to Prathersville, and then turned off on a dirt road, where he turned the car around and stopped, saying he had to go to the bathroom. He got out, went to the back of the car, then to her side, opened the door and told her to get out. She repeated an earlier request that he take her back home, but he told her to “get out”, which she did. He took her to the other side of the car and when she tried to pull away, he pulled a knife which she described as not “very big” and “red-handled.” The knife was identified by her and placed in evidence, it having been taken from appellant in a custodial search. After pulling the knife, the man told prosecutrix to take off her shirt and that he had used the knife before and was not afraid to do it again. She removed her clothes and he opened the back door of the car and told her to get in. She protested, and in an attempt to persuade him to leave her alone, told him she had venereal diseases. He said he did not believe her, pushed her to the seat and told her to spread her legs apart. He exposed himself and as.they struggled, he grabbed her arm, looked at her watch and told her to get dressed. She testified that she did not think she had sexual intercourse with him, but she was not sure. He took some change from her pants pocket, and as she walked over to get them, he hit her in the face. She turned to run, and fell or was tripped by him, and he stabbed her in the back, which later on treatment with a bruise and a cut on her mouth, proved to be a superficial puncture wound. He threw something in the weeds, got in the car and left.

The prosecutrix testified further that she had no idea of the then time of day, but it was “getting dusky.” She thought that about 20 to 25 minutes had elapsed from the time they left the post office until the man drove away from the scene of the assault. After that prosecutrix went across a field to a house, which she could see had a light, and asked a lady if she could use the phone. She called Mr. Schulze at the Job Center, then talked to the Excelsior Springs Police Department. The time interval for these events does not appear.

Upon being shown some photographs within the next two weeks, prosecutrix was unable to make any identification. Later, she was shown three photographs and identified appellant as her assailant. In that photograph, appellant had a beard and his hair was about the same length as it was on September 13th. The following day she identified appellant from a lineup although he did not then have a beard and his hair was combed differently. Prosecutrix made an in-court identification of appellant as the driver of the car who picked her up at the post office and who was her assailant although his appearance was then different in that “He had a beard and his hair was a little bit longer.”- Sgt. Kenneth Gamblin testified that when he transported appellant to jail on September 27, 1974, he had a full beard and longer hair, and the next day, when he conducted the lineup, appellant was clean-shaven and appeared to have shorter hair.

Prior to the lineup Gamblin asked prose-cutrix if she could identify her assailant regardless of what his appearance might be, “and she said she felt sure she could.” He told her he had shaved, but did not remember whether he told her his hair was shorter, this latter fact being elicited on cross-examination.

The lineup was conducted on a Saturday before the information was filed the following Monday. Appellant’s Point I contention arises from the fact that his counsel, although testifying that the lineup itself appeared to be proper, was not allowed in the room where the prosecutrix was when she made the identification. This contention is ruled adversely to appellant under Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), where, settling the controversy as to the law from various jurisdictions, it was held that the constitutional right to counsel does not attach until criminal proceedings are instituted as by way of indictment of a grand jury, or bv information. See also Morris v. State, 532 S.W.2d 455, 456[1] (Mo. banc 1976), in which Arnold v. State, 484 S.W.2d 248 (Mo.1972), here relied on by appellant, was at page 458 of Morris, held to be “in conflict with other decisions of this court, which are consistent with the holding in the Kirby ease on the question involved, and that it should no longer be accepted as reflecting the law in this state.”

As to appellant’s Point II, the conduct of the lineup was not unduly suggestive so as to create a “substantial likelihood of irreparable misidentification” under Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). All that transpired was that Gamblin asked prosecutrix if she could identify her assailant regardless of what his appearance might be, and it was elicited on cross-examination that he told her that the man had shaved. Under these facts, even if there was a suggestion of identification, evidence was admissible of the “totality of the circumstances” [State v. Davis, 529 S.W.2d 10, 13[1] (Mo.App.1975); State v. Parker, 458 S.W.2d 241, 243 (Mo.1970)], to determine if the in-court identification of appellant by prosecutrix had a source independent of the lineup. Here, prosecutrix had opportunity to observe appellant for some 25 minutes after he picked her up at the post office, and was riding in the car with him, it being then not quite dark. Shortly thereafter, she gave a complete, accurate description of her assailant to the police. She did not equivocate in picking appellant from photographs.. Both that identification and the lineup occurred within two weeks of the commission of the crime. These facts remove any supposed taint of the lineup identification and of course constitute an independent basis for the in-court identification. State v. Carter, 478 S.W.2d 358, 361[3] (Mo.1972); State v. Davis, supra, loc. cit., 529 S.W.2d 14[5]. Point II is overruled.

Appellant testified that on the day in question, he got off work at Avsco Plastics in Excelsior Springs at 4:00 p. m., and a fellow-worker took him to Thriftway parking lot to pick up his car, a green Chrysler station wagon, it being then 7 to 10 after 4:00. He then went to his parents out about 5 miles, consuming about 20 minutes at the most, stayed there awhile talking to his father, running some errands including trying to borrow an electric sander and washing his brother’s car, arriving back at his father’s home about 6:00 p. m., and leaving there a little after 7:00, to go to Thriftway to pick up his wife, arriving about 7:15. He parked, awaiting his wife to get off work which she did at 8:00 p. m., “or about five after.” They drove toward the babysitter to pick up their child, and appellant’s wife remembered she had forgotten something, so they went back to a Ben Franklin store near Thriftway to get it. They finally arrived at the babysitter’s at about 8:45, and stayed there about an hour or an hour and fifteen minutes.

Donald Riley, a student-employee of Thriftway on September 13, 1975, testified he saw appellant sitting in the parking lot at about 7:30 p. m. that day. Christie Monks, also an employee of Thriftway, saw appellant about 7:30 p. in. in the parking lot, and testified that his wife could not get off that early. Nita M. Duncan testified that she saw appellant in the Thriftway parking lot about 7:29 p. m., according to the store clock. Appellant’s brother testified that appellant was at and around his parents’ home from about 4:30 p. m. until about 6:30 p. m., when he left to pick up his wife at work. Appellant’s mother encountered him at the city limits of Excelsior Springs as she was going home from work 5 minutes one way or the other of 7:00 p. m., on September 13th. Appellant was then on his way to pick up his wife at Thriftway.

It is appellant’s contention under Point III that inasmuch as the state’s request that he disclose alibi information precisely stated the time of the alleged offense to be 7:40 p. m., on September 13,1975, and that prosecutrix’s testimony on cross-examination was equivocal as to time, his Exhibit F, showing the time should have been admitted. Even assuming, but not deciding, that the state is bound, as a judicial admission, by its specification under Rule 25.-34(5), of the time of the offense as 7:40 p. m., an examination of the evidence presented by appellant (above) reveals that, if believed, he was not at the scene of the offense either before, during, or after it happened. [The credibility of appellant’s alibi evidence was for the jury: State v. Turnbough, 497 S.W.2d 856 (Mo.App.1973); State v. Watson, 511 S.W.2d 890, 893[8] (Mo.App.1974).] On the other hand, prose-cutrix testified that she left her abode at the Job Center at 6:30 p. m., walked up to 10 minutes to the grocery store, spent up to 15 minuses shopping, went to the post office (time elapse not stated precisely — “just there a few minutes”), then got into the car with appellant and drove about 25 minutes to the scene of the offense. Even without the time spent at the post office, this would place the time of arrival at the scene of the offense at about 7:20 p. m. Relative to times, prosecutrix reaffirmed on cross-examination her direct testimony that she left her home at 6:30 p. m., and that it took her 5 to 10 minutes to walk to the store. At one place she testified that she had no idea how long she remained in the store, but later affirmed her direct testimony that it was 10 to 15 minutes; then she spent just a few minutes in the post office. As she left with appellant, he drove fairly slowly, she did not know how fast nor how many miles he drove, taking “maybe five, six, seven minutes. I’m not sure.” (Her direct testimony was that he drove about 25 minutes.) This latter testimony is the only real conflict therein as to times, but it does not destroy the effect of prosecutrix’s direct testimony. “The effects of conflicts or inconsistencies in any testimony are questions for the jury. State v. Turnbough, 497 S.W.2d 856, 858[5] (Mo.App.1973). The jury may believe all or none of the testimony of a witness, or may accept it in part or reject it in part, just as they may find it to be true or false when considered in relation to other testimony and the'facts and circumstances of the case. (Citing cases.).” State v. Berry, 526 S.W.2d 92, 95[3-5] (Mo.App.1975). Although time may be the essence of an offense so as to require an instruction on the subject of alibi precisely setting forth the time of day (see Notes on Use, MAI-CR No. 12.50), appellant here has not demonstrated prejudice in the mere discrepancy of prosecutrix’s testimony, where his own alibi evidence covered his whereabouts for some time before, during and after the stated time of the offense. Point III is overruled.

In appellant’s Point IV, it is contended that the court erred in failing to give instructions on assault without malice and common assault. He argues, in effect, that the error was compounded when the court, the evening before submission of the case to the jury, indicated that instructions on these subjects should be prepared. The state, however, prepared only Instruction No. 4 on assault with malice. Here the evidence is that appellant drew a red-handled knife on prosecutrix, and “he told me that he had used the knife before and he wasn’t afraid to use it again.” He then ordered her to take off her clothes and attempted to rape her while still holding the knife on her. These facts supply the requisite malice to support the submission. Compare State v. McCoy, 530 S.W.2d 8 (Mo.App.1975). The law is settled that instructions on lesser included offenses need not be given unless supported by the evidence in cases such as this (being not the same as homicide cases wherein all lesser offenses must now be instructed upon under MAI— CR). See State v. Webb, 518 S.W.2d 317, 321[4] (Mo.App.1975); State v. Jackson, 477 S.W.2d 47, 53[8] (Mo.1972); and State v. Howell, 524 S.W.2d 11, 21[10, 11] (Mo.banc 1975). Point IV is overruled.

Point V raises the issue of the sub-missibility of the state’s case. It is clear from the recitation of the above facts that all elements of the charged offense were proved: Appellant threatened prosecutrix with a knife and held it on her while attempting to accomplish the rape. His identity was positively proved. The jury was, under the evidence, entitled to find that appellant assaulted prosecutrix with a deadly weapon with intent to ravish and carnally know her forcibly and against her will, by using such force as would at all hazards overcome her resistance. State v. Comer, 296 Mo. 1, 247 S.W. 179, 181[5] (1922); State v. Williams, 324 Mo. 179, 22 S.W.2d 649, 650[2] (1929). Point V is overruled.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: ROBERT R. WELBORN, Special Judge.

license: Public Domain

text:
    A. M. S., Respondent, v. J. L. S., Appellant.
    No. 28109.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    Motion for Rehearing and/or Transfer Denied Dec. 23, 1976.
    Robert E. Gregg, Donald E. Raymond, Kansas City, for appellant.

      Void, Sullivan & Kopp, William R. Williams, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from decree of circuit court, modifying child custody terms of divorce decree by changing custody of minor son from father to mother.

A. S. and J. S. were married in 1958 and divorced in 1961. The mother was awarded custody of two sons, John, born in 1958, and Keith, born September 20, 1960. In August, 1973, the decree was modified to award the custody of the children to the father. On November 24, 1974, the mother moved to amend the decree again by restoring custody of Keith, then 14 years of age, to her. The motion alleged changed circumstances as follows:

1. Keith had started having serious problems in his school work.

2. Keith had become involved in a problem causing the juvenile authorities to take action.

3. Keith has expressed his desire to return to the custody of his mother.

At the conclusion of a hearing on the motion held in February, 1975, the court modified the decree by awarding custody of Keith to his mother and ordered the father to pay $250 monthly child support. In announcing his conclusion the trial judge stated:

“I could not find in this case that there is a change in the circumstances of the custodial parent as would cause the Court to sustain the Motion to Modify the judgment in this case. I think the evidence has caused me to conclude that there is a significant change in the circumstances of the child involved, including his present emotional and behavioral conditions and attitudes. This should not infer to you for one moment that the Court is basing its judgment and order on the expressed wish, if any, of the child as to his choice of custodian. I have considered all of the evidence in this case and have considered the change in circumstances of the child involved; and on all of the evidence in this case, therefore, I find that a modification of the decree is necessary to serve the best interest of the child.”

On this appeal, appellant first contends that the evidence supported none of the three grounds alleged in the motion as changed circumstances justifying a change in custody of the child.

The trial court made no express findings with respect to these allegations. However, it is apparent that he considered these matters as bearing upon the “emotional and behavioral conditions and attitudes” of the boy which the court concluded warranted a finding of changed circumstances. The evidence showed that the boy’s scholastic record was unexceptional. During grade school his record showed largely M’s, with a scattering of S’s and I’s. In his first year of junior high school, 1972-1973, he had one failure one semester and I’s and M’s in other courses, except for two S’s. In his second year, 1973-1974, his record did not improve. For the first semester of grade nine, beginning in September, 1974, his grades showed some improvement.

Much of the boy’s scholastic problems appear to have been related to his nonattendance, noted particularly beginning with the 1972 school year. At that time, he was still in respondent’s legal custody, but because she underwent surgery, the boy was in appellant’s actual custody during at least a large part of the first semester of the 1972-1973 school year.

Respondent attributed Keith’s improvement during the first semester of the 1974 year to her assistance. Again, although appellant had legal custody of the boy at that time, the evidence showed that he actually spent much time with his mother.

The juvenile court matter arose in November, 1974. Apparently it arose out of Keith’s truancy from school and was initiated by respondent. According to her, she was seeking to use this means in order to obtain the benefit of counselling for the boy. The matter was dismissed by the juvenile court without any action by that agency. Both appellant and respondent acknowledged the boy’s need for counselling. However, appellant could not obtain his cooperation for that purpose.

The record here contains no direct evidence that Keith had expressed a desire to return to the custody of his mother. However, appellant stated that if Keith should be asked his preference, he would expect him to say that he preferred to live with his mother.

There was evidence that his mother had, during Keith’s visits, become aware that he had used marijuana. He did not do so in her presence, but the odor remained in his clothes. Appellant had been unaware of any such problem. The evidence indicated that Keith had been supplied marijuana by his older brother who had been summoned for a juvenile court proceeding arising out of his possession of the substance.

On this record, this court cannot say that the conclusion of the trial court that there had been a change in conditions involving the boy’s emotional and behavioral problems which warranted a change of custody in his best interest should be overturned. There was evidence to support the trial court’s conclusion. The trial court had the advantage of viewing the parties and the other witnesses. Review does not leave this court with the firm conviction that the trial court erred in its conclusion. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

This conclusion also disposes of appellant’s second contention that there was no evidence of a material change in circumstances which justified a change in custody.

Appellant’s third complaint is that the court’s order was based upon secret evidence, taken in camera, the record and substance of which was sealed by order of the court, with the result that appellant was denied knowledge of the evidence which the court considered and was deprived of the opportunity to respond to such evidence.

As authorized by § 452.385, RSMÓ 1975 Supp., at the conclusion of the evidence presented by the parties, the trial court interviewed Keith in chambers, in the presence of the attorneys for the parties. A record of the interview was made by the court reporter. However, the court ordered the record sealed and it was not made a part of the transcript on appeal. The court also directed the attorneys not to reveal what was said at the interview. Appellant contends that the court ignored that portion of § 452.385 which requires the transcript of the interview to be “made part of the record in the case.”

This complaint entitles appellant to no relief in this court. Without approving or disapproving the action of the trial court, it is to be noted that appellant took no steps to have the in camera interview made available to this court. Counsel was present but made no move to rebut or refute, in the trial court, any matter which might have arisen in the interview. Counsel on appeal would excuse this by saying that trial counsel could not have known what might have been available from his client had he not been prohibited from discussing the interview with his client. Certainly counsel was aware of what had been brought out at the hearing and he undoubtedly would have sought relief from the trial court’s order had he sincerely believed that anything had been introduced into the case at the interview which required refutation or rebuttal.

The suppression of an in camera interview must not be used to permit arbitrary action by a trial court in a case such as this. Here, the trial court’s action was justified by the record in the case, and his action was not arbitrary. Appellant has not suggested that the record of the in camera interview would call for a different result. In the light of appellant’s inaction and in the further light of his failure to suggest how the production of a transcript of the interview might have produced a different result in this court, his contention affords no basis for relief.

Judgment affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    William Francis SMITH, Respondent, v. Thanom P. SMITH, Appellant.
    No. 28462.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.
    Motion for Rehearing and/or Transfer Denied Dec. 23, 1976.
    J. Kirk Rahm, Hensley, Rahm & Rahm, Warrensburg, Gregory D. O’Shea, Lemay, for appellant.
    C. B. Fitzgerald, Warrensburg, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from adverse ruling on motion to modify dissolution decree with respect to custody of children! The question is whether Thanom P. Smith “was entitled to custody of the children as a matter of law.” Affirmed.

On November 12, 1974, William Francis Smith filed his petition for dissolution and alleged: That he and Thanom P. Smith were married August 31, 1966, in Thailand and were separated November 4,1974; that he was residing at Whiteman Air Force Base and she was residing in Festus, Missouri; that the marriage was irretrievably broken; that Herbert William, age 6, Cheryl Lynn, age 5, and Terri Katherine, age 3, were children of the marriage and were in the “actual custody” of William Francis Smith. He prayed, among other things, for a decree of dissolution of the marriage and for custody of the children.

There is no question with respect to the service obtained upon Thanom P. Smith, and she filed no responsive pleading.

On December 31, 1974, the petition came on for hearing with Thanom P. Smith in default. The petition was supported in all respects by the testimony of William Francis Smith.

The court found the marriage was irretrievably broken, and that William Francis Smith was “the proper person to have care and custody of the three minor children” and the clerk was “directed to forward a ten day letter” to Thanom P. Smith advising her that “absent objection from said party being filed within ten days after date of mailing that a finding the marriage is irretrievably broken and an order of dissolution of the marriage may be entered of record.” See Section 452.320, RSMo 1969.

There is no question with respect to receipt of this notice by Thanom P. Smith.

On January 13, 1975, the court decreed the indicated dissolution and awarded custody of the children to William Francis Smith, all in accordance with the findings of December 31, 1974.

On June 4, 1975, Thanom P. Smith filed her motion to modify the decree and alleged: That on the date the decree was entered, December 31,1974, and on the date it became final, January 10, 1975, “actual custody of said minor children * * * was not in said William Francis Smith and was actually in Thanom P. Smith”; that the case proceeded to hearing by default; that she is a native of Thailand, her ability to read and to understand English is limited, she was unaware of this country’s customs and did not understand the implications of the papers and proceedings against her and the necessity to seek an attorney; that the order of custody was “improperly given because the information furnished to the Court by Petitioner relating to custody was untrue and improper”; that the best interests of the children would be served if they were with their natural mother; that the father has remarried, the children do not know the stepmother, and the circumstances are not in the best interests of the children under such conditions.

On August 18,1975, the motion to modify was heard.

Thanom P. Smith, age 33, a Thai, was living with her ex-husband’s parents in Fes-tus, Missouri, and was working as a cleaning lady earning $125 per month. She did not speak English at the time of her marriage August 31, 1955, in Thailand to William Francis Smith. She denied telling her husband she wanted to return to Thailand, and stated she did not want to return to Thailand although her husband had tried to get her to return. She desired to have the children and denied telling her husband she did not want them.

Herbert Wilson Smith, age 50, father of William Francis Smith, lived in Festus, Missouri. He was employed five days a week, 7:00 a. m. to 4:00 p. m., as a greens superintendent at a golf course in Herculaneum, Missouri, and earned $8400 per year. His wife was employed six days a week, 6:30 a. m. to 12:00 noon, as a bakery clerk and earned $5000 per year. They lived in a “five room house, three bedrooms, living room, kitchen, and bathroom, and basement.” During the time Thanom and the children were there, he and his wife occupied one bedroom, their 19-y ., ' son occupied another, the three ehil&3.r¡ the third, and Thanom slept on a daybed in the living room. He had known Thanom since 1968, and she had lived in the Festus home since November 4, 1974. Thanom’s work was in the evenings, four hours on Mondays and three hours on Saturdays. She was also going to Jefferson College three hours an evening on Tuesdays and Thursdays. Tha-nom had also lived-in the Festus home for the year 1969, and from Fall, 1971, to Summer, 1973, and was welcome to continue living in the Festus home with or without the children. Thanom and the children were brought to the Festus home November 4,1974, by her husband, his mother, and his friend. The children were enrolled in Festus schools November 6,1974. The children remained in the Festus home until April 27, 1975, when Terri left with her father, and May 29, 1975, when the other two went with their father upon writ of habeas corpus issued by the court of appeals in St. Louis pursuant to the custody decree. His son filed an earlier divorce proceeding in Texas, which was dismissed because “his wife obtained a lawyer in Festus, to contact his lawyer in Texas * * The present divorce papers were brought to the Festus home and delivered to Frances Katherine Smith, mother of William Francis Smith. Mr. Smith (Herbert) read the papers to Thanom. He told Thanom her husband was trying to take the children; he did not advise her she needed an attorney “by my wife’s request.” He talked to his son December 24, 1974, in Festus, and his son advised that he (William Francis Smith) would have actual and legal custody of the children and that they would be left in Festus. Mr. Smith was aware of the receipt of the statutory notice of the decree of dissolution and called the Clerk of the Johnson County Circuit Court December 31, 1974. He learned that the proposed decree would vest custody of the children in William Francis Smith, and he communicated such knowledge to Thanom.

Frances Katherine Smith, age 48, mother of William Francis Smith, corroborated the testimony of her husband and Thanom. She went to Whiteman to talk to her son November 3,1974, when Thanom called and said “Bill was going to kill himself.” She talked to her son about a divorce and “told him that he couldn’t have the children because of the way he lived his life, and that he could make his Father and I Guardians over the children.” That was agreeable to him, but later “he said * * * Mr. Fitzgerald [his lawyer] told him that he could not make us Guardians; that either he got the children or she got the children. * * He said she definitely would not get custody of the children * * * because he did not want to have to pay support money to her. * * * later on I told him that I was going to let him get custody of the children by default, because that’s the way he wanted to get the divorce.” She received the divorce papers; she did not advise Thanom to get a lawyer.

Movant also adduced testimony from Mrs. Martha Brown, Mrs. Marie Chevalier, and Mrs. Henrietta Bernier, neighbors of Thanom when she lived with her husband at Whiteman, that she was a good mother and housekeeper.

William Francis Smith, a 12-year career Air Force Staff Sergeant, described the events of early November, 1974. “ * * * my Mother had come down on the 3rd, and said to me that Thanom had called her and said I was going to kill myself, which I hadn’t, and I immediately got mad and jumped Noy about it, my former wife. I asked her what she meant by doing such a thing, then my Mother said that she had come to take the children away from me, and if she needed to do so she would get the police. I said, ‘no, you are not taking the children.’ I said, ‘you can take Noy if you want to, but the children stay with me.’ So, we talked about it during the day, and that evening I consented to let the children go stay with her until the divorce was final; at her request.” He had talked with his wife about the divorce and “She said this was all right as long as they stayed with my folks until the divorce was over with, and that she would stay there with them and return to Thailand as soon as possible. * * She wanted to stay here for awhile and then, on the periods of time that I would go home, she would ask me if I had a thousand dollars so she could go back to Thailand.” On November 4, he helped deliver Thanom and the children to his parents’ home in Festus. “ * * * my Mother asked me to leave them there until the divorce was over with. And on the 8th of December * * she had called and asked if I would bring the beds up for the kids, so I took three beds up there for the kids to sleep on. * * And, I asked if they needed anything. They said no, everything was fine, just go ahead get your divorce final and get custody of the children and have it over with.” His wife understood the “same thing.” He knew she understood because “I speak Thai fluently, and I also talked to her in English and Thai, so she knew what I was coming to Court for. She knew that I was filing for custody of the children.” He agreed and everyone understood that the children should be entered in the Festus schools “until the divorce was over with, and I would come back and get them. * * * [In] December, after the divorce was final, I called and said I was going to come and get the children, and my Mother had asked me to leave them there until school was out; everything was fine, they didn’t need anything, or want anything, just bring up groceries when I come up there every once in a while.” He visited his children in his parents’ home on at least three occasions prior to taking Terri back to his home at White-man. “ * * * the Base Commander had called my Commander at the hospital telling me that I either had to have dependents living in the house, or move out, and a possibility of losing a stripe and being fined.” He remarried May 2, 1975, and his new wife, Lenexa, is employed at Central State University in Warrensburg. The children were enrolled in schools at Whiteman on August 26,1976, and the bus takes them to school at 8:30 each morning. A baby sitter in Knobnoster, Mrs. Clear, cares for Terri during the day. His parents and Tha-nom visited the children in the home at Whiteman twice before the hearing on the motion. There were no problems except the children did not want to go with them. He admitted that he testified at the hearing on his petition for dissolution that the children were m his home at Whiteman and going to school there when they actually were in Festus. He did so because “there was an understanding between myself and my folks that the children would just be up there until the divorce was final, and I was to come back here, go up and get them. Q. So, you told Judge Russell something that wasn’t true so he would give you illegal custody of the children? A. I didn’t tell him that for this reason; no. Q. What was the reason? A. They was no specific reason to. I was asked a question and I answered it the best way I felt. * * * Q. You testified * * * that you had the care and custody of the children on December 31st, 1974. That wasn’t true, was it? A. No, but I had taken them to my parents’ house at their request, and I still felt that I had custody of the children. They were taking care of them through my permission. Q. All right. You didn’t tell Judge Russell that you didn’t have — actually have custody, that your parents were holding the custody— A. Physical custody; no, I did not have physical custody. Q. * * * In fact, the children were with their Mother, weren’t they? A. They were. Q. You didn’t tell Mr. Fitzgerald about that, though, did you? A. I wasn’t asked. Q. You didn’t think Mr. Fitzgerald would need to know that? A. * * * I explained it to him before we come into Court. Q. What did you explain to him? A. That the children were with their Mother. Q. And you told the Court that they were — that you had their care and custody? A. I told the court that I had the care and custody, yes, because I felt that I did have the custody even though they were with my parents.” With respect to the incorrect testimony at the dissolution hearing, the following occurred: “Q. [By the Court]: Are you telling me that when you were in here in December of last year, and you told me that these kids were going to school in — at Whiteman Air Force Base, that you didn’t understand what was being asked of you? I can understand how you might be mixed up on custody, but I have some difficulty in understanding how it is that you told me that the kids were going to school at White-man Air Base, when they were going to school in Festus. A. They had been enrolled out here, and it was my understanding with my parents that I was just to take them up there temporarily and then bring them back here as soon as the divorce was final.”

In the present home, Herbert has his own room, and Cheryl and Terri share a bedroom, separate and apart from the parents’ bedroom.

Lenexa Ann Smith is a secretary at Central Missouri State University, and has two years of college education. She gets along well with the children, and without solicitation, they call her “Mother.” She described the baby sitter, Mrs. Clear, as a nice woman who loves children.

Mrs. Wilma McKeon, Lenexa’s mother, tutored the children to help them with English, and felt that her daughter got along well with the children.

Mary Elizabeth Weekly felt that Lenexa was fond of her stepchildren and that she and the children got along well.

Carolyn Flanagan, counselor in the school system, stated that the children were doing “quite well.” Cheryl’s test scores had been “a little below average” due to her “bilingual background.” Cheryl seemed happy with her “new mother,” and Herbert seemed to be satisfied with his new location “because he had a room all to himself, and he had a place to ride his bike.”

At the conclusion of the evidence the court took the matter under advisement, and made the observations and findings as follows:

“There hasn’t been any evidence presented to the Court that either of the parties is unfit in anyway to have the custody of the children. There isn’t any testimony that the children were not doing well when they were with Mrs. Smith in Festus. There isn’t any indication that they are not doing well and adjusted where they are at the present time.

“You have got some various principals that are involved in the law that the children of tender years normally should be with their Mother. * * * Mrs. Smith has a language problem and is not really in good shape to provide monetarily for the children. On the other hand, the Court, at the time that the custody was granted to the Petitioner, was not aware that the children were not in Johnson County, and that they were not with Mr. Smith. * * * in order to award a modification or a change in this case, there would have to be facts available to the Court which were not known at the tiine of the entry of the decree, or there would have to be a change in the conditions of the parties in some fashion.

“ * * * Mrs. Smith didn’t appear in this proceeding, and * * * she hasn’t testified that she was unaware of what the proceeding was. Mr. and Mrs. Smith Sr., have so testified. You have the situation where she got an Attorney in the Texas proceeding, so she apparently knew something about what a divorce was about.”

On October 3, 1974, the court entered the following order:

“ * * * Mr. Smith is a Sergeant in the United States Air Force, and since the dissolution he has remarried and is living at Whiteman Air Force Base with the three children. Mrs. Smith, a native of Thailand, is living with Mr. Smith’s parents in Festus, Missouri. Mrs. Smith is employed in Fes-tus, and is presently attending school.

“The uncontroverted testimony at the [present] trial indicated that at the time of the action for dissolution, the children were in Mrs. Smith’s custody and had been for a period of approximately two months. The children had been in the care of Mrs. Smith for almost all of their lives prior to that time. The children have experienced little difficulty, at any time, whether living with their mother, their father, or their grandparents, and are presently doing well.

“The dissolution was heard on December 31, 1974, and a ten day letter, notifying Mrs. Smith that the Decree would be entered, was sent to Mrs. Smith on December 81, 1974. No objections to the dissolution were filed by Mrs. Smith, and the dissolution was granted January 13, 1975. Mrs. Smith was not represented in the dissolution proceedings, and did not appear at the hearing.

“A prior divorce had been filed by Mr. Smith in Texas, while Mrs. Smith was residing with Mr. Smith’s parents in Festus, Missouri, and in that proceeding Mrs. Smith obtained a lawyer to represent her.

“Mrs. Smith now contends thht she was not aware that Mr. Smith was seeking custody of the children in this dissolution action. As a basis for her misunderstanding, she asserts that at the time the action was filed, and up until April 27th, 1975, the children were with her in Festus, Missouri. This is uncontroverted. She further cites her lack of understanding of the English language as a factor, even though the Petition specifically prayed that custody be placed with Mr. Smith.

“Mr. Smith testified he had an agreement with Mrs. Smith whereby she would go home to Thailand after the dissolution and he would assume custody of the children. Mrs. Smith denies such an agreement. Mr. Smith testified at the dissolution hearing on December 31, 1974, that the children were in his custody and were attending school at Whiteman Air Force Base. This testimony was not true, and Mr. Smith offered no reasonable explanation as to his lack of candor with the court.

“It does not appear to the Court that either of the parents are unfit, although neither is the Court overly impressed as to the responsibility and reliability of either parent. The mother’s story to the Court that she was not aware of the significance of the dissolution proceeding does not ring true in the light of her having previously obtained a lawyer in a proceeding in Texas, and in light of her having given up one child previously in Thailand. Her command of the English Language is sufficient, in the Court’s opinion, for her to have understood and appreciated the possibility of custody being placed in her husband since that was what was prayed for in the Petition.

“The Court finds that there was an agreement between the parties as to the placement of the children, and the Court finds that no fraud has been perpetrated. The Court finds no change of circumstances that would justify a change of custody in view of the fact that the children are doing well. The Motion to Modify is overruled.”

Appellant contends she was entitled to custody of the minor children “as a matter of law because (1) the children are of tender years, (2) they have been with their mother most of their lives, (3) * * * appellant is a good mother, willing and able to care for said minor children, (4) because respondent obtained the right to legal custody of said children through intentional and fraudulent misrepresentations to the court in the original default dissolution hearing, and (5) because it would be in the best interest of said minor children for their natural mother * * * to have custody of them.” In clarification of her contention, appellant asserts “the modification * * * is sought on the basis of facts that were unknown to the Court and which were concealed from the Court at the time of the prior decree. Specifically, the prior decree was based upon false testimony of the Respondent as to material and relevant facts.”

The record has been stated at length because it demonstrates that the court gave due consideration to all the factors mentioned in appellant’s contention.

The court, irrespective of what it described as the father’s “lack of candor” with respect to the children’s physical custody on December 31, 1974, found specifically that no fraud had been perpetrated on the court. Appellant has not demonstrated that the court could not have so found, and the record is sufficient to cause this court to defer to the trial court on that issue.

The court has recognized that the children are of tender years, have been with their mother most of the time, and that she is a good mother, willing and able to care for the children. The court also found, and the record supports the findings, that the father is at least equally fit to exercise custody and care of the children, that he is presently exercising custody and care, and that the children are doing well in his custody. Again, the record is sufficient to cause this court to defer to the trial court on those findings.

The court recognized also that children of tender years normally should be with their mother. This is not conclusive, however, where there is a finding, eviden-tially supported, that the best interest and welfare of the children are served by a departure from application of the foregoing principle. S. G. E. v. R. L. J., 527 S.W.2d 698, 703 (Mo.App.1975); L. E. (S). v. J. A. E., 507 S.W.2d 681, 683, 684 (Mo.App.1974).

The force of the court’s findings and its refusal of a change of custody of the children is that “the children are doing well,” i. e., that their best interests and welfare are best served by their remaining in their father’s custody. This predominating finding, Northrup v. Sieve, 517 S.W.2d 470 (Mo.App.1974), is amply supported by the evidence. If the present custody of the children were to be modified to suit the mother, the evidence shows that three young children would be raised primarily by their grandparents, in the grandparents’ crowded home, as contrasted with the superior accommodations which the evidence shows are available in the father’s home on Whiteman Air Force Base where he is a career noncommissioned officer. The evidence shows also that the children have adjusted well to the father’s home and to his new wife, and that the two school-age children are doing well in their schooling. The youngest child is secure in the care of a competent baby sitter during working hours. These circumstances demonstrate that the court gave the required paramount consideration to the welfare of the children, and the record does not, as a matter of law, dictate a contrary result. Noland v. Noland, 527 S.W.2d 696 (Mo.App.1975).

Judgment affirmed.

All concur.


author: BILLINGS, Chief Judge.

text:
    Gerald TURNBOUGH, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10106.
    Missouri Court of Appeals, Springfield District.
    Dec. 16, 1976.
    Nicholas R. Fiorella, Springfield, for movant-appellant.
    John Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

      Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Appellant Gerald Turnbough was unsuccessful in his attempt by way of a motion for a writ of error coram nobis to vacate his 1962 guilty plea and conviction for burglary. The Circuit Court of Greene County held an evidentiary hearing on appellant’s motion and found appellant’s guilty plea was voluntarily given. The court did set aside the revocation of appellant’s probation and sentence which followed the plea, and after appellant waived a hearing on the probation revocation the court re-sentenced appellant and ordered him discharged because the sentence had been served. We affirm.

In his motion the appellant alleged his 1962 guilty plea was involuntary because of coercion, threats, trickery, erroneous information, no information, and his insufficient knowledge as to the consequences of his plea. He also averred that his failure to be represented by an attorney when his probation was revoked and he was originally sentenced vitiated his guilty plea and conviction.

This court reviewed coram nobis proceedings and the rules and principles applicable thereto at some length in Howard v. State, 493 S.W.2d 14 (Mo.App.1973), and it would not serve any useful purpose to reiterate them here. That decision and the authorities cited therein constitute a bar to appellant obtaining the relief he seeks.

Appellant did not exercise reasonable diligence in attacking his 1962 guilty plea. The “facts” which appellant claims tainted his guilty plea were known to him at the time his plea was entered. Neither in his motion nor at the evidentiary hearing conducted by the trial court were any sound reasons alleged or advanced for his failure to seek appropriate relief by way of a Rule 27.26, V.A.M.R., proceeding.

Appellant has not demonstrated he is suffering from present adverse circumstances as a result of the former conviction. The fact that the prior conviction was used to prosecute him in St. Louis under the Second Offender’s Act does not alter the situation. The 1969 sentence he received and is now serving for assault with intent to kill with malice aforethought is within the permissible limits of sentencing him either as a first or second offender, and any loss of civil rights from the earlier conviction would flow with equal force from the St. Louis conviction. Furthermore, since the 1959 amendment to the Missouri Second Offender Act, § 556.280, RSMo 1969, our statute does not provide for enhancement of punishment of a second offender. The statute merely provides that when a person subject to its terms is convicted, the trial judge, rather than the jury, determines the punishment. This procedure is no different from a first offender’s prosecution in this state when the jury agrees upon the defendant’s guilt but cannot agree on the matter of punishment; nor is it different from a first offender’s conviction in the federal system — the judge in each instance determines the punishment.

The judgment is affirmed.

All concur.

      . Appellant was initially placed on probation after his 1962 plea. In 1964, following the court’s revocation of probation, appellant was sentenced to a three-year prison term. In 1969 that conviction was used to prosecute appellant under the Second Offender Act [§ 556.280, RSMo 1969] in St. Louis. He was sentenced to a term of 25 years imprisonment on his conviction of assault with intent to kill with malice aforethought. See: State v. Turnbough, 497 S.W.2d 856 (Mo.App.1973); Turnbough v. State, 533 S.W.2d 609 (Mo.App.1975).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Dean NICHOLSON, Defendant-Appellant.
    No. 10156.
    Missouri Court of Appeals, Springfield District.
    Dec. 16, 1976.
    John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    William E. Stoner, Walker, Salveter & Stoner, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Defendant Dean E. Nicholson was jury-tried and convicted in Phelps County in 1972 of violating the insufficient funds check statute [§ 561.470, RSMo 1969]. He was sentenced to two years imprisonment but execution of the sentence was suspended by the trial judge and he was placed on probation.

Defendant’s postconviction motion to vacate the sentence and judgment, charging ineffective assistance of counsel because a timely motion for new trial was not filed, was denied by the trial court. We affirmed the action of the trial court but on transfer to the supreme court it was held that defendant was “in custody” within the meaning of Rule 27.26, V.A.M.R., and could maintain a motion under that rule. The court concluded defendant had not had effective assistance of counsel and ordered his sentence and judgment vacated and that he be permitted to file a motion for a new trial. Nicholson v. State, 524 S.W.2d 106 (Mo. banc 1975).

Thereafter, defendant filed his motion for a new trial. The trial court overruled the motion but then failed to grant allocution, impose sentence, and render judgment. Because of these omissions there is not an appealable judgment, we have no jurisdiction, and this appeal is premature.

Accordingly, defendant’s appeal is dismissed.

All concur.


author: DUNCAN, Judge.

text:
    Grady TAYLOR, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    March 1, 1976.
    Certiorari Denied by Supreme Court April 12, 1976.
    Rehearing Denied June 1, 1976.

      Frierson M. Graves, Jr., Memphis, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Carl Kirkpatrick, Dist. Atty. Gen., Edgar P. Calhoun, Asst. Dist. Atty. Gen., Blountville, for defendant in error.
   OPINION

DUNCAN, Judge.

The defendant, Grady Taylor, was con* victed in the Sullivan County Criminal Court for the offense of exhibiting obscene material, and received a jail sentence of 6 months and a $3,000.00 fine.

The record shows that on March 23, 1974, the district attorney general filed a petition in the Sullivan County Criminal Court against the defendant and others, alleging that they were exhibiting two obscene motion picture films, one untitled and the other titled “Horney Hobo.” After an adversary hearing, the trial judge ruled that the motion picture films were obscene, and granted an injunction prohibiting their further exhibition. That case was appealed to the Supreme Court and the trial court’s judgment was affirmed. Taylor v. State ex rel. Kirkpatrick, 529 S.W.2d 692, 699 (Tenn.1975).

The case now before us is the defendant’s appeal from his criminal conviction for exhibiting the two motion picture films heretofore mentioned.

In his first, fourth, and fifth assignments of error, the defendant alleges that by reason of the procedure used to obtain the evidence, he was compelled to give evidence against himself in violation of his constitutional rights, and that the Tennessee statutes on obscenity are unconstitutional for various enumerated reasons.

With respect to these assignments, we note that the same issues contained therein were presented to the Supreme Court in Taylor v. State ex rel. Kirkpatrick, supra. The Court ruled against the defendant’s contentions regarding those issues and we are bound by that ruling; therefore, these assignments are overruled.

In his second assignment of error, the defendant argues that the arrest warrant was issued in this case without complying with the provisions of T.C.A. § 39-3014, which section provides:

“No criminal action to enforce the provisions of §§ 39-3010 — 39-3022 shall be commenced except upon application of the district attorney general or his designated representative. Said application shall be made only with the knowledge of and approval by the district attorney general. Criminal action shall commence only on issuance of a warrant by a judge of a court of record. No warrant shall issue until the party against whom a warrant is sought is notified of the application for a warrant and given twenty-four (24) hours to appear and contest the existence of probable cause for the issuance of a warrant. If the defendant fails to appear after notice, the hearing shall be held in his absence.”

The record shows that on May 2, 1974, written notice was given to the defendant by a police officer that an application for a criminal warrant would be made on May 6, 1974. The warrant was issued on the latter date by the judge of the criminal court. Thereafter, the grand jury returned an indictment on July 17, 1974, charging the defendant with exhibiting and displaying obscene motion picture films.

In view of the petition filed by the attorney general on March 23, 1974, and the proceedings that had occurred incident thereto, together with the written notice given by the police officer, we do not see that the defendant was prejudiced by reason of this technical non-compliance with the statute, for it is obvious that he had adequate actual notice of the commencement of this criminal action. Furthermore, the fact the attorney general himself did not give the notice provided by T.C.A. § 39-3014, became inconsequential after the grand jury returned the indictment.

T.C.A. § 40-1605 provides that, “The grand jury shall have inquisitorial powers over all indictable or presentable offenses committed or triable within the county.”

T.C.A. § 40-1606 provides that, “The grand jury shall inquire into all indictable or presentable offenses committed or tria-ble within the county, and present them to the court by indictment or presentment.”

In our opinion, even if it is conceded that there was a technical non-compliance regarding the required statutory notice, it is immaterial in this case. The defendant’s conviction depends not upon the validity of the arrest warrant or proceedings incident thereto, but upon the indictment, and the grand jury having inquisitorial powers over this offense, the indictment was valid without regard to whether the defendant had received proper notice that an application would be made for the arrest warrant.

The provisions of T.C.A. § 39-3014 must not and cannot be interpreted so as to preclude a grand jury from investigating and returning indictments and presentments for violations of the obscenity laws in the exercise of its inquisitorial powers over all indictable or presentable offenses committed within the county. T.C.A. §§ 40-1605, 40-1606, 40-1609, 40-1617. Logic and the law say otherwise.

In Jones v. State, 206 Tenn. 245, 256-57, 332 S.W.2d 662, 667 (1960), our Supreme Court, in holding that all questions about the sufficiency of a warrant are foreclosed by the finding of an indictment, said:

“Counsel has cited no authority and we think none will be found in this State holding that the validity of an indictment is to be tested and limited by what is found in the warrant. The purpose of a warrant is to give an accused person notice that he is charged with some offense and if the warrant is defective, objection may be raised before the committing magistrate or upon a habeas corpus proceeding before indictment. The correct rule is, however, that all questions as to the sufficiency of the warrant are foreclosed by the finding of an indictment, because under T.C.A. §§ 40-1605 to 40-1625 grand juries in this State are given inquisitorial powers over all indictable or presentable offenses committed or triable within the county. Consequently, it would be a miscarriage of justice to hold that when the probability of the commission of a crime has been called to the attention of the grand jury by either a defective or even a void warrant, the grand jury would be powerless to investigate the situation further and to find a valid indictment for whatever offense or offenses their investigation might develop.”

In following the above rule in Manier v. Henderson, 1 Tenn.Cr.App. 341, 343, 442 S.W.2d 281, 282 (1969), our Court said, “The manner of arrest is immaterial to the validity of the indictment.”

In Mullins v. State, 214 Tenn. 366, 369-70, 380 S.W.2d 201, 202 (1964), our Supreme Court said:

“This binding over does not have to be by warrant or anything else as when the facts were properly presented to the Grand Jury an indictment might be found under these facts regardless of how the man was bound to the Grand Jury. Numerous cases are in the books and otherwise where defendants are prosecuted under indictments without being arrested prior to the return of the indictments; defendants are indicted after being released at a preliminary hearing; and in other cases defendants are prosecuted under indictments although the initial arrest was invalid.”

The case of French v. Shriver, 225 Tenn. 727, 731, 476 S.W.2d 636, 637-38 (1972), cited by the defendant in his brief, is not controlling here. That case dealt with the provisions of our former obscenity act, and involved the seizure of evidence contrary to the express provisions of that act. In that ease the petitioners conceded that the obscenity statutes there involved did not “preclude the use of other legal methods of procedure for the prosecution of actions arising thereunder.” They did insist, and the court agreed, that those statutes were “exclusive with respect to seizure and suppression of any obscene material. ” (emphasis added).

We would agree with the defendant’s contention if the present appeal involved the unlawful seizure of the subject evidence. Our Court has recently held that where evidence is seized without following the procedural steps outlined in T.C.A. § 39-3014, then error is present and such evidence must be suppressed. Runions v. State, Tenn.Cr.App., opinion released, Jackson, October, 1975.

We must point out, however, that the seizure of the evidence in the present case was not affected in any manner by the proceedings surrounding the issuance of the arrest warrant. Rather, the evidence in this case was lawfully seized by the district attorney general in accordance with the procedures set forth in T.C.A. § 39-3019, such seizure occurring prior to the issuance of the arrest warrant.

The indictment in this case is in all respects regular upon its face; it is signed by the District Attorney General, Carl K. Kirkpatrick, as the law requires; it contains sufficient allegations to charge the defendant with a violation of the obscenity laws; it lists the name of Eddie L. Sims as the prosecutor; therefore, the indictment being valid, it can in nó wise be affected by any of the proceedings, irregular or otherwise, that were attendant to the issuance of the notice for an application for an arrest warrant.

Thus, we overrule the defendant’s second assignment of error.

In his third assignment of error, the defendant argues that the indictment was improper because Officer Eddie Sims was listed as the prosecutor. In making this assertion, the defendant does not point out why it was improper, other than stating that Sims obtained the arrest warrant in violation of the statute, which complaint we have already answered in this opinion. We find no impropriety in Sims being listed as the prosecutor on the indictment. We find no statutory mandate that requires the attorney general to be listed as the prosecutor on an indictment which charges a violation of the obscenity laws. This assignment is not meritorious.

In his sixth assignment, the defendant argues that the motion picture films were not obscene as a matter of law. This same insistence about the same films was made before the Supreme Court in Taylor v. State ex rel. Kirkpatrick, supra, and there the Court found these films to be obscene.

In Taylor, the Court said:

“Lastly, appellants contend that the films here involved are not obscene. Having viewed these films, we have no hesitation in concluding that said films are grossly obscene. Indeed, they are ‘hard core pornography.’ The films are in the record and we do not deem it necessary to describe them in detail in this opinion. They clearly come within the definitions of obscene materials set out in Section 2 of the Act. We hold (1) that the average person, applying contemporary community standards, would find that each of these films, taken as a whole, appeals to the prurient interest; (2) that each film depicts or describes, in a patently offensive way, sexual conduct; and (3) that each film, taken as a whole, lacks serious literary, artistic, political or scientific value.”

The Supreme Court having addressed this same question, we are bound by its ruling. Moreover, we have also viewed these films, and we find that they are obscene within the purview of the definition of that term as set forth in T.C.A. § 39-3010(A). This assignment is overruled.

In his seventh assignment, the defendant complains that no evidence of contemporary community standards was introduced by the State by which the jury could judge the subject films, and in his eighth assignment, he argues that no expert testimony was introduced regarding the obscene character of the films.

The law does not require the State to introduce affirmative evidence to show such matters, other than to present the films themselves. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 2901, 41 L.Ed.2d 590 (1974); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 2634, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 121, 93 S.Ct. 2680, 2685, 37 L.Ed.2d 492 (1973).

In Hamling v. United States, supra, the Court said:

“A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law.”

In the Paris Adult Theatre case, the Court said:

“Nor was it error to fail to require ‘expert’ affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence. (citations omitted)
“The films, obviously, are the best evidence of what they represent. ‘In the eases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question. Ginzburg v. United States, 383 U.S. 463, 465, 86 S.Ct. 942, 944, 16 L.Ed.2d 31 (1966).”

In Kaplan v. California, supra, the Court, in commenting on its ruling in the Paris Adult Theatre case, said:

“We also reject in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446, any constitutional need for ‘expert’ testimony on behalf of the prosecution, or for any other ancillary evidence of obscenity, once the allegedly obscene material itself is placed in evidence.”

In the present case, the films themselves were the best evidence of whether they were obscene, and it was the jury’s prerogative to apply its own knowledge in deciding whether the tests of obscenity, as set forth in the statute, had been met.

Thus, we overrule the defendant’s seventh and eighth assignments of error.

In his final assignment of error, the defendant contends that the court’s instructions did not give a correct definition of contemporary community standards by which the jury could judge the motion picture films.

At the trial the defendant made no objection to the court’s charge and offered no special requests for instructions. As a general rule, where the court has instructed generally as to the issues, no assignment of error on the judge’s charge to the jury, either for omission or inadequacy, may be considered unless a special request was tendered, pointing out the defendant’s contention as to the error. Turner v. State, 188 Tenn. 312, 219 S.W.2d 188 (1949); Cook v. State, 506 S.W.2d 955 (Tenn.Cr.App.1973).

In the defendant’s amendment to his motion for a new trial, he makes the broad allegation that “the court did err in charging the jury as to the law governing exhibiting obscene films,” but he did not call to the trial judge’s attention the specific complaint about the court’s charge which he now raises.

In Ezell v. State, 220 Tenn. 11, 18, 413 S.W.2d 678, 681 (1967), the rule was stated in this manner: “It has long been the rule of this Court that errors, to which no objections are made and exceptions taken in the court below, cannot be raised on appeal.”

Our cases have consistently held that one may not raise questions for the first time in this Court. The trial judge will not be put in error upon matters not brought to his attention in a motion for a new trial. Bolin v. State, 4 Tenn.Cr.App. 387, 472 S.W.2d 232 (1971); Hancock v. State, 1 Tenn.Cr.App. 116, 430 S.W.2d 892 (1968); Rule 14(5), Rules of the Supreme Court — adopted by this Court.

Notwithstanding the foregoing, we have reviewed the court’s charge and find that it properly charges the law in accordance with the provisions of T.C.A. § 39-3013, as well as charging the applicable definitions contained in T.C.A. § 39-3010. A sufficient definition of contemporary community standards was contained in the judge’s charge. Further, the court’s instructions meet the tests for obscenity as promulgated by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

We overrule the defendant’s assignment complaining of the court’s charge.

We find no reversible errors in this record. The judgment of the trial court is affirmed.

WALKER, P. J., and J. C. BEASLEY, Special Judge, concur.


author: O’BRIEN, Judge.

text:
    Denver McMATH, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    July 21, 1976.
    Certiorari Denied by Supreme Court Dec. 6, 1976.

      Gene Griffin and Robert H. Feeney, Ort-wein, Feeney & Griffin, Chattanooga, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty., Gen., Nashville, Stephen M. Bevil and Thomas J. Evans, Asst. Dist. Attys. Gen., Chattanooga, for defendant in error.
   O’BRIEN, Judge.

OPINION

Defendant has raised several assignments of error on this appeal from his conviction for third degree burglary. He was considered as a habitual criminal under the provisions of T.C.A. Sec. 40-2801 and sentenced to confinement for life in the State Penitentiary.

The defendant filed a plea in abatement and a motion to quash on the day before the trial date. The plea in abatement was treated as a motion to dismiss and each was overruled. Defendant cites this ruling of the trial court as error.

The motion to quash the indictment was predicated on the premise that he was indicted as a habitual criminal by action of the grand jury without a prior preliminary hearing. That since he was not originally charged with this violation the action of the grand jury in returning an indictment was improper and a presentment would have been the proper course in such a case.

Defendant was afforded a preliminary hearing on the charge for which the arrest warrant issued. At the time of his arrest, indictment, and trial, there was no statutory requirement entitling him to a preliminary hearing absent a request made after his arrest pursuant to a warrant. The law specifically provides that upon inquiry into all indictable or presentable offenses committed or triable within the county, the grand jury shall present them to the court by indictment or presentment. T.C.A. See. 40-1606.

For his second assignment defendant contends that T.C.A. Sec. 40-1507 violates his Sixth Amendment constitutional rights because it provides that every person appointed as foreman of a grand jury .shall be a good and lawful man ., and therefor denies him the right to have the charges, against him considered by a fair cross section of the community because women are systematically excluded. He relies on the United States Supreme Court ease of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690. T.C.A. Sec. 1-304 provides, inter alia, “Words importing the masculine gender include the feminine and neuter;”. Defendant has offered no satisfactory evidence that the selection process systematically excludes women from the position. The assignments are overruled.

The remaining assignments complain about admission of evidence of prior convictions contained in Count II of the indictment charging him as an habitual criminal. Assignments three (3) and four (4) apply to specific prior convictions.

Defendant says the fourth listed conviction in the indictment should not have been introduced over his objection due to a fatal variance between the indictment and proof because the docket number listed did not involve an offense committed by him.

In regard to the alleged variance between the indictment and the proof, the indictment indicates defendant was convicted on November 5th, 1973 in the Hamilton County Criminal Court under Docket No. 124829 for grand larceny which occurred on January 7th, 1973. The evidence showed that defendant pleaded guilty under Docket No. 124849 to the offense of grand larceny which occurred on January 7th, 1973. The trial court’s minutes indicated that the case had been indexed erroneously under Docket No. 124829. The error had been subsequently noted and corrected. The case was included in the minutes under the proper docket number which was also on the case trial jacket. We do not find such a fatal variance between the indictment and the evidence as would, void defendant’s conviction as an habitual criminal. Nor do we find these assignments sustained by the authority cited by defendant. He relies on Cumbo v. State, 205 Tenn. 260, 326 S.W.2d 454, in which it was said:

The allegation as to a previous conviction in application of the Habitual Criminal Statute, “is sufficient if it advises the accused of what conviction he must prepare to defend and enables the court to determine if the statute imposing a greater penalty applies”. 25 American Jurisprudence, page 273, and cases there cited; and see annotations in 82 A.L.R. 368, 369. 1

The indictment in this case was returned on February 5th, 1975. Defendant was not put to trial until April 3rd, 1975. The pleas and motions to quash or dismiss the indictment technically came too late, although they were considered by the trial judge. Additionally he was entitled to demand and have from the State a written statement of the felonies and prior convictions forming the basis of the charge of habitual criminality setting forth the nature of each such felony, and the time and place of each prior conviction at least twenty (20) days prior to his trial date. T.C.A. Sec. 40-2803. The discrepancy in the docket number contained in the indictment was no more than harmless error.

Defendant says either the fourth or fifth conviction listed in the indictment should have been stricken because both offenses occurred on the same day. We do not agree. There was no objection for this reason to their admission at trial. The case of Frazier v. State, 485 S.W.2d 877, Tenn.Cr.App.1972, cited by defendant, does not support the defense theory. This case holds that more than one* conviction for offenses committed on the same day should be considered as only one offense for the purpose of the habitual criminal prosecution. It was proper that both of these convictions be submitted in evidence to the jury in case that one of the convictions offered by the State to support the charge as an habitual criminal should fail. In such event it is possible the charge as an habitual criminal could not be sustained.

This leads us to the final assignment which charges it was error to allow evidence to be heard by the jury of all defendant’s prior convictions before a ruling on whether or not any of those should have been stricken as insufficient to support the charge as an habitual criminal.

It is argued on behalf of defendant that several of the prior convictions stated in the indictment were not sufficient under the statutes to sustain a conviction as a habitual criminal, and evidence of these prior convictions should not have been submitted to the jury.

T.C.A. Sec. 40-2801 provides that any person who has been three times convicted of felonies, not less than two (2) of which are among those specified in certain Code Sections . shall be considered, .and is declared to be an habitual criminal. T.C.A. Sec. 40-2805 indicates that these matters are subject to inquiry by a jury. The case law expresses the view that it is not error to permit the State to introduce evidence of more convictions than the statute requires because of the possibility that the validity of some of the convictions of prior offenses may be successfully disputed by the defense. See Haggard v. Henderson, 382 F.2d 288, cert. denied, 389 U.S. 1024, 88 S.Ct. 600, 19 L.Ed.2d 672.

All assignments are overruled and the judgment of the trial court affirmed.

GALBREATH and RUSSELL, JJ„ concur.


author: RUSSELL, Judge.

text:
    Larry R. WALKER, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 28, 1976.
    Certiorari Denied by Supreme Court Oct. 4, 1976.

      Charles L. Hendrix, Jr., Asst. Public Defender, Nashville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Nashville, Edward M. Yarbrough, Asst. Dist. Atty. Gen., Nashville, for appellee.
   OPINION

RUSSELL, Judge.

Larry R. Walker appeals his convictions for armed robbery and assault with the intent to commit second degree murder. Consecutive sentences of life imprisonment and two to five years were fixed.

Walker’s guilt is virtually stipulated. He committed an armed robbery of a liquor store, taking all of the store’s money from the one employee that he knew to be on the premises. A second employee viewed the robbery from his vantage point behind a one-way mirror, summoned the police, and then locked himself in the rest room. After getting possession of all of the money, the defendant ordered the one employee that he was aware of to get into a closet. Walker then occupied himself searching in the office for additional loot. However, several police officers arrived shortly. Walker then made the employee leave the closet and go to the front of the store, threatening to shoot him if he told of Walker’s presence. Walker then took his place in the closet. The employee soon felt safe in telling the officers that the man they were seeking was in the back. When they opened the door to the back, Walker opened fire. One of his four shots struck Officer Lucas in the leg. Officer Cummings fired one shot, which struck Walker. Walker surrendered.

Certainly the armed robbery case is made out. Equally clear is Walker’s guilt of attempted murder. The evidence would clearly support an attempt to commit first degree (in commission of a felony) murder, instead of second degree. The assignment of error contending that the evidence preponderates in favor of innocence and against guilt understandably is neither briefed nor argued, and is overruled.

Two assignments in different ways complain of the consolidation for trial of these two charges. There was no abuse of the trial court’s discretion in disposing of both cases at the same time, since factually they are so intertwined that virtually all of the evidence would have been admissible in each separate trial. Hayes v. State, 4 Tenn.Cr.App. 360, 470 S.W.2d 950 (1971); 5 Wharton’s Criminal Law and Procedure, (Anderson 1957) § 1942. Specifically, the photographs of the bullet holes and other damage done by the four shots fired by Walker were not erroneously admitted, as being applicable only to the assault case. What Walker did on the premises immediately after he had consummated the robbery was probative circumstantial evidence as to his mens rea at the time of the robbery, as well as going to prove supportively other facets of the corpus delicti such as the use of a deadly weapon and putting the victim in fear.

Walker assigns as error that the trial judge denied his special jury charge request as follows:

“Ladies and gentlemen of the jury, the defendant has requested that I charge you, and I do charge you, that a person may be convicted of the lesser offense of attempt to commit a felony even though the final act constituting the felony has been completed.”

The bill of exceptions does not support the contention that this charge was requested and refused. We, therefore, need not consider the assignment. Gentry v. State, 184 Tenn. 299, 198 S.W.2d 643 (1947); Pulley v. State, Tenn.Crim.App., 506 S.W.2d 164 (1973). Furthermore, the claimed special request was not a correct statement of the law to be charged to a jury. While convictions for lesser included offenses are sometimes permitted to stand, even though the accused committed the greater offense, simply because the convicted defendant cannot claim prejudice from the erroneously merciful judgment, Grove v. State, 211 Tenn. 414, 365 S.W.2d 292 (1963); Laury v. State, 187 Tenn. 391, 215 S.W.2d 797 (1948); Lancaster v. State, 144 Tenn. 21, 229 S.W. 150 (1920), a jury should not be charged that it can lawfully convict of an attempt when it finds that the offense has in fact been fully committed. It is well established that even where a lesser offense is included in a charge, if the proof clearly shows a defendant has committed the higher offense of which he was convicted, it is not error if the court fails to charge on the lesser included offense. James v. State, 215 Tenn. 221, 385 S.W.2d 86 (1964); Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743 (1966); Martin v. State, Tenn.Crim.App., 497 S.W.2d 583 (1973). Obviously, there was no requirement to charge on an attempt to commit a felony in the instant case. Levasseur v. State, 3 Tenn.Cr.App. 513, 464 S.W.2d 315 (1970). Nor should the jury have been charged that they could violate their oath and deliberately find guilt of an attempt when the crime was consummated. Where such verdicts have been affirmed they have not been explicitly authorized by the judge’s charge, and have been sustained because non-prejudicial to the accused.

Error is assigned upon the trial court’s failure to charge that portion of T.C.A. § 40-3613 which deals with eligibility for parole of one given a life sentence. T.C.A. § 40-2707 required such a charge. However, our Supreme Court, in the recent case of Farris v. State, Tenn., 535 S.W.2d 608 (1976), held T.C.A. § 40-2707 unconstitutional in pertinent part. Hence, the trial judge can hardly have erred in failing to fully comply with the statute.

Finally, it is said that the sentence set for the armed robbery indicated prejudice and caprice and is excessive under the proof. Life imprisonment is a prescribed punishment for armed robbery, and therefore is not excessive. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963). We observe that the jury was lenient in finding guilt of a lesser offense than the proof warranted in the attempted murder case. Walker not only perpetrated an armed robbery, but demonstrated a malignity of heart when he tried four times to kill a police officer. It is against Walker’s will at that time that he is not a murderer. Certainly this was more than an ordinary armed robbery, as contended.

Affirmed.

WALKER, P. J, and DAUGHTREY, J., concur.


author: DWYER, Judge. O’BRIEN, Judge

text:
    James Charles ELLIS and Ashley Tate, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    Aug. 31, 1976.
    Certiorari Denied by Supreme Court Nov. 29, 1976.

      Jay Fred Friedman, Memphis, for plaintiffs in error.
    R. A. Ashley, Jr., Atty. Gen., Robert H. Roberts, Advocate Gen., Nashville, Richard S. McNeese, Asst. Dist. Atty. Gen., Leland M. McNabb, Asst. Dist. Atty. Gen., Memphis, for defendant in error.
   OPINION

DWYER, Judge.

This appeal with accompanying assignments of error flows from the convictions of plaintiffs-in-error, James Charles Ellis and Ashley Tate, on indictments for committing the offenses of possessing lysergic acid diethylamide, hereafter referred to as L.S.D., with intent to sell resulting in punishment of confinement for not less than five nor more than ten years and possessing marihuana with intent to sell resulting in punishment of confinement for not less than one year nor more than five years. The two indictments were consolidated for trial, the jury returned verdicts of guilty on both offenses and the trial court ordered the sentences to be served concurrently. We will subsequently refer to the plaintiffs-in-error by name or as the defendants.

We will narrate the evidence as found from our review of this record.

Four officers of the Metro Narcotic Squad of Shelby County searched Apartment No. 1 located at 1966 Philsar in the City of Memphis on November 5, 1973, under the authority of a search warrant which had been issued that date around 7:50 p. m. Upon entering the apartment the officers found the defendant; Ellis, and a female companion and observed a “nickel” bag (street vernacular for five dollars worth) of marihuana on a coffee table in front of a couch where Ellis had been sitting. They then searched the two bedrooms of the apartment and in a dresser drawer in the south bedroom discovered the following items: sixteen “lids” (a lid equals an ounce) of marihuana plant material; eighty-eight “hits” (windowpanes, film-like squares containing the drug) of L.S.D. in a small vial; a title to a car registered to Ellis; and a small medicine bottle containing a non-controlled substance with the defendant Tate’s name thereon. In the closet in the south bedroom a black jacket with a fur collar was found to contain a “lid” of marihuana. One of the arresting officers testified that Ellis asked him to get this same jacket for him when the officers took him into custody and that Ellis wore the jacket to the police station. No incriminating evidence was found in the north bedroom. At the Metro Narcotics Division Ellis gave his address as being 1966 Philsar, Apartment No. 1.

The defendant, Tate, surrendered himself to the custody of the Metro Narcotics officers on November 7, 1973. At that time he made no statement other than listing his address as 1966 Philsar, Apartment No. 1. There was also evidence by the state that Tate had been billed for the utilities at the apartment from May, 1971 to January, 1974.

The substance in the vial discovered in the apartment as outlined above was subsequently proved to be the controlled substance of L.S.D.

The defendant, Tate, testifying in his own behalf, asserted that the apartment was his, but that for two to three weeks prior to its search he had been visiting in Mississippi and that the apartment had been used as a bachelor’s “pad” by many of his friends, who had their own keys. In short, he testified that he had not been in possession of the contraband and that it could have been left there by one of the key holders; that he occupied the north bedroom; that Ellis had lived there with him in 1972; and that Ellis owned an automobile that corresponded with the title found in the dresser drawer.

Tate offered witnesses who supported his testimony as to his whereabouts prior to the search.

The defendant, Ellis, testifying in his own behalf, related that he had lived in the apartment, but had moved in 1972 and was living in Mississippi at the time of his arrest. He further related that on the day of his arrest he was visiting in the apartment with his girl friend when the police arrived to search the premises; that he had kept a key to the apartment, but had no knowledge whatsoever of the seized contraband; that a few minutes prior to the arrival of the narcotic officers, two men and three women had been in the apartment; that the title to his car had been left there when he had moved; and he denied that the jacket containing the marihuana was his.

The defendants’ first assignment of error is that the trial court erred in overruling defendants’ motion for a directed verdict of acquittal. They reason that Ellis being present does not necessarily mean he was in possession of the controlled substances, with reliance on Dishman v. State, 3 Tenn.Cr.App. 725, 460 S.W.2d 855 (1970). They further reason that Tate not being there and evidence that he had not been there for weeks refutes any theory of possession of the drug as to him.

We think under the facts as narrated the jury accredited these circumstances as to defendant, Ellis: (1) Ellis was in the apartment with an opportunity to be in control of the premises; (2) an ounce of marihuana was on the table in front of him; (3) a jacket he asked for and wore on his transportation to headquarters was his and had contained an ounce of marihuana; (4) the title to a car registered to him was found in the dresser drawer, along with L.S.D. and more marihuana; (5) his acknowledgment that he had lived there and had a key to the apartment; and (6) he gave the apartment as his address when placed in custody. We consider these facts to be more than adequate to support the jury’s inference of possession with the intent to sell. Berry v. State, 4 Tenn.Cr.App. 592, 474 S.W.2d 668, 670 (1971); Peters v. State, Tenn.Cr.App., 521 S.W.2d 233, 235 (1974).

As to defendant, Tate, we think the jury accredited these circumstances: (1) Tate had been paying the bill for the use of the utilities at the apartment; (2) he admitted living there prior to the date of search; (3) a medicine bottle with Tate’s name on it was found in the dresser drawer which contained both L.S.D. and marihuana; and (4) he gave the apartment as his address when arrested. These facts and circumstances we think are sufficient to create a presumption that as owner of the premises he had control over or possession of the contraband with the intent to sell. The jury has by its verdict obviously discredited Tate’s alibi testimony and that of his corroborating witnesses.

Defendant, Tate, further contends that the court erred in not directing a ver-diet when the trial court declined to allow proof to impeach the affidavit in the search warrant by the use of alibi witnesses. That affidavit reflects that an informant (not named) had seen Tate at the apartment in possession of the drugs within three days prior to its search. The court had overruled his motion to suppress and found the warrant to be proper. We agree. In Owens v. State, 217 Tenn. 544, at page 545, 399 S.W.2d 507 at page 508 (1965) the following may be found:

“Facts stated in affidavit made for purpose of obtaining search warrant are not subject to contradiction at trial for purpose of suppressing evidence secured by means of the warrant, since magistrate determined verity of facts before he issued warrant, and such judicial act is not subject to review unless there were no material facts upon which magistrate based his discretion.”

Defendant, Tate, also contends that the court erred in allowing into evidence the reading of the affidavit containing the observation of the informant and the argument of the attorney general which referred to that information. With no objection having been made at the proper time in either instance, there is no error. We note that counsel in his opening statement to the jury alluded to what he now complains was error. This assignment is overruled.

Their next assignment of error is that the inference permitted by T.C.A. 52-1432(a) is unconstitutional. We have upheld the constitutionality of this provision in Williams v. State, Tenn.Cr.App., 506 S.W.2d 193, 194, 196 (1973). It is not unconstitutional for being vague or lacking guidelines or allowing a jury to draw an inference from a given fact. We find no error here. This assignment is overruled.

Defendants’ third assignment of error is that denial of a continuance to the defendants violated their right to due process of law and to be confronted by the witnesses against them. Defense counsel contends that the absence at trial of the arresting officer, who testified at the preliminary hearing, was a surprise and handicapped his defense. Defense counsel further contends that he had a right to rely on that officer being subpoenaed because his name was endorsed on the indictments as a witness for the state and therefore the trial court should have sustained either his motion for a continuance or his motion for a mistrial.

We are not impressed that the testimony of the unavailable officer was so critical as to sustain a motion for a mistrial. We are equally unimpressed that the officer’s absence came as a surprise, since the record reveals that defense counsel should have known this fact at least a month before the trial and could have requested a subpoena for this witness. This officer was only one of four officers who made the search and arrest in this case and he was out of the court’s jurisdiction at the time of trial. Under these circumstances, the state is under no obligation to furnish witnesses for the defendants.

An unreported opinion of the United States District Court, Western District of Tennessee, Western Division, styled Hill v. Rose, No. C-72-221, relied upon by the defendants, is not controlling here. In that record the missing witness had given an exculpatory affidavit which would have inured to Hill’s benefit. The missing officer’s testimony here would not have exculpated the defendant. With the court charging the rule of law as to the inference warranted by the failure of a party to call a witness whose testimony would naturally favor that party, we find no error and overrule this assignment.

We have reexamined our posture on denial of bail under T.C.A. 40-1204 where, as here, that act became law after defendants’ arrest. It has ex post facto overtones by their being confined as a result thereof. His assignment in this area is sustained.

Defendants lastly contend that the trial court erred by charging the jury on the parole statutes, T.C.A. 40-3612; T.C.A. 40-3613; T.C.A. 41-332; T.C.A. 41-334, and that under Farris v. State, Tenn., 535 S.W.2d 608 (1976) this is reversible error. The first time this question appears in the record is on April 5, 1976, in a brief by the defendants styled “Amended and Supplemental Brief and Argument and Assignments of Error”. Not having objected to the charge and it not being assigned in the motion for a new trial under Farris v. State, supra, it has no merit. This assignment is overruled.

We think the two judgments are the result of one search in which the different types of contraband were found at or about the same time with no facts supporting possession of the two at separate intervals; therefore, under Wells v. State, Tenn., 517 S.W.2d 755 (1974) and Wells v. State, Tenn.Cr.App., 509 S.W.2d 520, 521 (1973) and Headrick v. State, Tenn.Cr.App., 519 S.W.2d 403 (1974), there may be only one conviction. On the other hand, in the absence of our Supreme Court overruling the above cited authorities, we may safely assume by the enunciation of State v. Black, Tenn., 524 S.W.2d 913 (1975), it has sub silentio undercut the salutary holdings of Wells, Wells and Headrick, by the following language found therein at page 920:

“The statutory elements of the two offenses are different, and neither offense is included within the other.”

Under that rationale we think the two judgments may stand.

Although we think the logic in Wells, Wells and Headrick, supra, is more in line with the intent of the legislature, being an intermediate court we must accept the tenets of Black, supra. The two judgments are accordingly affirmed.

WALKER, P. J., concurs.

O’BRIEN, Judge

dissenting.

I disagree with the view that the decision in State v. Black, 524 S.W.2d 913 (Tenn.1975) has undercut and overruled Wells v. State, 509 S.W.2d 520 (Tenn.Cr.App.1973), affirmed 517 S.W.2d 755 (Tenn.1974).

Plainly, the same circumstances and conditions existed in this case as in Wells, supra, in which our Supreme Court affirmed, and in so! doing said:

“We reason, as did the Court of Criminal Appeals, that all three indictments and their subsequent convictions were for the possession of a controlled substance. The possession of each was made a felony by Chapter 163 of ithe Public Acts of 1971. The record nowhere shows that the possession of each substance was acquired by a separate act. The possession, on the contrary, was a single possession and a single act. The jury found both defendants guilty of the possession, and the defendants do not now challenge that finding. There is sufficient material evidence to support the jury’s conclusion. But since there was, in each case, a single and not a multiple possession, there should be a single and not a multiple conviction and sentencing. . .

I would affirm the conviction for possession of LSD and dismiss the conviction for possession of marijuana.