text:
    SECOND INJURY FUND, Appellant, v. AMERICAN MOTORISTS INSURANCE CO., Appellee.
    No. 4920.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 2, 1976.
    Rehearing Denied Sept. 23, 1976.
    Harry C. Green, Asst. Atty. Gen., Austin, for appellant.
    Lancaster Smith, Dallas, for appellee.
   McCLOUD, Chief Justice.

The question to be decided is whether the 1971 amendment to Sections 12c and 12c-l of Article 8306, Vernon’s Ann.Civ.St., permits reimbursement from the Second Injury Fund to an insurance carrier when the injured employee sustains total and permanent incapacity as a result of a combination of general as opposed to specific injuries.

The trial court entered a $16,000 judgment for the carrier, American Motorist Insurance Company, and the Second Injury Fund has appealed. We reverse and render.

The facts were stipulated. In a severed cause the injured workman, James Williamson, was found to be totally and permanently disabled as a result of a back injury sustained on December 20, 1972, while working for American Motorists Insurance Company’s insured. The judgment in that cause also decreed that a previous 1965 back injury sustained by Williamson while working for the same employer contributed fifty percent to his injury of December 20, 1972. Both the 1965 and 1972 injuries were general injuries.

In Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711 (1961), our Supreme Court construed Article 8306, Sections 12c and 12c-1, to provide reimbursement from the Second Injury Fund, only when a combination of specific injuries, as opposed to general injuries, results in total and permanent incapacity. The court said:

“. . . Neither combinations of general injuries nor injuries resulting in par- tía 1 disability are compensable from the Second Injury Fund . . . ”

Sections 12c and 12c-l, as construed in Keaton, prior to the 1971 amendment, provided:

“Sec. 12c. If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association (Texas Employers’ Insurance Association) shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury; provided that there shall be created a fund known as the ‘Second-Injury Fund’ hereinafter described, from which an employee who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries. Acts 1917, p. 269; Acts 1947, 50th Leg., p. 690, ch. 349, § 1.” (Emphasis added)
“Sec. 12c-l. If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently and totally incapacitated through the loss or loss of use of another member or organ, the association shall be liable only for the compensation payable for such second injury provided, however, that in addition to such compensation and after the combination of the payments therefor, the employee shall be paid the remainder of the compensation that would be due for the total permanent incapacity out of the special fund known as ‘Second-Injury Fund,’ hereafter defined. Acts 1947, 50th Leg., p. 690, ch. 349, § 1.”

The court in Keaton reasoned that Section 12c did not create a cause of action against the Second Injury Fund within itself and the phrase “hereinafter described” found in 12c referred to Section 12c-l where the bounds of liability against the Fund were found.

Sections 12c and 12c-l, as amended in 1971, provide:

“Sec. 12c. If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable for all compensation provided by this Act, but said association shall be reimbursed from the ‘Second Injury Fund’ as hereinafter described, to the extent that the previous injury contributes to the combined incapacity.” (Emphasis added)
“Sec. 12c-l. If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently and totally incapacitated through the loss or loss of use of another member or organ, the association shall be liable for all compensation provided by this Act, not to exceed 401 weeks, but said association shall be reimbursed from the ‘Second Injury Fund,’ as hereinafter described, to the extent that its payment exceeds the amount due for the second injury as above set out. In order to qualify for reimbursement from the ‘Second Injury Fund’ under this section, the association must file its claim with the Industrial Accident Board within 180 days following date of injury, together with evidence of its payment of all compensation provided by this Act and of the preexisting permanent physical impairment qualifying the association for such reimbursement. Good cause for late filing as set forth in Section 4(a), Article 8307, Revised Civil Statutes of Texas, 1925, as amended, shall also apply in such claims for reimbursement. Provided further, if the association makes payment in a lump sum to the injured claimant, the association shall be entitled to reimbursement from the ‘Second Injury Fund’ by lump sum payment.”

Texas Employers’ Insurance Association v. Haunschiid, 527 S.W.2d 270 (Tex.Civ.App. —Amarillo 1975, writ ref. n. r. e.), contains an excellent discussion of the history of Sections 12c and 12c-1. The court there held that after the 1971 amendment, a carrier’s liability for incapacity produced by combined effects of multiple general injuries is not reduced by the percentage of incapacity contributed by compensable general injuries other than the one in suit. See also, Texas Employers’ Insurance Association v. Greswell, 511 S.W.2d 68 (Tex.Civ. App. — Eastland 1974, writ ref. n. r. e.), and Houston General Insurance Company v. Teague, 531 S.W.2d 457 (Tex.Civ.App.— Waco 1975, writ ref. n. r. e.).

American Motorists forcefully argues that the purpose of the Second Injury Fund is totally frustrated if the carrier is not permitted a reduction for prior compensable general injuries or reimbursement from the Second Injury Fund. It points out that the Second Injury Fund was created for the purpose of compensating the injured employee for the total and permanent incapacity he has suffered, without sacrificing the policy of encouraging employment of physically handicapped workers. Miears v. Industrial Accident Board, 149 Tex. 270, 232 S.W.2d 671 (1950). The carrier urges that the previously injured workman will in all probability not be readily employable if the employer’s insurance carrier is required to pay full compensation for incapacity resulting partly from prior compensable general injuries, and also be denied reimbursement from the Second Injury Fund.

In Keaton, the court acknowledged that the Workmen’s Compensation Act should be liberally construed in favor of the injured workman, but stated very clearly that the Second Injury Fund would be liable only when the injured workman sustained total and permanent incapacity as a result of specific injuries. The court concluded:

“. . . We are not to look to the consequences of our action here in limiting the application of the statute to the exact words of the Act . .

The 1971 amendment does not contain language sufficient to show a legislative intent to expand the liability of the Second Injury Fund from that announced in Keaton. The only significant change affecting the Second Injury Fund made by the 1971 amendment was that prior to the amendment the claim against the Fund was given to the injured workman, and the amendment requires that the carrier first pay compensation to the injured workman and then assert its claim for reimbursement from the Fund. Prior to and after the 1971 amendment, however, only combinations of specific injuries resulting in total and permanent incapacity give rise to any claim from the Second Injury Fund. It is presumed that the legislature had full knowledge of the rule announced in Keaton when the 1971 amendment was passed. McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125 (1942). If it had intended to change that rule, it could have easily so stated.

Keaton was recently cited and followed in Houston General Insurance Company v. Teague, 531 S.W.2d 457 (Tex.Civ. App. — Waco 1975, writ ref. n. r. e.). If the Keaton interpretation is too restrictive, in view of the 1971 amendment prohibiting a reduction for prior compensable general injuries, and results in a policy that discourages or prevents the employment of previously injured workmen, then the matter should be addressed to the Legislature. We are bound to follow the statutes as written and interpreted by our Supreme Court.

The judgment of the trial court is reversed and rendered.


source: Caselaw Access Project

author: J. CURTISS BROWN, Chief Justice.

license: Public Domain

text:
    Louis ZACEK, Appellant, v. AUTOMATED SYSTEMS CORPORATION, Appellee.
    No. 1328.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 8, 1976.
    Rehearing Denied Sept. 29, 1976.

      George M. Bishop, Tipton & Bishop, Houston, for appellant.
    David T. Hedges, Jr., Vinson, Elkins, Searls, Connally & Smith, Houston, for ap-pellee.
   J. CURTISS BROWN, Chief Justice.

This is a suit for overtime pay under the Fair Labor Standards Act.

Louis Zacek (Zacek or appellant) filed suit against Automated Systems Corporation (Automated or appellee) to recover overtime pay allegedly due him under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-19. He also sought liquidated damages and attorney’s fees. On the basis of the jury’s answers to special issues, the trial court entered a take-nothing judgment. The plaintiff has perfected this appeal.

Zacek was hired by Automated as a “systems analyst” in May of 1971, at a starting salary of $1,150.00 per month. He worked for Automated until September of 1972, during which time his salary was raised to $1,220.00 per month. The parties stipulated that, during the time he was employed by Automated, Zacek worked a total of 720 hours in excess of forty hours per week, and that he took a total of seventy-eight hours off as “comp time.” The parties further stipulated that Automated was within the provisions of the Fair Labor Standards Act of 1938, which requires, inter alia, that an employee who is employed for more than forty hours in one workweek must be compensated for the excess at a rate not less than one and one-half times the regular rate at which he is employed, unless the employee himself is exempt from this requirement. The central controversy in this case concerns whether Zacek was, or was not, exempt from the provisions of the Act requiring payment of overtime.

Section 13(a) of the Act provides that the overtime pay requirement does not apply with respect to “any employee employed in a bona fide executive, administrative, or professional capacity ... (as such terms are defined and delimited from time to time by regulations of the Secretary [of Labor] . . .).” In answer to Special Issue No. 1, the jury found that Zacek was employed in a bona fide professional capacity, and on that basis the trial court entered the take-nothing judgment.

Exemptions from the Fair Labor Standards Act are to be narrowly construed. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959). The burden of proof respecting such exemptions is on the employer. Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966).

Appellant’s first four points of error assert that there was no evidence to support the jury’s answer to Special Issue No. 1. Special Issue No. 1, the accompanying instruction, and the jury’s answer thereto were as follows:

“Do you find from a preponderance of the evidence that the plaintiff, Louis Za-cek, was an employee employed in a bona fide professional capacity by the defendant, Automated Systems Corporation? “Under the applicable law, the term ‘employee employed in a bona fide professional capacity’ means any employee whose primary duty consists of the performance of work requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, which includes work requiring the consistent exercise of discretion and judgment.
“Answer ‘We do’ or ‘We do not’.
“Answer: We Do”

The relevant portions of the regulation defining “professional,” contained in 29 C.F.R. § 541.3 (1975), read as follows:

“The term ‘employee employed in a bona fide * * * professional capacity’ in section 13(a)(1) of the act shall mean any employee:
(a) Whose primary duty consists of the performance of:
(1) Work requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, . and
(b) Whose work requires the consistent exercise of discretion and judgment in its performance; and
(c) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and
(d) Who does not devote more than 20 percent of his hours worked in the workweek to activities which are not an essential part of and necessarily incident to the work described in paragraphs (a) through (c) of this section; and
(e) Who is compensated for services on a salary or fee basis at a rate of not less than $170 per week . . ., exclusive of board, lodging, or other facilities: . Provided further, That an employee who is compensated on a salary or fee basis at a rate of not less than $250 per week . . . exclusive of board, lodging, or other facilities, and whose primary duty consists of the performance either of work described in paragraph (a)(1) or (3) of this section, which includes work requiring the consistent exercise of discretion and judgment, or of work requiring invention, imagination, or talent in a recognized field of artistic endeavor, shall be deemed to meet all of the requirements of this section.”

Since appellant’s salary was more than $250 per week, the so-called “streamlined test” contained in subdivision (e) is to be applied. The instruction that accompanied Special Issue No. 1 exactly reflected that test.

In ruling on these points, we must of course view the evidence in its most favorable light in support of the jury’s finding, considering only the evidence and inferences that support the finding and rejecting the evidence and inferences contrary to it.

The evidence showed that appellant was employed by Automated as a systems analyst. The business of Automated was to deliver computer systems. This involved both “software” (the instructions put into a computer to make it do what it is supposed to do) and “hardware” (the actual computer machinery and equipment). Appellant’s duties, in general terms, were to design and implement computer control systems. A computer control system is a set of computer programs designed to interrelate so that certain “real-world” tasks or goals can be accomplished through the use of the computer. On any particular project, the systems analysts employed by Automated generally spent about 30% of their time designing a system, 20% actually coding programs on computer cards, and 50% “debugging,” or testing to insure that the programs functioned properly.

During the time that he was employed by Automated, appellant worked on two projects. The first was for the police department in San Diego, California. The second was for a major hospital in Corpus Christi, Texas. Appellant worked on the Corpus Christi project for nine of his sixteen months with Automated.

Sara Hill, who was the project leader in Corpus Christi and who described herself as a “consultant,” testified that she had the job of determining what real-world functions the hospital wanted to accomplish with a computer system. She did this through consultation with the hospital staff and administrators. She then conveyed this information to Automated’s system analysts, of whom appellant was one. It was then appellant’s job to design a system of programs that would accomplish the desired functions.

The president of Automated, John Elvig, stated that a systems analyst’s programs “come mostly out of his imagination.” In both the Corpus Christi and San Diego projects appellant was required to design computer programs for a “mini-computer.” Elvig testified that such computers were the most complex that Automated had to deal with. The mini-computers use a type of computer language called “assembly language.” Elvig described assembly language as being much more complex than other computer languages. He testified that appellant was supervised from an administrative standpoint, but that with regard to the actual work of designing the system in Corpus Christi “he had an inordinate amount of discretion.” This was borne out by the testimony of Ms. Hill, who was appellant’s immediate supervisor in the Corpus Christi project. She stated that she would meet with appellant every couple of weeks to discuss how the system was progressing, what problems appellant might be having with regard to hardware, and so on. She testified that although appellant did not design all of the programs for the minicomputer in the Corpus Christi project, he designed the most complex ones: “The programs for which Mr. Zacek was responsible were kind of the brains of the system; they scheduled the other programs.” This included the “network interrupt handler,” a complex program that allows the computer to adequately field messages arriving milliseconds apart.

The evidence further showed that appellant had a Bachelor of Science degree in mathematics. On his employment application to Automated, appellant wrote: “While in college I took several programming courses which entailed the use of an IBM 1620 computer and which I programmed using Fortran II and ASSEMBLY languages. While at Univac I took a Fortran V programming course for the Uni-vac 1108 under EXEC VIII and also a Cobol course for the 1108.”

There was evidence that appellant’s educational background, as well as his knowledge of the more complicated computer languages, were among the qualifications that influenced Automated in hiring him. Automated’s president stated that a person’s education is a factor in enabling him to do the type of work done by appellant. He stated that a college degree is a “very, very big help,” and is “highly preferred.” He also testified that it is preferable that the degree be in a “scientific discipline field,” such as physics, mathematics, or engineering. The evidence reflected that more and more universities are offering degrees in computer science.

We hold that the record contains some evidence of probative value supporting the jury’s finding that appellant was employed in a bona fide professional capacity. Appellant’s first four points of error are overruled.

Appellant’s points of error five through seven B assert, in essence, that a certain ruling of the Administrator of the Wage and Hour Division of the Department of Labor requires us to hold as a matter of law that computer programmers and systems analysts do not come within the “professional capacity” exemption. The ruling to which appellant refers is an “interpretation” by the Administrator contained in 29 C.F.R. § 541.302(h) (1975), which reads as follows:

“(h) The question arises whether computer programers and systems analysts in the data processing field are included in the learned professions. At the present time there is too great a variation in standards and academic requirements to conclude that employees employed in such occupations are a part of a true profession recognized as such by the academic community with universally accepted standards for employment in the field. Some computer programers and systems analysts may have managerial and administrative duties which may qualify them for exemption under §§ 541.1 or 541.2 . .

The Supreme Court has held that the rulings of the Administrator

“are not, of course, conclusive, even in the cases with which they directly deal, much less in those to which they apply only by analogy. They do not constitute an interpretation of the Act or a standard for judging factual situations which binds a district court’s processes, as an authoritative pronouncement of a higher court might do. But the Administrator’s policies are made in pursuance of official duty, based upon more specialized experience and broader investigations and information than is likely to come to a judge in a particular case. They do determine the policy which will guide applications for enforcement by injunction on behalf of the Government. Good administration of the Act and good judicial administration alike require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons. The fact that the Administrator’s policies and standards are not reached by trial in adversary form does not mean that they are not entitled to respect. This Court has long given considerable and in some cases decisive weight to Treasury Decisions and to interpretative regulations of the Treasury and of other bodies that were not of adversary origin.
“We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944).

Clearly the Administrator’s interpretation regarding systems analysts does not conclusively establish that appellant was not employed in a professional capacity. It has long been held that whether an employee is exempt under the Act is purely a question of fact to be determined upon the consideration of all of the circumstances shown in the record. Walling v. General Industries Co., 330 U.S. 545, 67 S.Ct. 883, 91 L.Ed. 1088 (1947); Hodgson v. Klages Coal & Ice Co., 435 F.2d 377 (6th Cir. 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137 (1971); Hoyt v. General Insurance Co. of America, 249 F.2d 589 (9th Cir. 1957); Schumann v. Ross, 199 F.2d 219 (7th Cir. 1952). Appellant’s points five through seven B are overruled.

Appellant’s eighth point of error asserts that there is insufficient evidence to support the jury’s answer to Special Issue No. 1. We have outlined above some of the evidence tending to support the jury’s finding that appellant was employed in a professional capacity. We have examined the whole record and find that the jury’s answer to Special Issue No. 1 is supported by sufficient evidence. See Annot., 72 A.L. R.2d 1156 (1960). Appellant’s eighth point is overruled.

In his twenty-third and twenty-fourth points of error appellant complains of the trial court’s refusal to submit the following instructions:

“You are instructed that the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. A person who exercises discretion and independent judgment has the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance.”
“An announcement by the employer that no overtime work will be permitted, or that overtime work will not be compensated unless authorized in advance, will not impair the employee’s right to compensation for work which he is actually suffered or permitted to perform.”

A trial court has considerable discretion in deciding what instructions are necessary and proper in submitting issues to the jury. Mobil Chemical Co. v. Bell, 517 S.W.2d 245, 256 (Tex.1974); Tex.R.Civ.P. 277. No abuse of such discretion has been shown. Further, even if the requested instructions could be deemed “proper,” we cannot say that the trial court’s refusal to submit them probably caused the rendition of an improper judgment. Tex.R.Civ.P. 434. Therefore these points of error are overruled.

Since the trial court’s judgment is supportable on the basis of the jury’s answer to Special Issue No. 1, we need not consider appellant’s attacks on their answers to other special issues. The judgment of the trial court is affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Willie Carl WEDGMAN, Appellant, v. Anna Louise WEDGMAN, Appellee.
    No. 5639.
    Court of Civil Appeals of Texas, Waco.
    Sept. 9, 1976.
    Rehearing Denied Oct. 7, 1976.
    Bradley & Geren, Groesbeek, for appellant.
    Cannon, Canon & Reed, Groesbeek, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant Willie Carl Wedgman from judgment granting petitioner Anna Louise Wedgman a divorce; finding William Wesley Wedgman was a child of the parties marriage; appointing appellee managing conservator; and requiring appellant to pay $20. per week support for the child.

Appellee sued appellant for divorce alleging among other matters that the parties were married July 20, 1971; separated on November 15, 1975; that William Wesley Wedgman was born to the marriage July 14, 1974.

Appellant answered that petitioner “has admitted that the son William Wesley Wedgman, born July 14, 1974 is not the child of [appellant], but that Larry Gene Taylor is the father of said child”; that William Wesley Wedgman is not the child of appellant; and that appellant should not be required to pay support for the child.

Appellant did not allege “non-access” or “impoteney”, and the record reflects he did not rely on same.

Trial was before the court which granted appellee divorce, found the child William Wesley to be child of the parties, and required appellant to pay $20. per week child support.

Appellant appeals on 8 points contending the trial court erred:

1) In refusing permission to appellant to introduce evidence appellee had declared in her own writing that her son William Wesley, born July 14,1974 was fathered by her lover Larry Gene Taylor and not by appellant.

2) In refusing permission to appellant to make a bill of exceptions showing appellee had declared in writing that appellant was not the father of the child.

3) In denying appellant the right of fact finding by the court on whether the child was the offspring of appellant or Larry Gene Taylor.

4) In requiring appellant to pay child support for the child.

Appellant tendered in evidence a diary type notebook written by Anna Louise Wedgman telling of her love affair with Larry Gene Taylor. It stated in appellee’s handwriting: “July 14, 1975. Mine and Larry’s baby was a year old today; * * * Larry, our son looks more like you day by day.” The trial court excluded the evidence, and refused to permit appellant to make a bill of exceptions on the exclusion.

The diary notebook in the handwriting of appellee is before us, having been attached to appellant’s brief.

A child born in lawful wedlock is presumed to be legitimate. The presumption of legitimacy is one of the strongest known to the law. Only a finding of non-access (or impotence) would overcome the presumption that the child was the legitimate issue of the lawful marriage during which it was conceived and born. Zimmerman v. Zimmerman, CCA (NWH), 488 S.W.2d 184.

In the case at bar the child was born three years after the parties married, and the parties did not separate for a year and a half after the birth of the child. There is no pleading, evidence or reliance on “non-access” or “impoteney” by the appellant.

If the wife is living with the husband as here, at a time when by the laws of nature the husband might be the father of the child, the presumption is conclusive in favor of legitimacy. Even though the wife commit adultery with another, during such time period, such cannot be shown in evidence. Jones on Evidence, Vol. 1, p. 165, 4th Ed.

The document sought to be introduced, a statement by appellee that the child was fathered by Larry Gene Taylor is simply evidence of appellee’s adultery with Taylor, and was not admissible.

Davis v. Davis, Tex., 521 S.W.2d 603, relaxed the Lord Mansfield rule to permit a spouse to testify as to non-access, but did not alter the requirement of evidence of non-access [or impotence], to bastardize a child conceived and born during lawful marriage of the spouses.

It is normally reversible error to refuse a party the right to perfect his bill of exceptions. But where as here the record discloses the excluded evidence, and same is clearly inadmissible, the error is harmless. Dorn v. Cartwright, CCA, NRE, 392 S.W.2d 181; Barrier v. Beavers, CCA, NRE, 531 S.W.2d 191.

Appellant’s points and ■ contentions are overruled.

AFFIRMED.


author: CADENA, Justice.

text:
    Ramon GARZA, Appellant, v. Crespin TREVINO et al., Appellees.
    No. 15688.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 15, 1976.
    Rey Perez, Alberto M. Ramon, Crystal City, for appellant.
    Hardberger, Branton & Herrera, Inc., Frank Herrera, Jr., San Antonio, for appel-lee.
   CADENA, Justice.

Plaintiff, Ramon Garza, filed this suit to prevent the certification of defendant, Crespin Trevino, as the candidate of the Raza Unida Party for the office of sheriff of Zavala County, and the printing of Trevino’s name as the candidate of such party for the office of sheriff at the general election to be held on November 2,1976. Plaintiff appeals from a judgment declaring Trevino “the official nominee for the office of Sheriff of Zavala County, Texas, for the Raza Unida Party.” Defendants, in addition to Trevino, are Manuel Cortinas, Jr., chairman of the Executive Committee of the Raza Unida Party of Zavala County, and Virginia Muzquiz, County Clerk of Za-vala County.

Plaintiff and Trevino were candidates for nomination for the office of sheriff at the primary election held on May 1,1976, and it is undisputed that Trevino received a majority of the votes cast at such election. Plaintiff contends that Trevino is ineligible to be a candidate for sheriff because on February 2,1976, the last date for filing for a place on the ballot at the primary election, Trevino had not been a resident of Zavala County for at least six months as required by Subdivisions 1 and 2 of Article 1.05. The suit for injunction is brought under the provisions of Article 1.07.

It is undisputed that for some time after their marriage in 1963 plaintiff and his wife maintained their residence in the City of Pearsall, Frio County, Texas, and that Mrs. Trevino still lives in Frio County, where she is regularly employed and where the Trevino children attend school.

For some time prior to November 1,1973, Trevino had been employed in San Antonio, Bexar County, Texas. On November 1, 1973, he was employed as a deputy sheriff of Zavala County, stationed in the City of Batesville in such county, and since that date he has maintained his place of abode in Batesville. He visits his wife and family in Frio County on his day off every week and he spends his vacation with his family in Frio County. Mrs. Trevino often spends the weekends with her husband in Bates-ville.

Mrs. Trevino testified that she chose to remain in Pearsall because she would be unable to find suitable employment in Batesville and because she considered the educational facilities in Batesville to be inferior to the facilities available in Pearsall. She stated that she would not move to Zavala County as long as her husband was stationed in Batesville, but that she might consider joining him if he obtained employment in Crystal City, the county seat of Zavala County.

The pertinent statutory provisions, found in Article 5.08, as amended in 1967, are as follows:

(a) As used in this code, the word “residence” means domicile; i. e., one’s home and fixed place of habitation to which he intends to return after any temporary absence.
******
(f) For a married man not permanently separated from his wife, the place where his family lives shall be considered his residence, but if it be a temporary establishment for his family, or for transient purposes, it shall not be so considered.
(g) If a married man has his family living in one place and he does business in another, the former shall be considered his residence, but when a man has taken up his abode at any place with the intention of remaining there and making it his home, and his family refuses to reside with him, then such place shall be considered his residence.

The evidence supports the trial court’s conclusion that, under subdivision (g), Trevino became a resident of Zavala on November 1, 1973, when he became deputy sheriff and moved to Batesville. For some time prior to that date, he had been seeking employment as a law enforcement officer and had applied for appointment as a law enforcement official in at least five cities. The evidence shows that the sheriff of Za-vala County made the statement that if Trevino were appointed deputy sheriff for that county, it would be necessary for Trevino to “move and live in Zavala County.”

Plaintiff argues that subdivision (g) is inapplicable because the evidence shows the continued existence of “community, intimacy or close relationships between” Mr. and Mrs. Trevino, despite the fact that they were living in different places. This contention must be rejected since there is nothing in the statutory language indicating a necessity for a termination of the close conjugal relationship. The application of the subdivision in question is not dependent on “separation” in the sense that the parties discontinue the prior existing husband-wife relationship. The residence of a married person who is permanently separated from his or her spouse is expressly governed by subdivision (e) of Article 5.08, not by subdivision (g).

Plaintiff also insists that defendant’s wife has not “refused” to accompany him to Zavala County, since the testimony of Mrs. Trevino indicates that under certain conditions she might rejoin her husband and that, therefore, her refusal to move to Za-vala County is merely a conditional refusal. But the statute merely requires a “refusal.” There is no requirement that her reasons be such as would be categorized as valid by a court, nor is it required that the refusal be a categorical refusal to follow the husband under any circumstances. It is sufficient if the wife, for whatever reasons, decides not to live in the same household with her husband.

The judgment of the trial court is affirmed.

      . All statutory references are to Tex. Election Code Ann.


author: SHANNON, Justice.

text:
    John MILLER, Appellant, v. SOUTHERN INVESTMENT CORPORATION et al., Appellees.
    No. 12444.
    Court of Civil Appeals of Texas, Austin.
    Sept. 15, 1976.
    Jeff Crane, Vinson, Elkins, Searls, Con-nally & Smith, Houston, for appellant.
    Robert C. (Lou) McCreary, Austin, for appellees.
   SHANNON, Justice.

Appellant filed the transcript in this cause with the Clerk of this Court on February 25, 1976. To date, appellant has not filed his brief.

Appellant’s brief was due to be filed thirty days after February 25. Texas R.Civ.P. 415 provides that when the appellant has failed to file his brief within the time prescribed, the appellate court may dismiss the appeal for want of prosecution, unless good cause is shown for such failure and appellee has not suffered material injury thereby.

The time for filing appellant’s brief has long passed and appellant has shown no reason for his failure to file such brief. Accordingly, the appeal is dismissed for want of prosecution. Cuellar v. H. E. Butt Grocery Company, 397 S.W.2d 873 (Tex.Civ. App.1965, no writ), Tello v. Hankins, 468 S.W.2d 115 (Tex.Civ.App.1971, no writ), see Haynes v. J. M. Radford Grocery Company, 118 Tex. 277, 14 S.W.2d 811 (1929) in which the court construed former Rule 38. ■

Dismissed for want of prosecution.

PHILLIPS, C. J., not participating.


author: RALEIGH BROWN, Justice.

text:
    In the Matter of G. T. H.
    No. 4981.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 16, 1976.
    W. B. Wright, Jr., Cisco, for appellant.
    Emory C. Walton, Criminal Dist. Atty., Eastland, for appellee.
   RALEIGH BROWN, Justice.

This is an appeal by minor, G.T.H., from the denial of his application for Writ of Habeas Corpus for release from a facility that has not been certified as suitable for the detention of children.

Section 51.12, Texas Family Code, provides in part:

“(c) In each county, the juvenile board, or if there is none, the judge of the juvenile court, shall personally inspect the detention facilities at least annually and shall certify in writing to the authorities responsible for operating and giving financial support to the facilities that they are suitable or unsuitable for the detention of children in accordance with:
(1) the requirements of Subsection (a) of this section;
(2) the requirements of Article 5115, Revised Civil Statutes of Texas, 1925, as amended, defining ‘safe and suitable jails,’ if the detention facility is a county jail; and
(3) recognized professional standards for the detention of children.
(d) No child shall be placed in a facility that has not been certified under Subsection (c) of this section as suitable for the detention of children. A child detained in a facility that has not been certified under Subsection (c) of this section as suitable for the detention of children shall be entitled to immediate release from custody in that facility.” (Emphasis added)

It is undisputed minor, G.T.H., is detained in the Eastland County jail, a facility that had not been certified under Subsection (c) of the Article. Subsection (d) expressly provides the consequence of a failure to comply with Subsection (c). The provision is clearly mandatory. General Provisions, 5 Tex. Tech L.Rev. 531 (1974).

The Legislature obviously recognized the difficulties presented by such a mandatory statute and by amendment, effective September 1, 1975, provided:

“(e) If there is no certified place of detention in the county in which the petition is filed, the designated place of detention may be in another county.”

We reverse and render. The sheriff is ordered to release the minor from the East-land County jail.


text:
    Lydia WOCHNIK, Relator, v. Douglas H. SMITH, Respondent, and Bob Melton, Corespondent.
    No. 5654.
    Court of Civil Appeals of Texas, Waco.
    Sept. 30, 1976.
    Rehearing Denied Oct. 7, 1976.
    McNamara & McNamara, Waco, for relator.
    William J. Hix, Gatesville, for corespondent.
   OPINION

McDONALD, Chief Justice.

Lydia Wochnik, Relator seeks to file petition for Writ of Mandamus against Respondent Smith, County Judge of Coryell County, and Bob Melton, Corespondent. Relator’s tendered petition for Writ of Mandamus asserts that in Cause 2204, Lydia Wochnik v. Bob Melton, Relator sued corespondent Melton in County Court (Originally in the Justice Court) for Forcible Entry and Detainer for possession of land [93 acres] in Coryell County; that relator owned a Vi interest in such land; that there is no evidence she or anyone authorized by her leased her interest in the land to Melton, for which reason she was entitled to judgment; but that the County Judge rendered judgment Melton have possession of the land until December 30, 1976.

Relator asserts that since no appeal lies the judgment is subject to correction by Writ of Mandamus from this court to the Respondent County Judge, directing him to enter judgment for Relator.

The question is thus posed: Does this court have power or jurisdiction to issue Writ of Mandamus in this case?

There is no such thing as inherent power of a court, if, by that be meant a power which a court may exercise without a law authorizing it. Pope v. Ferguson, Tex., 445 S.W.2d 950.

The Courts of Civil Appeals are given power and jurisdiction to issue Writs of Mandamus by only 4 Statutes.

Article 1823: “Said courts and the judges thereof may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.”

Article 1824: “Said Courts * * * may issue the writ of Mandamus to compel a Judge of the District or County Court to proceed to trial and judgment in a cause, returnable as the nature of the case may require.”

Article 1735a concerns political parties and is not here applicable.

Article 6049c concerns acts of the Railroad Commission and is not here applicable.

This Court of Civil Appeals’ jurisdiction to grant a writ of mandamus is thus limited to the enforcement or protection of our jurisdiction, or to compel a District or County Judge to proceed to trial and judgment. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 438; Uvalde Rock Asphalt Co. v. Loughridge, CCA, NWH, 423 S.W.2d 602; Ware v. Marquez, CCA, NWH, 511 S.W.2d 594; Knox v. Craven, CCA, NWH, 248 S.W.2d 955. Knox, supra, expresses the rule thusly: “Courts of Civil Appeals have only the power to issue writs of mandamus as provided for in R.C.S. Articles 1823 [and], 1824. * * * This power of Courts of Civil Appeals, under Article 1824, is merely the power to compel the trial judge ‘to proceed to trial and judgment in a cause,’ not the power to control the character of the judgment to be entered by him.”

And Ridley v. McCallum, 139 Tex. 540, 163 S.W.2d 833, 835 expressly holds: “In the absence of a statutory grant of that authority [the power of a Court of Civil Appeals to issue a Writ of Mandamus], it does not exist.”

Writ of Mandamus from this court in the instant case will not protect or enforce our jurisdiction pursuant to Article 1823; and the writ is not sought to compel the trial court to proceed to trial and judgment pursuant to Article 1824.

Actually the writ here sought is to compel the trial court to render the judgment Relator asserts the evidence required the trial court to render. As noted we do not have the jurisdiction or power by Writ of Mandamus to control the character of the judgment rendered by the trial court.

Motion of Relator for leave to file petition for Writ of Mandamus Denied.

      . Our Supreme Court has power and jurisdiction to issue Writs of Mandamus in a great number of cases; See State ex rel. Pettit v. Thurmond, Tex., 516 S.W.2d 119.


author: HOLMAN, Judge. SEILER, Chief Justice BARDGETT, Judge

text:
    STATE of Missouri, Respondent, v. Jack SANDERS, Appellant.
    No. 59349.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.
    Rehearing Denied Oct. 12, 1976.

      John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, Philip M. Koppe, Preston Dean, Asst. Attys. Gen., Jefferson City, for respondent.
    James C. Jones, St. Louis, for appellant.
   HOLMAN, Judge.

Defendant was charged with murder in the first degree. See Section 559.010, RSMo 1969. The jury found him guilty of the offense of manslaughter and his punishment was fixed at imprisonment for a term of five years. Defendant appealed to the St. Louis District of the Court of Appeals. That court adopted an opinion affirming the judgment. Upon application of respondent we ordered the case transferred to this court. It will be finally determined here the same as on original appeal. Art. V, Sec. 10, Mo.Const.

Portions of the opinion of the court of appeals have been adopted without the use of quotation marks.

Defendant’s contention on this appeal is that the trial court erred in failing to give an instruction on excusable homicide by reason of accident. He offered two instructions upon that subject.

During a fight between defendant and her husband, Linette Robinson received a mortal stab wound in the chest four inches deep which pierced her heart. There is no question but that the argument and fight between defendant and Robinson was the result of a belief on the part of defendant that Robinson had previously burglarized his apartment.

There was a substantial difference in the testimony as to what occurred immediately prior to the casualty. According to Kenneth Robinson, husband of the deceased, and Mandy Hall, the grandmother of Kenneth, appellant knocked on the door of theii apartment and asked to see Kenneth, and he then forced Kenneth at knife point to go up the stairs to appellant’s apartment. There then occurred a physical struggle over the possession of a knife. Kenneth testified that it was the knife that appellant used to force him upstairs, but appellant testified that it was a knife that Kenneth had grabbed from appellant’s kitchen table. During this struggle, Linette Robinson, Kenneth’s wife, entered the doorway. Kenneth testified that all she did was scream, “leave him alone,” and that she had no knife. Ellen Walker, who lived with appellant, testified that Linette entered the door with what “seemed” to be a knife, and that she “stabbed” at appellant. Immediately after Linette’s entry into the room she was stabbed and sustained wounds which resulted in her death. Kenneth testified that Linette “came and he [appellant] saw her and he turned around and stabbed her,” but he admitted that appellant’s body blocked his view and that he did not see the actual stabbing. After she was stabbed, Linette went downstairs and collapsed in her bedroom. Mandy Hall testified that when Linette came downstairs she said, “Mama, that man upstairs done stabbed me.” In the meantime Kenneth ran out of the building with appellant chasing him, and according to Mandy Hall appellant said to her, “I am going to kill your damned grandson.”

We shall set forth in detail the testimony of appellant which he contends entitled him to an instruction on the defense of excusable homicide.

After appellant testified that Kenneth grabbed a knife from a table in appellant’s apartment, and that a struggle occurred between the two for possession of it, he testified, in the parts material, as follows:

Q. What happened next?
A. Well, my back was at the door there, and Ellen came around from the bedroom, she was hollering ‘you all stop, stop Jack, stop Jack.’ I couldn't stop because we was still wrestling. He was trying to hurt me. My back was at the door. She said ‘watch your back.’ By me turning to see what it was * * * Kenneth was facing me face to face — he had hold of it and I had hold of it — my ankle [angle?] was like this (indicating) we went like this (indicating) — into the body, whoever was behind me would have got stabbed — because I didn’t know.
* * * * * *
Q. What happened next?
A. The girl was inside. She was all the way in the door. Ellen said she was stabbing at me. I don’t know. After I came around I seen a shiny object in her hand. I don’t know if it was a knife or not, but we hit into her somewhere — I don’t know where. She fell out the door like that (indicating). Kenneth and I continued to wrestle. He ran from me. I chased him because I didn’t know if he was going after Ellen or what.

Ellen testified that Linette ran into the apartment and stabbed at appellant and that she “hollered — I was hollering when she ran in the door. I said ‘look out’ or ‘watch your back’ or something of that sort, you know, when I seen her run in the door.” She then testified: “They were still struggling, Kenneth and Jack. There was a whirl — as if a little fast movement between the two of them, then I seen Linette fall backward, and when she fell backward I started running.”

At the outset of our consideration of this appeal we must deal with the State’s contention that the point here involved was not sufficiently developed in the assignments contained in the motion for new trial and hence is not preserved for appellate review. The assignment in question is that, “It was error for the Court to deny defendant’s request for Instruction A because it was warranted by the evidence.” An exactly similar assignment related to Instruction B. Our Rule 27.20(a) requires that “A motion for a new trial shall be in writing and must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.” The decisions of this court have clearly ruled the contention before us in a manner favorable to the State’s assertion.

In State v. Cheek, 413 S.W.2d 231, 238 (Mo.1967) we stated that, “Supreme Court Rule 27.20(a) provides that a motion for new trial ‘must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.’ In discussing that rule we recently said: ‘Among other assignments in the motion for a new trial is the contention that the court erred in refusing to instruct on manslaughter; that such an instruction was requested and refused and that the facts in the case warranted such an instruction. We think this assignment wholly insufficient, under the facts of this case, to comply with Supreme Court Rule 27.20 in that it does not set forth in detail and with particularity the specific grounds or cause therefor, in that it does not indicate in any manner what facts in evidence were considered sufficient to warrant such an instruction.’ State v. Luttrell, Mo.Sup., 366 S.W.2d 453, 459. To like effect, see also State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335[15], State v. Kukovich, Mo.Sup., 380 S.W.2d 324[10], State v. Sprout, Mo.Sup., 365 S.W.2d 572[9], State v. Pope, Mo.Sup., 364 S.W.2d 564[2], and State v. Benjamin, Mo.Sup., 309 S.W.2d 602[8]. As we have indicated, defendant in the case before us, has completely failed to specify any facts in evidence which would have supported a submission of manslaughter by culpable negligence. In that situation we rule that this assignment wholly fails to comply with S.Ct.Rule 27.20(a) and hence does not preserve anything for review.” To like effect see State v. Mosley, 415 S.W.2d 796[3, 4, 5] (Mo.1967) and State v. Schulten, 529 S.W.2d 432[8] (Mo.App.1975).

In the case before us there was no indication whatever in the assignments as to the facts in evidence that would have supported the giving of an excusable homicide instruction. Therefore, in accordance with the cases heretofore cited we must rule that these assignments failed to comply with Rule 27.20(a) and hence did not preserve the alleged error for appellate review.

Defendant, although contending that the assignments are sufficient, suggests alternatively that we should review the contention under Rule 27.20(c) which reads as follows: “Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.” In the exercise of our discretion we have decided to review the contention under said rule.

The court gave an instruction on self-defense but refused the request for one on the defense of excusable homicide by reason of an accidental killing. These two defenses are inconsistent but are both required to be submitted where supported by the evidence unless defendant’s personal testimony is relied upon to support both. State v. Wooten, 498 S.W.2d 562[3] (Mo. 1973). Here, the defendant’s testimony does not in any manner support the self-defense submission. Therefore, if his testimony does support the theory of accident the excusable homicide instruction should have been given.

The relevant testimony of defendant has been heretofore set out. It is rather vague and indefinite as to just what occurred during his struggle with Robinson. It does, however, clearly indicate that defendant at least had partial control of the knife at the time Linette was stabbed. There is also no indication in his testimony that the stabbing was intentional. It therefore would seem to follow that if the jury believed that testimony it reasonably could have found that the stabbing was accidental. It follows that the court should have given an instruction submitting the defense of accident.

It must be kept in mind, however, that our ruling does not necessarily mean that the judgment should be reversed and the cause remanded for a new trial. We have reviewed this point under the plain error rule which provides that such relief be granted only when the court deems that the error has resulted in “manifest injustice or miscarriage of justice.” Our cases have held that it is our duty to review the facts and circumstances in each case and to determine that question on a case to case basis. See State v. Patterson, 443 S.W.2d 104[2] (Mo.1969) and concurring opinion of Finch, C. J., in State v. Randolph, 496 S.W.2d 257 (Mo.1973).

We have carefully reviewed the transcript in this case and have concluded that no manifest injustice or miscarriage of justice resulted from the failure of the court to give an excusable homicide instruction. The reasons for our conclusions are twofold. In the first place our review of the transcript indicates generally that defendant received a fair trial. Secondly, we have the view that defendant could have argued the accident defense even though no accident instruction was given.

The court gave instructions submitting first and second degree murder and manslaughter. The two murder submissions required a finding that defendant “intended to take the life of Linette. . . . ” While the manslaughter instruction did not contain that requirement the fact of an intentional killing is inherent in that offense. See definition on page 9 of chapter on manslaughter in Committee Comments on MAI-CR. If the killing of Linette was accidental it certainly was not intentional and defendant, upon such a finding by the jury, was entitled to be acquitted. Therefore, in arguing the issue of intent defendant could argue that it was an accidental killing. We have examined the argument made by the attorney for defendant and while he did not use the word accident he stressed the testimony of defendant indicating that the stabbing was accidental and concluded therefrom that defendant was “not at fault.” Defendant’s attorney summed up the situation rather succinctly when he told the jury, “If you believe Kenneth Robinson, . . then Jack Sanders is guilty as charged. On the other hand, if you believe the testimony of Ellen Walker and Jack Sanders, then . . . Jack Sanders is not guilty.” The jury obviously believed the State’s witnesses and did not believe defendant and Ellen Walker.

We have not overlooked the fact that if this contention had been properly preserved for review we would likely reverse and remand as a matter of policy. State v. Ameen, 463 S.W.2d 843 (Mo.1971). However, in endeavoring to determine the presence of “manifest injustice” we are warranted in adopting a more practical view of the result of the failure to give the instruction.

While the jury was deliberating, a request was communicated to the court as follows: “Jury request photograph — the one he showed the jury — the one with knife on it.” The parties agree that this was State’s Exhibit No. 9 which was a photograph, not of the place where the struggle took place and where Linette was stabbed, but of the room in the apartment downstairs where Linette collapsed and died. It was not identified at trial except that it was a “picture of the general interior of that bedroom at Two North.” The court denied the request for the exhibit and instructed the jury that “you are to consider same as you recall and remember it to be.” From our examination of the exhibit it appears that there is a rather large knife lying on the floor of the room.

Defendant admits that permission to take evidentiary exhibits into the jury room is within the sound discretion of the trial court. See State v. Arrington, 375 S.W.2d 186 (Mo.1964). He argues, however, that the court’s denial in this case was an abuse of discretion because there was no reason to deny the request, and for the jury to be able to review what was shown on the photograph might have been helpful in its deliberations on the issue of self-defense.

In the exercise of its discretion the trial court might have permitted the photograph to be taken to the jury room, but the jury had examined the photograph during the trial, and it was only one item of the total evidence of the case. In the exercise of its discretion, the trial court apparently concluded that Exhibit No. 9 should be treated like the other evidence, and we cannot say that such was an abuse of discretion. The point is disallowed.

The judgment is affirmed.

MORGAN, HENLEY and DONNELLY, JJ., concur.

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

BARDGETT, J., dissents in separate dissenting opinion filed.

FINCH, J., dissents.

SEILER, Chief Justice

(dissenting).

I agree with the principal opinion that the court should have given an instruction submitting the defense of accident. However, I do not believe that the defendant received a fair trial without such an instruction or that the fact that he could have argued without the instruction that the killing was accidental was in practical effect the equivalent of the instruction, so that the failure to give it was not a manifest injustice.

If the court had given the instruction as it was required to do, whether asked for or not, then this is what the jury would have been told in such an instruction according to MAI-CR:

“One of the issues in this case is whether the death of Linnette Robinson was an excusable homicide. By ‘excusable homicide’ is meant the killing of another by accident or misfortune under the circumstances submitted in this instruction. On that issue you are instructed as follows:

“1. The state has the burden of proving beyond a reasonable doubt that the death of Linnette Robinson was not an excusable homicide. The defendant is not required to prove that the death was excusable. If the death was an excusable homicide, or if the evidence in this case leaves in your mind a reasonable doubt as to whether the death was an excusable homicide, then you must find the defendant not guilty.

“2. You will acquit the defendant on the ground of excusable homicide and return a verdict of not guilty if the death of Lin-nette Robinson was the result of accident or misfortune in a struggle between defendant and another for control of a knife when she was stabbed without unlawful intent and without reckless disregard for human life and safety.”

This would have put the defense of accidental homicide squarely in front of the jury with the burden of proof on the state to show that it was not accidental, and in my opinion arguing accident obliquely as not being a part of manslaughter is by no means the practical equivalent of having and being able to argue a direct instruction on the issue. In fact, as shown by the statement of facts in the majority opinion, the case was a close one and the jury could very well have believed that the issue of accident was in doubt, that defendant had not proved it, and hence they could not find for defendant on that basis which would have been a mistaken line of reasoning on the jury’s part and which the instruction would have disspelled. There is no way to tell, of course, what the jury did or did not think in this case. Everything that we say about that is mere speculation. That’s one reason for having written instructions to guide the jury. We still do not know that the jury follows written instructions, but it’s the best system we have and defendant in this case was deprived of an instruction to which under the majority opinion he clearly was entitled. This is not the way defendant should have been tried. The state got everything it was entitled to, but the defendant did not. Under the circumstances this seems to me to be a clear example of manifest injustice against which we should give relief.

I would reverse and remand for a new trial.

BARDGETT, Judge

(dissenting).

I respectfully dissent. The defendant specifically requested the MAI-CR excusable homicide instruction which was refused. The motion for new trial alleged error in failing to give that instruction because “it was warranted by the evidence”. When the point is so stated with reference to a specific MAI-CR instruction that has been requested, I believe the error is preserved for review. The principal opinion demonstrates that there was evidence to support the excusable homicide instruction. Therefore I would reverse and remand for error in refusing to give the requested instruction.


author: BARDGETT, Judge.

text:
    Edward A. OCKEL, V., Petitioner, v. Honorable James T. RILEY and Missouri State Board of Probation and Parole, Substitute Parties for Melvin Twiehaus, Respondents.
    No. 59249.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.
    Rehearing Denied Oct. 12, 1976.

      William R. Dorsey, Dorsey & Dorsey, Clayton, for petitioner.
    Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondents.
   BARDGETT, Judge.

Edward A. Ockel, V., filed an original petition for writ of habeas corpus in this court naming the sheriff of Warren county as respondent and seeking an order discharging him from probation on the grounds that the circuit judge of Cole county continued his probation for two years beyond April 17, 1975, the expiration date of the original period of probation, without prior notice and hearing. It is petitioner’s contention that due process of law requires notice and hearing prior to an order continuing a person on probation, and that because he was not afforded notice and hearing prior to the expiration of his original term he was automatically discharged from probation by operation of law under section 549.111(1), RSMo 1969.

The writ issued and respondent filed his return asserting he, sheriff of Warren county, was holding petitioner in detention by virtue of a probation violation warrant issued September 22,1975, pending a hearing to determine whether the probation granted April 18, 1972 (original term) should be revoked.

Petitioner filed an answer in which he admitted being detained but denied the detention was lawful asserting he had been discharged from probation by operation of law on April 17, 1975.

On November 13, 1975, petitioner moved to substitute the circuit judge and the state board of probation and parole of Cole county as respondents because petitioner had been released from the custody of the Warren county sheriff, but petitioner was still being maintained on probation by order of the circuit judge of Cole county under the supervision of the board of probation and parole. The motion was sustained and the parties ordered substituted.

Respondent circuit judge then filed a “Motion for leave to amend Response [return] to writ of Habeas Corpus” together with his amended return. Leave to amend response was granted December 22, 1975, and petitioner was ordered to file answer to amended response. Petitioner filed “Denial of Amended Return in Habeas Corpus” on December 30, 1975, and the cause has been briefed and argued.

“In a habeas corpus proceeding, the petition for the writ is merely a preliminary pleading which, upon the issuance of the writ, has fully served its purpose and drops out of the case when the return thereto is made. State ex rel. Burtrum v. Smith, 357 Mo. 134, 206 S.W.2d 558, 561[1] (banc 1948). The return becomes the principal pleading which the petitioner can traverse only by reply. Thus, since the return is responsive to the writ, and not the petition, the issues in habeas corpus are, in the ordinary manner, framed not by the petition but by the return and the traverse by way of reply. Thompson v. Sanders, 334 Mo. 1100, 70 S.W.2d 1051, 1052[1] (banc 1934). If the petitioner fails to join issue on the return, the facts alleged therein are taken as conclusive and true, and the only question which remains is whether, under such facts, the restraint is authorized as a matter of law. Ex parte Thornberry, 300 Mo. 661, 254 S.W. 1087, 1089[3] (banc 1923).” Ryan v. Wyrick, 518 S.W.2d 89, 91 (Mo.App.1974).

In this case the amended return alleges the plea of guilty before respondent on April 18, 1972; that respondent suspended imposition of sentence and placed petitioner on probation for three years; that petitioner returned to and continued to reside in Warren county, Missouri, and was under supervision of the Missouri state board of probation and parole; that petitioner exhibited irresponsibility toward the technical conditions of probation; that in July 1972 he left the state without permission; that petitioner was notified that this was a violation of probation; that petitioner missed several appointments with his parole officer; that on November 28, 1973, petitioner was arrested for speeding and driving while intoxicated and on September 6, 1974, was convicted of both offenses and fined $250 on the speeding charge. It alleged that on February 6,1975, a probation violation warrant was issued for his arrest which alleged that he had violated that condition of probation which required obedience to the laws; that on February 9, 1975, petitioner was arrested and incarcerated by the sheriff of Warren county; that on February 10, 1975, petitioner was interviewed by his probation officer and discussed certain alleged violations of probation and admitted he had assaulted a named individual in a domestic dispute; that he made trips to the state of Nevada without permission and that he kept a gun at his bar. On February 10, 1975, the probation violation warrant was withdrawn.

The amended return further alleged that prior to February 24,1975, petitioner’s probation officer fully informed petitioner that she (probation officer) was applying to the circuit judge to extend petitioner’s probation and her reasons therefor; that on February 24, 1975, respondent judge extended the probation for two years and on February 28, 1975, petitioner was notified by letter of the extension.

Petitioner in his pleading entitled, “Denial of Amended Return in Habeas Corpus”, admits he is in custody of the state board of probation and parole but denies that the “custody” is legal on the ground that he was automatically discharged from probation on April 17, 1975.

The original term of probation ended April 17, 1975. Petitioner admits in his brief of receiving a letter from his probation officer on or about March 1, 1975, which stated that his probation had been extended from April 17, 1975, for a period of two years until April 17, 1977.

The petitioner did not deny the factual allegations of respondent’s amended response and therefore those allegations will be taken as true. Ryan v. Wyrick, supra, 518 S.W.2d at 91.

The incident that triggered the instant petition for writ of habeas corpus was the act of the sheriff of Warren county in taking petitioner into custody on September 23, 1975, under a probation violation warrant. On or about October 6, 1975, an administrative hearing was held by a probation and parole officer to determine probable cause as to the charges of probation violation. The hearing officer filed his report with respondent on October 29, 1975, and on October 31,1975, respondent ordered petitioner released from confinement. This order left petitioner on probation under the supervision of the state board of probation and parole.

The Missouri statutes with reference to judicial probation and parole are as follows:

Section 549.061, RSMo 1969, as amended 1975, provides:

“The circuit and criminal courts of this state, and the court of criminal correction of the city of St. Louis and boards of parole created to serve any court have power, as herein provided, to place on probation or to parole persons convicted of any offense over which they have jurisdiction; except as otherwise provided in section 195.200, RSMo, and sections 559.011 and 559.013.”

Section 549.071, RSMo 1969, provides:

“1. When any person of previous good character is convicted of any crime and commitment to the state department of corrections or other confinement or fine is assessed as the punishment therefor, the court before whom the conviction was had, if satisfied that the defendant, if permitted to go at large, would not again violate the law, may in its discretion, by order of record, suspend the imposition of sentence or may pronounce sentence and suspend the execution thereof and may also place the defendant on probation upon such conditions as the court sees fit to impose. The probation shall be for a specific term which shall be stipulated in the order of record. In the case of a felony offense no probation under this chapter shall be granted for a term of less than one year, and no probation shall be granted for a term of longer than five years. In the case of a misdemeanor offense no probation shall be granted for a term of longer than two years. The court may extend the term of the probation, but no more than one extension of any probation may be ordered.
“2. The courts, subject to the restrictions herein provided, may, in their discretion, when satisfied that any person against whom a fine has been assessed or a jail sentence imposed, will, if permitted to go at large, not again violate the law, parole the defendant upon such conditions as the court sees fit to impose.”

Section 549.101(1), RSMo 1969, provides:

“The court granting probation or parole may at any time before order of discharge without notice to the defendant order his apprehension by the issuance of a warrant for his arrest and his appearance in court forthwith. Any probation or parole officer assigned to or serving the court or judge having jurisdiction may arrest such defendant without a warrant, or may deputize any other officer with power of arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. The written statement delivered with the defendant by the arresting officer to the official in charge of a county jail or other place of detention shall be sufficient warrant for the detention of the defendant. After making an arrest the probation officer shall present to the detaining authorities a similar statement of the circumstances of violation. The court may in its discretion with or without hearing, order the probation or parole revoked and direct that the sentence theretofore imposed be commenced and order execution thereof or in the event imposition of sentence was suspended the court may pronounce sentence and order execution thereof. The court may in its discretion, order the continuance of the probation or parole upon such conditions as the court may prescribe. The court in its discretion may order the allowance in mitigation of the sentence credit for all or for part of the time the defendant was upon probation or parole.”

Section 549.111(1), RSMo 1969, provides:

“When a defendant who has been placed upon probation or parole for the term prescribed by the court, and the court granting the probation or parole is satisfied that the reformation of the defendant is complete and that he will not again violate the law, the court shall, by order of record, grant his absolute discharge. When a defendant has completed the term of probation prescribed by the court, if the original order of probation has not been amended, modified, extended or revoked by the court, he shall automatically be absolutely discharged from the probation and from the supervision of the board of probation and parole and the court shall so note by order of record. The order operates as a complete satisfaction of the original judgment by which the fine or jail sentence or commitment to the state department of corrections was imposed or suspended.”

Section 549.141, RSMo 1969, provides:

“The action of any court in granting, denying, revoking, altering, extending or terminating any order placing a defendant upon probation or parole is not subject to review by any appellate court.”

The statutes noted supra place wide discretion in the trial judge with respect to all aspects of judicial probation. It must be noted at the outset, however, that the provisions of the Missouri statutes which allow for revocation of probation or parole and consequent imprisonment without notice and hearing are violative of the procedural due process requirements of the Fourteenth Amendment of the United States Constitution. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Moore v. Stamps, 507 S.W.2d 939 (Mo.App.1974); Brandt v. Percich, 507 S.W.2d 951 (Mo.App. 1974). Earlier Missouri cases held that under section 549.101, supra, a probationer was not entitled to a hearing on revocation of probation. State v. Phillips, 443 S.W.2d 139 (Mo.1969); State v. Small, 386 S.W.2d 379 (Mo.1965); but, as noted supra, those rulings have been superseded by Morrissey and Gagnon. Implicit in this court’s holding in the earlier cases that the statutes of Missouri do not require notice and hearing on probation revocation is the holding that notice and hearing are not required by statute with respect to the extension or continuation of probation — that the trial court may, with or without a hearing, extend the probation.

Petitioner does not claim the right to notice and hearing on the grounds that the Missouri statute so requires but proceeds on the basis that the statute authorized the judge to order continuation or extension of probation with or without notice and hearing. With this as a base, petitioner contends that due process of law and fundamental fairness requires that notice and hearing be afforded prior to a continuation of probation.

Therefore the question to be decided is whether section 549.101, RSMo 1969, which permits a judge to continue or extend the period of probation without a hearing is unconstitutional as violative of a probationer’s right to the procedural due process required by Amendment Fourteen of the U.S. Constitution and Art. I, sec. 10, Mo. Const.

There are no United States Supreme Court cases nor cases of this court directly in point.

The briefs of the parties and our research reveal only a few cases in which the question of whether there must be notice and hearing prior to continuation of probation was at issue.

In United States v. Freeman, 160 F.Supp. 532 (D.D.C.1957), the petitioner sought an order from the U.S. district court judge vacating a probation revocation. After having pleaded guilty to an offense in U.S. district court, Freeman received a suspended sentence and was placed on probation for three years. Just prior to the expiration of the three-year period, the probation officer reported the impending expiration to the court with a statement of conduct of the probationer as required by statute. The court considered the report and entered an ex parte order extending the probation for an additional two years expiring February 27, 1957. On February 4, 1957, the probation officer reported to the court that Freeman had violated the terms of probation. The court issued a bench warrant for Freeman and extended probation for one more year solely for the purpose of enabling the court to revoke the probation during the probationary period. On March 1, 1957, Freeman appeared before the court and for good cause shown his probation was revoked.

The legal issue in Freeman was whether the court may extend a period of probation ex parte. The court noted that the District of Columbia’s statute did not specifically require a hearing either at the time of extension or of revocation and that under Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), probationers have no constitutional right to a hearing even at the time of revocation. The court held that the right to hearing on revocation or extension stems from the probation statute, not the constitution. The U.S. district court judge in Freeman denied the motion to vacate the probation revocation order but announced that he considered ex parte extensions generally to be an unwise practice and, therefore, in the future he would require the appearance of probationer with counsel before extending such periods, with certain exceptions. Freeman was affirmed on other grounds, Freeman v. United States, 103 U.S.App.D.C. 15, 254 F.2d 352 (1958).

The Missouri statute, section 549.101(1), provides that Missouri judges may continue probation with or without a hearing so they are free to do as the U.S. district court judge in Freeman declared would be his practice in the future.

In Cook v. Commonwealth, 211 Va. 290, 176 S.E.2d 815 (1970), the trial judge sentenced Cook to three years in the penitentiary, suspended two years of that sentence, and directed that he serve twelve months at a correctional farm in lieu of one year in the penitentiary, and ordered that upon his release from the correctional farm Cook would be on probation for three years from July 27, 1965. On July 26, 1968, the trial court was advised by a probation officer that Cook was in jail in another county charged with forgery. The court entered an ex parte order extending the probation period for one year or until July 27, 1969. Cook received no notice of the proposed action and was not present when the order was entered. Subsequently, on September 6, 1968, the court held a revocation hearing with Cook present and represented by counsel. It was established that Cook had pleaded guilty to two felonies of check forgery. The court then revoked probation and ordered the remainder of the original three-year sentence (two years) be executed.

Cook contended the ex parte extension of probation was invalid because he had no notice or hearing. The Virginia Supreme Court noted that the Virginia statutes merely provided that, “The court may subsequently increase or decrease the probation period and may revoke or modify any condition of probation”, (Va.Code sec. 53-273), and that no procedure to be followed was set forth in the statute. The court looked to other provisions of the Virginia probation laws and noted that while the revocation provisions did not require a hearing upon the revocation of a suspended sentence, the Virginia Supreme Court had previously held in Slayton v. Commonwealth, 185 Va. 357, 38 S.E.2d 479 (1946), that fundamental fairness required a judicial hearing 0f a summary nature before the court couid revoke a suspended sentence and thereby deprive the probationer of his liberty. The court said it had held, in effect, that the requirement of such a hearing was implicit in the statute.

Using the same rationale (that a hearing is implicit in the statute), the court held that a judicial hearing of a summary nature was required because increasing the period of probation has the effect of extending the restraints on the probationer’s liberty and extends the time period during which revocation may occur. The court held the ex parte order continuing Cook on probation to be invalid; that the original probationary period expired July 27, 1968, and therefore the court was without power to revoke probation after the original probation expired.

The Virginia court did not hold that constitutional due process required a hearing on extension of probation. It did hold that it was implicit in the Virginia statutes that such a hearing was required.

Morrissey v. Brewer, supra, and Gagnon v. Scarpelli, supra, held respectively that a hearing was required on revocation of parole and revocation of probation as part of procedural due process under the Fourteenth Amendment to the United States Constitution. In Gagnon, 411 U.S. at 782, footnote 4, 93 S.Ct. at 1760, the court said that after Morrissey v. Brewer, a probationer can no longer be denied due process “in reliance on the dictum in Escoe v. Zerbst, 295 U.S. 490, 492, 55 S.Ct. 818, 819, 79 L.Ed. 1566 (1935), that probation is an ‘act of grace’.” Although Escoe v. Zerbst, supra, was not specifically overruled in Morrissey or Gagnon, it is obvious that Escoe cannot be followed when revocation is involved.

In Morrissey the court said, 408 U.S. at 481, 92 S.Ct. at 2600: “Whether any procedural protections are due depends on the extent to which an individual will be ‘condemned to suffer grievous loss.’ ” In analyzing the relative situations of persons completely free, free on parole, and those in confinement, the court said, 408 U.S. at 481-482, 92 S.Ct. at 2600:

“We turn to an examination of the nature of the interest of the parolee in his continued liberty. The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases, the parolee faces lengthy incarceration if his parole is revoked.

“We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee’s liberty is a ‘right’ or a ‘privilege.’ By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.”

The “grievous loss” found by the United States Supreme Court to be sustained by revocation is, of course, the total loss of liberty occasioned by imprisonment. The court acknowledged that conditions of parole restrict the activities of parolees substantially beyond restrictions imposed by law on an individual citizen. And it is obvious that conditions of probation or parole that limit a parolee’s right to travel where he pleases, prohibit the use of liquor, or require him to receive permission from his probation officer before engaging in specified activities which others may legally engage in, do place restrictions on the liberty of a parolee that are substantial.

The issue here, however, is not whether conditions of probation substantially restrict the full exercise of rights of free men but whether the continuation or extension of probation constitutes such a grievous loss so as to constitutionally require prior notice and hearing. That issue was decided in Skipworth v. United States, 508 F.2d 598 (3d Cir. 1975), subsequent to Morrissey and Gagnon. In Skipworth the prisoner appealed from denial of his pro se application to vacate two five-year sentences which were imposed after revocation of probation. On April 1, 1969, the U.S. district court judge suspended imposition of sentence and placed Skipworth on probation for two years. On March 25, 1971, five days prior to the expiration of the two-year period, the judge, ex parte, ordered an extension of one year on the recommendation of the probation officer. The basis for the recommendation was that Skipworth had been arrested on seven occasions by the Philadelphia police on narcotics violations. As of the time the recommendation was made, Skip-worth had been adjudged not guilty or the charges had been dismissed as to four of the seven arrests. The other three charges were pending but were not scheduled for further court action until April 19, 1971, which was after the original probationary period would have expired. Thereafter, in December 1971, he was arrested for violation of probationary terms and following a hearing on January 7, 1972, probation was revoked and Skipworth was sentenced to two consecutive five-year terms. Skip-worth contended the one-year ex parte extension was invalid and therefore the subsequent revocation and sentencing were likewise invalid. The court of appeals stated the issue was whether the due process clause requires that a probationer be given notice and a right to a hearing before any order granting an extension of probation is entered. That, of course, is the issue in the instant case.

In Skipworth the court noted that the law had changed considerably since the district court’s decision in Freeman, supra, and that Escoe v. Zerbst, supra, which the Freeman court relied on, had since been repudiated in Gagnon, and that the test enunciated in Morrissey and followed in Gagnon was “ ‘[w]hether any procedural protections are due depends on the extent to which an individual will be “condemned to suffer grievous loss”.’ Morrissey, supra, 408 U.S. at 481, 92 S.Ct. [2593] at 2600.” Skipworth, 508 F.2d at 601. Applying the foregoing test to the ex parte extension of probation, the court in Skipworth went on to say, 508 F.2d at 601-602:

“After careful consideration of the principles set forth in Morrissey and Gagnon and their applicability to this case, we do not believe that due process required notice and a hearing prior to the extension of the petitioner’s probation. While we acknowledge that probation entails significant restrictions on an individual, an extension of probation is clearly not as ‘grievous’ a ‘loss’ as revocation, and here it entailed no greater restrictions than those which existed previously. In fact, the primary ‘loss’ suffered by an individual whose probation has been extended lies not in the continuing restrictions themselves, but in the possibility of future revocation. While such a loss is indeed serious, it is merely potential at the time of extension, and the due process clause clearly provides the protection of a hearing in the event that revocation proceedings should subsequently occur. We add that the petitioner in fact received a revocation hearing at which he was represented by counsel.

“We also note that the kind of factual inquiry in an extension proceeding is quite different from that in a revocation proceeding. In revocation proceedings, the trial judge must reasonable satisfy himself that the probationer has broken some law while on probation or has otherwise violated a condition of his probation. While the judge has considerable discretion as to whether to order revocation, he must at a minimum make an initial factual finding of a probation violation. A revocation hearing, therefore, provides the probationer with the crucial opportunity to contest an allegation of violation.

“In granting an extension, however, the trial judge is given greater latitude, and he need not find that any probation violation has occurred. For example, in United States v. Squillante, 144 F.Supp. 494, 497 (S.D.N.Y.1956), the court refused to terminate the probation which it had previously extended, despite finding that the probationer had complied with the express condition of his probation, because it believed that ‘the best interest of society warrants the continuation of supervision over the probationer.’ See also United States, v. Rosner, 161 F.Supp. 234 (S.D.N.Y.1958); United States v. Squillante, 137 F.Supp. 553 (S.D.N.Y.), aff’d, 235 F.2d 46 (2d Cir. 1956); United States v. Edminston, 69 F.Supp. 382, 384 (W.D.La.1947).”

The court concluded in Skipworth that an ex parte extension of probation was not so prejudicial as to constitute a violation of due process and affirmed the district court even though the opinion stated that because of the potential for prejudice the district courts in the third circuit would thereafter be required to give notice to the probationer of the proposed extension and afford him a hearing should he so desire.

One other ease has been brought to our attention involving the issue of a hearing prior to extension of probation which is Warden Nevada State Prison v. Gaines, 522 P.2d 1009 (Nev.1974). There, probation had been granted on condition Gaines make restitution of money he embezzled. Two weeks before his probation was to expire, the trial court, pursuant to a request of the probation department, extended the probationary period to the full five-year statutory limit or until restitution was made. The basis for the probation officer’s recommendation was that Gaines had failed to make restitution. This order was entered wholly ex parte. After another year went by, Gaines’ probation was revoked for leaving Nevada without permission and he was incarcerated in prison. Gaines then filed a petition for writ of habeas corpus contending that the order extending probation was invalid.

Certain Nevada statutes provide that a probationer who has failed to make restitution as ordered without a showing of economic hardship shall be given a general discharge (from probation) except that a civil liability remains for any unpaid restitution. The statute applies to probationers whose terms have expired, but the Nevada court held it applicable to Gaines because his probation period had only two weeks remaining when it was extended. The court held that Gaines was entitled to a hearing with reference to whether economic hardship was the reason for not making restitution and said that the facts suggested that he came within that part of the statute reducing the restitution to a civil liability. The court held the extension invalid and affirmed the lower court’s order releasing the prisoner.

Although the Nevada court cited Gagnon and Morrissey in support of its decision, it appears that the hearing that the court held Gaines to be entitled to was a hearing required under the statute which specifically dealt with restitution and was not on the basis that constitutional due process mandated a hearing prior to the extension order.

We have considered all of the decisions touching upon the point in issue here that have been located. No prior decision has held that due process of law under a state constitution or under the Fourteenth Amendment of the United States Constitution requires notice and hearing prior to an order extending the period of probation. The discretion vested in a judge with reference to granting probation and extending the term within statutory limits is exceedingly broad and is not subject to review by any appellate court. The reasoning found in the Skipworth decision supporting the holding that extension of probation does not constitute such a grievous loss so as to constitutionally require prior notice and hearing is sound.

The court holds that the due process clause of the Fourteenth Amendment of the United States Constitution, and of Art. I, sec. 10, Mo.Const., does not require notice and hearing prior to an order extending the term of probation and that section 549.101, RSMo 1969, is not unconstitutional in allowing probation to be extended without a prior hearing.

The court declines to exercise its general superintending control authority under Art. V, sec. 4, Mo.Const., as amended, so as to require prior notice and hearing with reference to extending terms of probation at this time under the concept of “fundamental fairness”. This because the facts of this case and those of Gremminger v. Billings, 540 S.W.2d 38 (Mo. banc 1976), as well as the facts of the other cases cited in this opinion do not demonstrate that there has been any fundamental unfairness or prejudice in not requiring notice and hearing prior to an order of extension. What is demonstrated by the facts of all of these cases is that, as a practical matter, the judge does not or may not receive the information as to the probationer’s conduct until shortly before the initial term of probation expires. The judge is then faced with the alternative of allowing the probation period to expire with consequential discharge of the probationer, or giving a quick notice and holding a quick hearing on revocation and consequent imprisonment, or extending the term of probation. The judge’s obligation is to act responsibly in the matter and to do so requires time and thought. Extending the term does not drastically change the status of the probationer but does provide the necessary time to give the matter due consideration. The judge can discharge the probationer at any time during the extended period. And this court is of the opinion that a judge who has extended a probationer’s term without notice and hearing would thereafter afford the probationer a hearing on the matter should it be requested. While we have no empirical data on the matter, we do not accept as a fact that judges in Missouri routinely extend terms of probation without prior advice being given to the probationer directly by the judge or through the probation officer, or that judges routinely refuse to afford the probationer the opportunity to tell his side of the story and secure a discharge if the judge believes him and is otherwise satisfied that discharge is merited.

In the instant case, the order extending the probation term was entered and the probationer was advised of it prior to the expiration of the original term. Petitioner sought no hearing nor any information from the judge as to the reasons for the order. Petitioner accepted the continued probation until it appeared that revocation was imminent which occurred when he was arrested on a probation violation warrant on September 23, 1975.

It is of more than passing significance that Freeman, Cook, Skipworth, and Gaines, the probationers in the cases cited supra, did not consider the extension of probation, when it was ordered, to be prejudicial. At least none of them took any action at that time but only after the extended probation was revoked and they were imprisoned. In the instant case, Ockel and, in the companion case noted supra, Gremminger did not consider the extension orders prejudicial to them when they were entered as neither of them took any action until taken into custody for alleged probation violations.

While there is a potential for prejudice in every system devised by mankind, there has been no showing in the instant case, nor in the cited eases, in this court’s opinion, that prejudice is either a real probability or an actuality which results from the continuation of probation without prior notice and hearing sufficient to justify a mandate that such a notice and hearing be afforded in every case.

The court certainly recognizes that probation stands a better chance of success when the probationer is advised of the reasons why the court proposes to extend his term and gives the probationer as opportunity.to state his case and encourages such a practice.

What is stated supra following the court’s holding that due process does not require prior notice and hearing for an extension of the probationary term is perhaps dicta. Nevertheless, the court considers it important to state what it believes to be the practical realities of this phase of the overall judicial procedure in criminal causes and deems it advisable to let those views be known in the context of this case.

The writ of habeas corpus previously issued is quashed.

All of the Judges concur.