author: ALDEN A. STOCKARD, Special Judge.

text:
    Raymond T. BRUEGGEMANN, Appellant, v. PERMANEER DOOR CORPORATION, and Bituminous Casualty Corporation, Respondents.
    No. 36035.
    Missouri Court of Appeals, Fourth District.
    Sept. 9, 1975.
    Morris B. Kessler, St. Louis, for appellant.
    Frank J. Lahey, Jr., Albert I. Graff, St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

On June 10, 1969, Raymond T. Brueg-gemann sustained an injury in the course of and arising out of his employment with Permaneer Door Corporation when he received an electrical shock and burns. On August 20, 1970, appellant filed a claim for compensation with the Division of Workmen’s Compensation. Permaneer Door Corporation admitted the occurrence of the accident and its liability under the Workmen’s Compensation Act, but denied the injuries and disabilities claimed by appellant.

At the beginning of the hearing on June 12, 1972, after setting forth some of the admitted facts, the Referee stated: “The only dispute and the evidence confined to that issue, as I understand it, is the nature and extent of permanent partial disability. So, we’ll confine the evidence to that issue alone.” No objection was made by either party.

At the hearing testimony was received from appellant, his wife, and Dr. David E. Lemmel, a licensed chiropractor. Appellant also introduced several exhibits, none of which are material to the issues presented on this appeal, and a deposition from Dr. William H. Grundman, an examining doctor. Respondents also introduced in evidence the depositions of three examining doctors.

The Referee issued his “Award on Hearing” on June 26, 1972. He made an award for temporary total disability, an award for permanent partial disability, and a small award for disfigurement. He further stated that probable future temporary total disability was “none,” and that probable future temporary partial disability was “none.” There was no finding pertaining to the need for any future treatment or medical expense.

In his Report the Referee stated: “In reaching the above conclusion[s] I have rejected and not considered the testimony of D. E. Lemmel, D. C., which I find to be incompetent and inadmissible.” The basis for that ruling was that the Referee concluded that under the applicable statutes the practice of chiropractic is not the practice of medicine or osteopathy and therefore the testimony of a chiropractor as to medical matters is not admissible as that of an expert witness in a workmen’s compensation case.

Both parties petitioned for a review by the Industrial Commission. On April 23, 1973, the Commission entered an order remanding the case to the Division of Workmen’s Compensation for the reason that it found “as a matter of law that the referee’s action when he rejected and refused to consider the testimony of D. E. Lemmel, D. C. was in error.” It concluded, however, that it had no discretion to consider evidence “absent from the record presented for review even though improperly excluded,” so it ordered that “the instant claim together with the record and file heretofore compiled in the matter be remanded to the referee in order that he may take for and on behalf of the Commission, the full testimony of Dr. D. E. Lemmel related to his examination and evaluation of the employee as the applicable law * * * requires so that the Commission may consider said testimony and assign it such weight as it intrinsically commands in arriving at a final award.” The Referee was directed to write an amended award, “giving said testimony all due and proper consideration as to its weight as evidence, as shall not be inconsistent with this order.”

Thereafter, respondents filed with the Industrial Commission a motion for clarification of its order, and it was therein stated that appellant’s attorney had furnished respondents a medical report made by Dr. Lemmel, dated May 14, 1973, and pertaining to a physical examination of appellant conducted on May 5, 1973. That report is not in the record before us, and we do not know its contents. Respondents requested that the Commission clarify whether the testimony of Dr. Lemmel to be taken was to be limited to his report of examination dated January 5,1972, as testified to by him at the hearing begun on June 12, 1972, or whether Dr. Lemmel was to be permitted to testify as to his findings based on the physical examination made on May 5, 1973. Respondents further requested that if the doctor was to be permitted to testify concerning the examination made subsequent to the previous hearing, that the supplemental hearing be continued “until such time as arrangements can be made for re-examination of [appellant] by doctors of the selection of [respondents], and the presentation of said testimony * * There is nothing in the record to indicate that appellant agreed to the requested continuance, and he makes no contention on this appeal that he did so.

On June 22,1973, the Industrial Commission entered its order that “the testimony of Dr. D. C. Lemmel, D. C., which was the subject of the Commission’s prior order of the 23d day of April, 1973, shall be limited in the hearing therein ordered to his findings made and conclusions reached as a result of medical examinations made prior to the original hearing date of the 12th of June, 1973 [It was agreed by the parties that this date should have been 1972], and the witness shall not be permitted to testify as to any matters in any way related to any examinations made subsequent to the date last above mentioned.”

We find no objection by appellant to the Industrial Commission concerning this order, and he did not file any application pursuant to § 287.470, RSMo 1969, based on a “change of condition.”

The supplemental hearing was held as scheduled, and the Referee filed his Amended Award, the result of which was the same as his previous Award. This was reviewed by the Industrial Commission and it made its final Award dated September 11, 1973, which affirmed the Award of the Referee. Appellant then appealed to the Circuit Court of Franklin County which, after oral arguments, affirmed the Award of the Industrial Commission, and this appeal then followed. We cannot determine from the record whether appellant advanced to the trial court the contentions presented on this appeal.

Appellant first contends that “The Commission erred in excluding competent material evidence,” because it “(A) may not reject competent material evidence offered by either party,” and “(B) By improperly excluding competent and material evidence the Industrial Commission left [appellant] without a remedy for the additional disability known to have been incurred prior to the last hearing and award dates.”

This point is inadequate to present any issue for appellate review. The evidence claimed to be competent and material is not therein identified. Also part (B) is indefinite and somewhat confusing. We, nor for that matter the respondents, are advised as to what is intended by the reference to “additional disability,” and it cannot be determined whether by the phrase “prior to the last hearing and award dates” appellant intends to refer to an alleged disability incurred at any time prior to the hearing begun on June 12, 1972, or only to an alleged disability incurred after June 12, 1972, and prior to July 31, 1973. However, by turning to respondents’ statement of facts and to the argument portion of appellant’s brief which we are not required to do but which we have done in a most liberal exercise of our discretion, we find that appellant claims that “there was evidence [not identified] showing that the condition suffered by [him] was progressive,” and it was error to “exclude testimony [at the hearing held July 31,1972] which would have shown [his] present condition.” There also is a contention in the second point relied on, which necessarily relates to the contention of the first point, that appellant was entitled to future treatment and medication, presumably by reason of the claimed “additional disability.”

We first note that by reason of the stipulation, agreed to by appellant, the hearing on his claim was limited to the issue of “the nature and extent of permanent partial disability,” and during the hearing appellant made no claim for future treatment or future medical expenses. Next, if there was evidence that appellant’s condition was “progressive,” as he now asserts in argument, that presented a fact issue which (a) was resolved contrary to appellant’s claim, or (b) was taken into consideration by the Commission in making its award for permanent partial disability. Appellant does not challenge amount of the award for partial permanent disability.

The order of the Commission remanding the case to the Referee was not for the purpose of reopening the entire case, but was for the limited purpose of receiving and considering evidence that had been offered at the hearing on July 12, and July 20, 1972. If appellant was of the opinion that a change of condition had occurred after July 20, 1972, he was not foreclosed from making an application pursuant to § 287.470 RSMo 1969, for a rehearing, and we find nothing in the record before us that appellant in any way advised the Commission that he considered that a change in his condition had occurred. We also note that respondents did not take the position that in no event should appellant be prohibited from showing his “present condition.” Their proposal was that if appellant was to be permitted to do so, they too should have the time and opportunity to present their evidence on that issue. But, appellant elected to pursue a course of action whereby he apparently wanted respondents to be limited to the scope of the stipulation, but he was to be free to present medical evidence that his condition had changed without according to respondents the opportunity of presenting evidence, if any, to the contrary.

The presentation of the facts in this case demonstrates the need for procedural rules and the necessity of litigants and the courts adhering thereto. Appellant was not foreclosed from presenting evidence of an “additional disability,” as he contends, and he cannot now complain that he was not permitted to ignore the procedure established by § 287.470 and follow a procedure which would have resulted in his adversaries being foreclosed from meeting his claim.

Appellant’s second point is “(A) The Commission erred in not making provision for the medical expenses already incurred by the appellant and in failing to make provision for future treatment and medication,” and “(B) Voluntary rendition of medical treatment by the employer after one hundred eighty (180) days following the injury waives the necessity for special order by the Commission directing that additional medical treatments beyond the one hundred eighty (180) days be furnished. The only evidence in the case indicated that [appellant] was in need of continued attention and medication by reason of his injuries.”

We first note that part (B) is nothing more than an abstract statement of law, and presents nothing for appellate review. We also note that appellant does not set forth the “only evidence” or make any reference to where such evidence may be found. In his statement of facts he recites, “There was evidence that appellant still needed treatment for his injuries,” and reference is made to four pages in the transcript. Assuming the issue was within the scope of the stipulation, it presented a fact issue which was determined adversely to appellant’s contention, and there is ample evidence to support that conclusion by the Commission. However, we have read the four pages referred to, and contrary to appellant’s assertion, there is no medical testimony that he needed future medical treatment for the injuries which gave rise to his claim for Workmen’s Compensation. Appellant’s testimony from Dr. Lemmel was that he “couldn’t say at this time” that appellant would benefit from any future treatment by him.

Appellant admits in his brief that “for some eleven (11) months the Insurer voluntarily furnished and paid for medical treatment” to him, but he adds that it “arbitrarily terminated its sponsorship of that treat-meiit although [he] continued on and bore the expense of the additional treatment.”

The Insurer did provide the medical treatment referred to, and after it advised the doctor that it would no longer be responsible for his medical bills, appellant continued to see him. However, there is nothing in the record to the effect that the subsequent treatment was in any way related to the injuries sustained by appellant, and there is substantial evidence that the subsequent treatment was unrelated to appellant’s injuries sustained in the course of his employment.

We find no merit to appellant’s contentions, and the judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


source: Caselaw Access Project

author: McMILLIAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ricardo GRAHAM, Defendant-Appellant.
    No. 36325.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 9, 1975.
    James C. Jones, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Scott A. Raisher, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

This is an appeal by defendant Ricardo Graham from a conviction of murder second degree. We affirm.

At about 10:00 P.M., on the night of September 12,1973, Thomas Lee Henderson (the deceased), Reginald Henderson, Marquita Jones and Vernesta Wilson were walking together on DeGiverville Avenue, near the corner of DeGiverville and Hamilton Avenues. Terrence Thomas was approaching them on foot on the other side of the street. A blue 1962 or 1963 Nova ear with a large number 292 on the doors pulled up beside them. There were five (5) men in the car: the defendant, Michael Hudson, Gregory Hudson, Charles Steven Cooper (the driver), and David Martin. The defendant, Michael Hudson, and Gregory Hudson got out of the car. The defendant and Gregory Hudson had shotguns; Michael Hudson had a pistol. Gregory said something like, “ ‘Which one of you all is messing with my rap (friend)?’ ” Reginald Henderson answered first and denied knowing his friend. Gregory said that he did and hit him on the head with the shotgun, knocking him to the ground. Gregory then told Tommy Henderson to start running, which he did. As Tommy was running away from them Gregory ordered defendant to shoot him. Defendant did so, and the three men got in the car and drove off. Tommy Henderson died at the hospital at 11:15 P.M.

“‘RICARDO GRAHAM and GREGORY HUDSON, ACTING WITH OTHERS,”’ were charged with murder in the second degree. By photo, at lineup, and at trial, Reginald Henderson, Marquita Jones, Vernesta Wilson and Terrence Thomas all positively identified defendant as the man who had shot Tommy Henderson. Defendant and Charles Steven Cooper testified that defendant was in the back seat of the ear and that Michael Hudson did the shooting. David Martin and Michael Hudson invoked the Fifth Amendment privilege against self-incrimination on the record and before the jury. The case was submitted to the jury on an instruction authorizing a conviction of murder in the second degree. The jury returned a verdict of guilty. The trial court assessed punishment at thirty-five (35) years imprisonment.

Defendant makes two contentions on appeal. First, he argues that the trial court erred in permitting David Martin and Michael Hudson to invoke the Fifth Amendment privilege against self-incrimination because there was no adequate basis for excluding their testimony and the effect was to deprive the defendant of his Sixth Amendment right to call witnesses on his behalf. Second, he argues that it was error for the court to give Instruction No. 4 (MAI-CR 6.01) because it did not require the jury to find that the alleged killing was with premeditation and malice aforethought. These contentions are without merit.

The Fifth Amendment privilege has its basis in the fear of self-incrimination. It is true that, in claiming the privilege, both David Martin; age 15, and Michael Hudson, age 16, denied any fear of self-incrimination. However, the privilege has been liberally construed. Only when the court can say as a matter of law that it is impossible that the witness would incriminate himself by answering a question, can the court require an answer. Ex parte Gauss, 223 Mo. 277, 122 S.W. 741, 742 (Mo.1909) and State ex reí. Howard v. Allison, 431 S.W.2d 233, 236-37 (Mo.App.1968). Any testimony by Martin and Hudson, even admitting their presence at the scene of the crime, could have constituted a link in a chain of evidence that might lead to a subsequent conviction. Also, the trial judge, in appraising the claim, . . must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. . . .” Ex parte Irvine, 74 F. 954, 960 (C.C.S.D. Ohio 1896). Here, the circumstances indicated that Martin and Hudson should be permitted to invoke the Fifth Amendment. The Judge had been advised by their attorney that there was sufficient basis for their invoking the privilege. Their denials of fear of self-incrimination were very likely due to their youth and their lack of understanding of the privilege. Therefore, since both witnesses positively indicated their desire to invoke the Fifth Amendment privilege; since the trial court had a rational basis for permitting them to invoke the privilege; and since the trial court could not say as a matter of law that their testimony would not have incriminated them, the trial court did not err in permitting David Martin and Michael Hudson to refuse to testify in defendant’s behalf. Finally, we note that because a timely objection was not made at trial, this issue was not properly preserved for appellate review and need not have been considered by this court. State v. Stock, 463 S.W.2d 889 (Mo.1971) and State v. Tyler, 454 S.W.2d 564 (Mo.1970).

In complaining about Instruction No. 4, defendant is asking us to ignore State v. Jackson, 496 S.W.2d 1, 2 (Mo.Banc 1973), in which the Supreme Court specifically approved the form of MAI-CR 6.06. See also State v. Booker, 503 S.W.2d 76, 79 (Mo.App.1973). This we are unwilling and unable to do. The trial court did not err in submitting to the jury Instruction No. 4, the verdict-directing instruction on second degree murder, which followed the form authorized in MAI-CR 6.06.

The rulings of the trial court were correct and the judgment is accordingly affirmed.

SIMEONE, P. J., and GUNN, J., concur.

      . McCormick, Evidence § 121 (2d Ed.1972).


text:
    STATE of Missouri, Respondent, v. Dexter DAVIS, Appellant.
    No. 36588.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 16, 1975.

      James C. Jones, Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Dexter Davis, charged by Information pursuant to the Second Offender Act, § 556.280 RSMo 1969, with carrying a concealed weapon in violation of § 564.610 RSMo 1969, was found guilty by a jury, and was sentenced by the court to the custody of the Department of Corrections for a period of five years. This is a companion case to State v. Jones, 523 S.W.2d 152 (Mo.App.1975).

Appellant first contends that the trial court erred in overruling his motion for a judgment of acquittal because “there was no evidence to support a finding that [he] intentionally carried a concealed weapon on his person” within the meaning of § 564.610 RSMo 1969. This necessitates a detailed statement of the evidence offered by the State; the appellant having offered no evidence.

Police Officers Robert Letter man and Joseph Mokwa were in an unmarked automobile while maintaining a surveillance of a house in the 1400 block of East Prairie Street. The reason for the surveillance is not disclosed. About noon the officers observed appellant and three other persons walking toward a Pontiac automobile parked in front of the house, and they drove their automobile behind the Pontiac and stopped about twenty feet from it. Neither officer saw a bulge in appellant’s clothing as he approached and prepared to enter the Pontiac, but after his companions entered the automobile and appellant was preparing to enter, the officers each saw appellant hand a pistol to one of the occupants. Officer Letterman testified that “when we were approximately twenty to twenty-five feet from them, [appellant] pulled what appeared to be a pistol from his right trouser pocket” and handed it to one of the occupants of the automobile. Officer Mokwa testified that appellant “glanced toward the police vehicle” and then “hurriedly reached inside his pocket and pointed the gun into the car handing it in to the occupant of the automobile.” Appellant then entered the Pontiac and it sped away with the police officers in pursuit. During the pursuit appellant threw a paper bag from the automobile, which when retrieved by the police was found to contain a pistol.

Appellant admits, as stated in State v. Hall, 508 S.W.2d 200, 206 (Mo.App.1974), that the elements necessary to establish a violation of § 564.610 are: “1. Intention to carry a weapon concealed; 2. Concealment on the person or in such close proximity to the accused so as to be under his easy and convenient control.” See also, State v. Tate, 416 S.W.2d 103 (Mo.1967). He argues, however, that as to proof of intent, the State rests its case wholly upon circumstantial evidence, and, citing State v. Casey, 247 S.W. 114 (Mo.1922), he argues that the circumstances proved must be consistent with each other, consistent with the hypothesis of guilt, and inconsistent with the hypothesis of innocence. Appellant places considerable emphasis on the fact that neither officer saw a bulge in his clothing as he approached and stood outside the Pontiac. We consider this argument to be totally without merit.

The offense here charged may, as any other charge, be proved in part by circumstantial evidence, and this is particularly true of the element of intent which is seldom subject to proof by direct evidence. State v. Chevlin, 284 S.W.2d 563 (Mo.1955), In State v. Carter, 259 Mo. 349, 168 S.W. 679 (1914), it was stated that “Where the state’s evidence shows that the weapon is concealed, it would, no doubt, be a sufficient prima facie showing that he intended to conceal the same because from such proof it might well be inferred or presumed that the person intended to do that which, in fact, he did do, * * See also State v. Rice, 490 S.W.2d 27 (Mo.1973); State v. Holbert, 416 S.W.2d 129 (Mo.1967); State v. Crone, 399 S.W.2d 19 (Mo.1966).

As far back as 1889 in considering a factual situation remarkably similar to that in this case, State v. Livesay, 30 Mo.App. 633, 636, this court said: “Evidence that the witness did not see the pistol before he saw it in the defendant’s hand, and that he saw the defendant reaching in the direction of his hip pocket before he saw the pistol in his hand, was evidence from which the jury might infer that the defendant carried the pistol concealed in his pocket. A bystander would not see a pistol if it were concealed in the pocket of another; and if that other were to draw the pistol, no better evidence could be produced that he carried it concealed, unless a witness had seen him in the very act of drawing it.” In this case both officers testified that they each saw appellant reach toward his pocket and produce the pistol, and that prior thereto they were not able to discern any evidence of the weapon. See State v. Bordeaux, 337 S.W.2d 47 (Mo.1960).

Appellant argues that subsequent testimony of each officer on cross-examination was to the effect that they did not see appellant “reach into his pocket and remove a gun.” We do not agree with this contention. Officer Letterman testified on cross-examination that “there was a movement from his side into the inside of the car,” and that was when he saw the pistol, and that he did not observe a pistol when appellant was walking to the automobile. Officer Mokwa testified that he saw appellant take the gun “from the area of his pocket,” and that although he did not see “it come right out of his pocket,” he saw him “go into the area of his pocket,” and he had not “seen anything previously.” In addition, this officer was asked this question on cross-examination: “You are saying you actually saw him produce the gun?” and the answer was, “Yes, sir.”

This testimony clearly made the issue of whether the pistol was concealed a fact issue for the jury, and the jury resolved it contrary to appellant’s contention. There is no merit to appellant’s first point.

Appellant’s second and remaining point is that the trial court erred in denying appellant’s motion for a mistrial “when the prosecutor placed the weapon into his pocket to prove that it was coneealable.” Appellant argues that there was no evidence that the prosecutor was wearing the same type of clothing with the same type pocket as worn by appellant.

Appellant’s counsel made the following argument to the jury:

Now, if you look at this weapon, this is not a small weapon. The officers, to believe them you must believe that this weapon was carried in a trouser pocket. This weapon is at least six, seven inches long, with a large butt stock. Now, if the officers are to be believed, you must believe that this gun is going in a pocket of an individual who is of slight build and tall; that he walked with this group in broad daylight — twelve o’clock at noon, and that the police officer never noticed a bulge or anything in his pocket until the time he got up to the car and then he saw that this weapon was being transferred. He was able to see this much of the weapon [indicating], but with this thing sticking in a trouser pocket, he was unable to see that. Therefore, what are you being asked? You are being asked to infer * * ⅜ that this gun was in his pocket, but where do you have any direct evidence that it was?

In rebuttal, the assistant circuit attorney stated: “There is some question whether or not it [the pistol] will fit inside the pocket and be concealable. Of course it can. He makes the question about whether or not the gun — With this statement counsel placed the pistol in his trousers pocket. Appellant’s objection to the demonstration was sustained, but the trial court refused to grant his request for a mistrial.

The jury could see the size of the pistol, but there was no evidence that the size of the pocket in counsel’s trousers was comparable to the pocket in the trousers of appellant at the time of the charged offense. This demonstration was in effect a form of argument, and as a general rule counsel is not to argue matters not in evidence. State v. Cuckovich, 485 S.W.2d 16 (Mo.1972).

The State argues on this appeal that the demonstration was retaliatory in nature to argument by defense counsel, and citing State v. Granberry, 484 S.W.2d 295 (Mo. banc 1972), asserts that therefore appellant is in no position to complain. This contention is not entirely without merit under the circumstances, but we shall not base our ruling on a resolution of this close question. Instead, we shall assume that the demonstration was not completely justified by appellant’s prior argument.

The trial court sustained appellant’s objection, but refused to take the drastic remedy of declaring a mistrial. “Every error which might occur in the trial of a case does not necessarily require the granting of a mistrial, State v. Camper, 391 S.W.2d 926 [Mo.1965], and ‘The granting or refusal of a mistrial for improper argument lies largely within the discretion of the trial court.’ ⅞ ⅜ ⅜ 1¾6 authority of a court to grant a mistrial ‘should be exercised only in extraordinary circumstances,’ State v. James, 347 S.W.2d 211 [Mo.1961], which is another way of saying that ‘a mistrial should be granted only when the incident is so grievous that the prejudicial effect can be removed no other way,’ ” State v. Phelps, 478 S.W.2d 304 (Mo.1972). The proper function of an appellate court in the situation we have, or which we have assumed, is to determine whether as a matter of law the trial court abused its discretion in refusing to declare a mistrial. In view of the action taken, and the trial court’s ability and opportunity to view the incident in context, we find no abuse of discretion.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Alonzo WEBB, Defendant-Appellant.
    No. 35961.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 9, 1975.

      Ray B. Marglous, Marglous & Marglous, Clayton, Morton L. Schwartz, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Scott A. Raisher, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Thomas C. Muldoon, St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Defendant appeals from a conviction by a jury of stealing property of the value of at least $50.00, a felony punishable by imprisonment in the penitentiary under § 560.156 and § 560.161. Under the provisions of the Habitual Criminal Act, § 556.-280, the trial court assessed punishment at eight years imprisonment. We affirm.

Defendant’s first contention is that the evidence was insufficient to support the felony conviction because “there was great doubt as to the value” of the stolen property. We shall view the evidence in the light most favorable to the jury’s verdict and accept as true all evidence, whether circumstantial or direct in nature, which tends to support the jury’s determination. State v. Morris, 518 S.W.2d 79 (Mo.App.1974).

On February 28, 1973, Earl Dworak, a supervisor for Zinsco Electrical Products, Incorporated, 3650 Windsor Place, St. Louis, Missouri, and James Smith, a welder were working the night shift. As they sat down for their lunch break shortly after 9:00 p. m. they heard a loud crash which sounded like copper bars hitting the pavement. They went outside on the Bell Avenue side of the factory building. Bell Avenue runs east and west along the south side of the building. They came out a door toward the west end of the building. About 75 to 100 feet to the east they saw copper bars scattered about near a 6 wheel hand truck or dolly. The copper bars were about 32½" long, varied in width from 4 to 6" and were ⅝" thick. The bars weighed 8.4 to 15.6 pounds each. The dolly was on the sidewalk near the rear of a car that was facing west. The car was parked at the curb approximately five to six feet from a side door to the plant. They saw a woman handing copper bars to a man who was loading the copper into the trunk of the car. As they approached the car they recognized the man as defendant, a fellow employee from the day shift. Dworak saw the woman hand Webb copper bars on two separate occasions. He could not say how many bars were passed on the first occasion. On the second occasion he saw four copper bars passed to Webb who placed them in the trunk of the car. When they came closer to the auto, the woman stopped passing the copper bars and got into the car. Webb threw one more bar into the trunk, shut it and got into the car and drove away. Neither witness was in a position to see what was inside the trunk before it was closed. Defendant had some difficulty starting the car and the witnesses were able to get the license number. The automobile was registered in the name of defendant’s wife.

The dolly that was on the sidewalk near the side door had been seen by Mr. Dworak earlier that evening on the inside of the building near that door. Mr. Dworak had supervised the cutting of the copper that was on the dolly just two days before. The stock ticket he used was still on it. He found that stock ticket among the copper bars that were strewn about the sidewalk after defendant left the scene. The stock ticket stays with the job as it goes through the plant and identifies the material and the number of pieces cut. The night of the larceny Dworak saw this stock ticket on top of the copper bars loaded on the dolly. That same night the security supervisor of the plant saw this same stock ticket on the fully loaded dolly a short time prior to 9:00 p. m.

Mr. Dworak weighed the bars that remained after the theft and roughly estimated that 1,243 pounds were missing.

Mr. Marcus Brooks, the superintendent of fabrication at Zinsco, testified that, relying upon the stock ticket, he determined the precise number of bars missing and their weight. He had checked the bars found on the dolly and those strewn on the ground after the larceny against the invoice for the material and determined that there were 86 pieces missing, having a total value of $845.00.

During the course of the trial defendant, on cross-examination of one of the state’s witnesses, elicited the information that four of the copper bars would have a value of $42.64. Defendant’s points lack the specificity required by our rule but it seems that from this evidence defendant contends that the value of the stolen property was not “at least $50.00” and therefore there was no proof of the felony charged.

The defendant’s assumption that the evidence would support only a finding that there was a theft of four bars of copper is erroneous. Based on the testimony of eyewitnesses the jury was warranted in finding the defendant placed copper bars into the trunk of the car on at least three occasions and that there were four bars placed in the trunk on at least one occasion. Of necessity there were at least six bars of copper placed in the car. This with the evidence from Mr. Dworak and Mr. Brooks with respect to the total quantity of copper missing having a value of $845.00 as set out above constitutes sufficient substantial evidence to warrant the submission of the felony. The question of the value of the stolen property was properly a question for jury consideration. State v. Matzker, 500 S.W.2d 54 (Mo.App.1973).

Defendant contends that “The court erred in failing to give a range of punishment as to the misdemeanor instruction as distinguished from the felony instruction”. Contrary to Rule 84.04(e) the instruction complained of is not “set forth in full in the argument portion of the brief”. Nor is it set forth in any part of the brief. This point is not before us for review. State v. Larkins, 518 S.W.2d 131 (Mo.App.1974).

Appellant also contends that the court erred in not giving an alibi instruction. We shall not detail the evidentiary basis for this claim. Appellant’s attorney did not prepare or present written instructions with a request that such an instruction be given. The trial court was under no duty to give such an instruction. State v. Paige, 446 S.W.2d 798 (Mo.1969). Nor was this claim of error preserved for our consideration in the defendant’s motion for new trial. State v. Stucker, 518 S.W.2d 219 (Mo.App.1974).

Appellant’s final point is that the sentence was excessive. He argues that (a) there should have been a presentence investigation and (b) that the sentence was the result of the trial court’s prejudice. In this case no presentence report was requested by the defendant. The presentence investigation is discretionary, Rule 27.07(b), Hamilton v. State, 490 S.W.2d 363 (Mo.App.1973). Even a denial of such a request is not an abuse of discretion, State v. Tettamble, 517 S.W.2d 732 (Mo.App.1974). We find no merit in appellant’s argument that the lack of a presentence report lead to an excessive punishment. The court has reviewed the record and there is no evidence that the trial court acted in a prejudicial manner or that the sentence given Alonzo Webb was the result of prejudice.

The sentence imposed was within the statutory limits. As a matter of law, it is not excessive. State v. Kennedy, 513 S.W.2d 697 (Mo.App.1974).

The judgment is affirmed.

CLEMENS, P. J., and KELLY, J., concur.

      . All references are to R.S.Mo.1969 unless otherwise indicated.

      . 84.04(d).

      . While not mandatory use of the provisions of Rule 27.07(b) is strongly urged.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Samuel Joseph SMITH, Defendant-Appellant.
    No. 36551.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 9, 1975.

      Kent Fanning, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Timothy Verhagen, Asst. Atty. Gen., Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant, Samuel Joseph Smith, was convicted of stealing from a dwelling house. §§ 560.156, 560.161, RSMo 1969. Subsequent to the guilty verdict returned by the jury, and upon determining the defendant had a prior conviction, the trial judge sentenced the defendant to six years imprisonment.

On May 6,1974 Mrs. Gertrude Jones, who resided in a duplex at 1906 North Euclid, St. Louis, Missouri, returned home from work to find the lock on her kitchen-basement door severed and her television set and portable radio missing.

Mr. William Robinson, Jr., who lived next to Mrs. Jones in the duplex, had arrived home at 3:00 p. m. on that day, shortly before Mrs. Jones, and had encountered the defendant who was leaving by way of Mr. Robinson’s gate. Defendant was carrying a television set in a shopping bag, and said to Mr. Robinson, “ ‘Nothing happened to you, dad; nothing happened to you.’ ” After first checking on his family and his own side of the duplex, Mr. Robinson discovered Mrs. Jones’ back door was open. Mr. Robinson instructed his children to call the police while he attempted to follow the defendant in his car. Mr. Robinson found the defendant had not walked very far and pulled his car alongside of him, inquiring about where the defendant got the television. Defendant answered that someone had given it to him, but when Mr. Robinson repeated his question, the defendant threw the television into Mr. Robinson’s car through an open window. Mr. Robinson returned home with the television. He found Mrs. Jones had arrived home, whereupon she identified the set as belonging to her. Mr. Robinson then accompanied a police officer in a search for the defendant. Three blocks away the defendant was found and arrested.

On appeal, the defendant contends two reversible errors were committed by the trial court. First, defendant asserts the court below erred in denying defendant’s motion for judgment of acquittal at the close of the evidence due to the insufficiency of the evidence. Defendant claims the state did not prove beyond a reasonable doubt that the defendant entered the premises of Mrs. Jones and removed her television set.

Initially we note that upon a motion for judgment of acquittal the facts in evidence and all favorable inferences reasonably drawn therefrom must be con-sidefed in the light most favorable to the state, and all contrary evidence and inferences should be disregarded. State v. Jordan., 495 S.W.2d 717, 719[1] (Mo.App.1973). Moreover, direct evidence is not necessary; circumstantial evidence is sufficient to sustain a conviction if the circumstantial evidence is consistent with a hypothesis of defendant’s guilt and inconsistent with a hypothesis of his innocence. State v. Cox, 508 S.W.2d 716, 721[1] (Mo.App.1974).

The defendant was seen leaving the yard adjoining Mrs. Jones’ home, carrying a television which Mrs. Jones positively identified as belonging to her. Defendant uttered an incriminating statement to Mr. Robinson and when confronted by Mr. Robinson’s inquiry about where the defendant had gotten the television, defendant threw the set into Mr. Robinson’s car. The evidence in this case, therefore, unlike the cases cited by defendant for support [State v. Favell, 411 S.W.2d 245 (Mo.App.1967); State v. Walker, 365 S.W.2d 597 (Mo.1963)], shows more than a mere presence of the defendant at the scene of the crime and an opportunity to have committed the offense. An inference of guilt is clearly permissible from possession of property recently stolen. State v. Holmes, 434 S.W.2d 555, 558[4] (Mo.1968).

Additionally, it is well established that a reviewing court should not determine whether the charge has been proven beyond a reasonable doubt since that is an issue for the jury. State v. Smith, 377 S.W.2d 241, 244[2] (Mo.1964). Thus the evidence relating to finding Mrs. Jones’ television set in defendant’s possession, defendant’s suspicious statement and actions, and Mrs. Jones’ positive identification of the set warranted the jury’s guilty verdict. State v. Woolsey, 328 S.W.2d 24, 25[2] (Mo.1959).

Defendant’s second point on appeal is that the trial court erred in overruling defendant’s objection to an allegedly improper statement by the prosecutor in his closing argument. The language objected to was:

“He [defendant] argues because he did not have a radio and did not have some tools there, this is the reason he is innocent. I submit to you that this man here, Smith, is a stupid thief, but he is not that stupid. He is not going to keep his wire cutters and the radio with him. He is not going to keep them on his person when he knows a neighbor has traveled three city blocks to get the television back. He is not going to be down at the corner listening to the radio. He is not that stupid. He is stupid enough to break into the house because he knows the lady is at work in the middle of the afternoon.
MR. FANNING: Objection; there is no evidence of that.
THE COURT: Overruled.
MR. PEACH (continuing): He is not stupid enough to break into the house with three or four people cooking lunch; he breaks into the same building, but he breaks in next door where he knows the woman is going to be at work.”

The defendant argues that the prosecutor was injecting his own testimony into the record in violation of defendant’s right to confrontation and cross-examination since he was referring to evidence not in the record. No evidence was introduced at trial showing that the defendant knew Mrs. Jones would be at work and her house left empty.

At the outset we recognize that a prosecutor has the right to draw any inference from the evidence which he in good faith believes to be justified. State v. Feger, 340 S.W.2d 716, 728[24] (Mo.1960). Moreover, the trial court has wide discretion in determining latitude in permitting argument of counsel, and we will not reverse unless this discretion has been abused resulting in prejudice to the defendant. State v. Kimmins, 514 S.W.2d 381, 382[1] (Mo.App.1974). The defendant was found in the vicinity of the victim’s unoccupied residence with the victim’s television set; thus the inference by the assistant circuit attorney that defendant knew the owner was not home was not an unreasonable inference. In addition, unlike the authorities defendant relies on for support, we see no prejudice to the defendant arising from the assistant circuit attorney’s remarks since the defendant’s strategy regarding a convenient time was immaterial to the proof of any elements of the offense charged.

Finding defendant’s contentions to be without merit, the trial court’s judgment is affirmed.

DOWD and RENDLEN, JJ., concur.


author: HOGAN, Judge.

text:
    HERMEL, INC., Plaintiff-Respondent, v. The WIG CHALET BOUTIQUE, INC., Defendant-Appellant.
    No. 9542.
    Missouri Court of Appeals, Springfield District.
    Sept. 10, 1975.
    George J. Donegan, John D. Eakes, Horace S. Haseltine, Springfield, for defendant-appellant.
    Turner White, White, Dickey & Allem-ann, Springfield, for plaintiff-respondent.
   HOGAN, Judge.

Plaintiff Hermel, Inc., owns and operates the Battlefield Mall in the city of Springfield, Missouri. The Battlefield Mall is described as a “fairly typical small regional shopping center enclosed.” Defendant Wig Chalet Boutique, Inc., is one of plaintiff’s tenants. Defendant sells wigs, falls, wiglets and hairpieces. Deeming its “exclusive” (the restrictive covenant in its lease) infringed, deféndant has withheld its rent since November 1, 1971. Plaintiff brought this action to recover rent and other charges allegedly due. Upon trial without a jury in the Circuit Court of Greene County plaintiff had judgment and defendant has appealed.

The restrictive covenant in defendant’s lease provides that plaintiff will not, during the term of defendant’s lease, lease any unit of space to any other tenant “whose exclusive purpose would be” the sale of “wigs, falls; wiglets and hairpieces.” The covenant is made “subject to the right heretofore granted” to specifically designated tenants, including “McCrory’s who may have the right to carry such items as an incidental part of their business.” Plaintiff further agrees, “as to all other Leases made”, that the tenants shall not make the sale of wigs, etc., a “substantial” part of their business. “Substantial” sales of defendant’s type of merchandise means gross sales in excess of one-third of any tenant’s total gross sales, and plaintiff covenants, as to all “future Tenants” to limit “substantial” sales by any competing tenant upon notice, and agrees that during the time any competing tenant’s sale of wigs, etc., shall be “substantial”, defendant’s rent shall abate.

This controversy arose when defendant became aware that McCrory-McLellan-Green Stores, operators of “McCrory’s” had executed a “concession” agreement granting a firm known as Wig World of Missouri, Inc., a “non-exclusive license” to operate a complete wig department in McCrory-McLellan-Green Stores “per individual store orders” on a month-to-month basis. McCro-ry’s basic lease gives it the right to operate a variety and/or junior department store in separate departments or concessions. Defendant’s position, very broadly stated, is that the concession agreement is a “sublease” to a future tenant, that the sale of wigs and wig accessories was not “incidental” to McCrory’s operation, and that because defendant’s duty to pay rent was dependent upon plaintiff’s protection of defendant’s “exclusive”, defendant was entitled to abate the rent.

A good deal of evidence was heard and a number of documents were introduced, but the decisive issues developed on trial were 1) whether or not the sale of wigs and wig accessories was “incidental” to McCrory’s operation; and 2) whether or not McCrory’s “concession” agreement with Wig World was a “sublease”. In a concise memorandum the trial court found both issues against the defendant. We have reached the same conclusions by much the same route.

In this court the defendant has reminded us of our duty to review the case de novo under Rule 73.01, para. 3(a), V.A.M.R., and has sought a sweeping review of every facet of the controversy. A meticulously developed brief has been filed, and the cause has been argued. We have reviewed the record, examined the documents introduced and read the briefs, but we decline to restate the facts at length and consider the defendant’s points in detail. The congestion of appellate dockets is disturbing and has given rise to many far-reaching proposals designed to expedite the consideration and disposition of appeals on their merits. We undertake no general comment, but we do believe that ordinarily, prompt review and adjudication of the parties’ rights are far more important than any detailed, carefully articulated statement of the court’s reasons for its decision. There are also other factors to be considered. As our preceptors remind us:

“The [appellate] court is neither a law school nor a debating society, and the opinion is no place for a legal monograph or the airing of personal views on general matters. . . . The burden of keeping abreast of the reported cases . is becoming very great; appellate courts should not needlessly add to the burden by publishing lengthy opinions with relation to matters that are well settled and concerning which no lawyer of any ability entertains serious doubt.”

Upon its merits, this case involves neither a novel legal proposition nor any question of continuing legal interest. Conceding that the developers and occupants of shopping centers are confronted with many legal problems of topical interest, including the construction and operation of restrictive covenants, it is not necessary in this case to construe the defendant’s “exclusive” or to consider it at length for any purpose. Here, defendant had the burden to show that the sale of wigs and wig accessories was not “incidental” to McCrory’s operation because it pleaded that matter in avoidance of its covenant to pay rent. Whether “incidental” is taken to mean a minor concomitant to McCrory’s general operation or sales activity amounting to less than one-third of McCrory’s gross sales is of no consequence, because defendant proved neither alternative. As for defendant’s contention that McCrory’s “concession agreement” is in reality a sublease, it is not “news”, so to speak, that the construction of “leases” in department stores involves nice questions of doctrinal nomenclature, but in this instance it is not necessary to characterize the agreement precisely; whether it constitutes an agreement for a species of joint venture, or creates a kind of license, or as Professor Powell insists, creates an easement, 3 R. Powell, Real Property § 430 (Rev. ed. 1974), the “concession” agreement is by no means a sublease.

Upon careful examination of the record and the briefs, we conclude that the judgment of the trial court is based on findings of fact which are not clearly erroneous, that no error of law appears, and that a fully articulated opinion would have no preceden-tial value as far as the issues tendered are concerned. The judgment is therefore affirmed in all respects pursuant to Rule 84.-16, para, (b), V.A.M.R.

All concur except FLANIGAN, J., not participating because not a member of the court when the cause was submitted.

      . See, e. g., Whittaker, Differentiated Case Management in Appellate Courts, 56 Judicature 324 (1973); O’Connell, Streamlining Appellate Procedures, Id., 234.

      . J. Parker, Improving Appellate Procedure, 25 N.Y.U.L.Rev. 1, 12-13 (1950), in R. Lef-lar, Appellate Judicial Opinions 202 (1974).

      .See Eagle, Shopping Center Control: The Developer Beseiged [sic], 51 J.Urban L. 585, 592-599 (1974); Drafting Shopping Center Leases, 2 Real Prop., Prob. & Trust J. 222, 232-236 (1967), in Real Estate in Midcentu-ry 318, 328-332 (1974).

      . See 1 American Law of Property § 3.5 (A. J. Casner ed. 1952).


author: FONES, Chief Justice. FONES, Chief Justice.

text:
    Ronald Russell SMITH and William Raymond Beard, Jr., Petitioners, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Sept. 2, 1975.
    George M. Derryberry, L. Hale Hamilton, William C. Carriger, Chattanooga, for petitioners.
    R. A. Ashley, Jr., Atty. Gen., Bart Durham, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

FONES, Chief Justice.

Ronald Russell Smith and William Raymond Beard, Jr., were' convicted upon a joint trial for armed robbery. Both men received sentences of twenty-five (25) years in the state penitentiary which were upheld by the Court of Criminal Appeals. Judge W. Wayne Oliver dissented from that court’s denial of the defendants’ petitions to rehear. We granted certiorari and have heard oral argument limited to the issues of whether the closing argument of the assistant district attorney general was improper, and if so, was it prejudicial.

Defendants’ petitions to rehear filed in the Court of Criminal Appeals were grounded upon the unreported decision of another panel of that court captioned Alex Biles, Jr. v. State of Tennessee, No. 358 (opinion filed November 6,1973). The same prosecutor and trial judge that were involved in the Biles case took part in the instant case. In Biles, Presiding Judge Mark A. Walker found the prosecutor’s closing argument to be patently improper. We cannot help but note the striking similarity between the argument condemned in Biles and that which is now before us.

In both cases the prosecutor addressed some jurors by name and asked if they were afraid to go out to dinner with their wives, or answer their doorbell, or stop at a street light for fear of the criminal element. See, Scarborough v. City of Lewisburg, 504 S.W.2d 377 (Tenn.App.1973), a civil case that discourages “use of a given, or first name, which is widely recognized as a symbol of familiarity, uncharacteristic of the detached positions of counsel and juror.” Id. at 384.

Predictions were made as to the consequences that a light sentence would have on lawlessness in the community. Bowling v. State, 3 Tenn.Cr.App. 176, 458 S.W.2d 639 (1970) warns that such statements should be avoided. The prosecutor’s argument in both cases portrayed the defendants as representatives of the one percent of Hamilton County that comprised the criminal element. They were pictured as trying to bully the jury, who represented the other ninety-nine percent of the people. Such a characterization was not warranted by the evidence, nor did the manner in which the defendants or their counsel conducted themselves during the trial give cause for such remarks.

The assistant district attorney general in both cases recommended to the jury a sentence of five hundred (500) years. In the present instance, he maintained that there were reasons for his recommendation that he could not reveal. He suggested that the defendants would not want such matters explained to the jury. These statements could have been taken by the jury to mean that they should set the punishment at a high number of years, rather than at a life sentence, in order to extend the time before the defendants could become eligible for parole. Any reference to parole possibilities during argument would have been improper. See, Graham v. State, 202 Tenn. 423, 304 S.W.2d 622 (1957). We cannot condone any method, albeit an indirect one, that seeks to achieve that prohibited goal. Such statements are not made any less objectionable by the fact that the jury did not actually follow the prosecutor’s recommendation of five hundred (500) years.

Throughout the argument there were numerous remarks that the defendants wanted sentences of fifteen (15), twenty (20), or twenty-five (25) years; in other instances, that they were hoping for a life sentence. These statements were not warranted by anything that appears in the record. They suggest that plea negotiations had been engaged in and failed, because of undue obsti-nance on the part of the defendants.

At the conclusion of the assistant district attorney general’s remarks, counsel for both defendants immediately objected to the argument as improper. They also moved for a mistrial and cited some of the grounds mentioned above. The trial judge overruled the objections and motions for mistrial. He did not issue any instructions to the jury to cure the effects of these remarks. Counsel for the defendants repeated and expanded their objections to these remarks in their motions for new trial, which were also denied.

We recognize that argument of counsel is a valuable privilege that should not be unduly restricted. Our courts seek to give great latitude to counsel in expressing their views of the case to the jury. In support of this policy trial judges have wide discretion in controlling the argument of counsel, and their action will not be reviewed absent abuse of that discretion. White v. State, 210 Tenn. 78, 356 S.W.2d 411 (1962).

While keeping this policy in mind, we nevertheless hold that the remarks under scrutiny in this case go beyond the limits of legitimate argument. The cumulative impact of the various statements referred to above undoubtedly had a prejudicial effect on the jury. Due to the nature of the remarks, however, we think that the harmful effects were in the area of sentencing rather than that of determining guilt or innocence. The evidence of guilt is overwhelming. Therefore, the judgment of guilty is affirmed. In accordance with Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900 (1944), we vacate the punishment set in each case and fix the term of imprisonment for each defendant at the minimum sentence for armed robbery, ten (10) years in the penitentiary, subject to the consent of the State. Should the State not accept the reduction in sentence, the case will be remanded for a new trial solely on the issue of punishment, in accordance with the guidelines provided by Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738 at 743 (1956).

COOPER, HENRY, BROCK and HARBI-SON, JJ., concur.

OPINION ON PETITION TO REHEAR

FONES, Chief Justice.

The State argues in its petition to rehear that it is permissible, in view of the last paragraph of T.C.A. § 40-2707, for prosecuting attorneys to argue to the jury the various parole possibilities available to defendants after they have been sentenced and incarcerated.

The last paragraph of T.C.A. § 40-2707, which requires the trial judge to charge the jury with provisions of the Code dealing with parole and honor time, did not become effective until May 4, 1973. Act 1973, ch. 163, § 2. This was after the trial in this case, which was held on March 23, 1973.

The reference, by implication, to parole possibilities was no more than a cap on the iceberg of improprieties committed during the argument of this case.

The petition to rehear is denied.

COOPER, HENRY, BROCK and HARBI-SON, JJ., concur.


author: HARBISON, Justice.

text:
    John G. LAYHEW, Appellant, v. James R. DIXON, Appellee.
    Supreme Court of Tennessee.
    Sept. 22, 1975.

      H. T. Finley, Parker, Nichol & Finley, Nashville, for appellant.
    William W. Burton, Murfreesboro, for ap-pellee.
   OPINION

HARBISON, Justice.

The appellee, James R. Dixon, instituted this action for damages in the Circuit Court of Rutherford County, Tennessee, seeking recovery for the wrongful death of his wife and personal injuries sustained by him, in an automobile accident resulting from a collision between the automobiles of the parties.

An answer was filed on behalf of the appellant, denying liability, and there was also filed a document designated as a “special plea” in which it was alleged that the appellee had executed a release of Jackson Brothers Chevrolet, Inc. for all of the claims presently being asserted. It is alleged in this special plea that the appellant was an employee of the released party, and that the release therefore had the effect of discharging appellant.

Under Rule 7 of the Tennessee Rules of Civil Procedure, the only pleadings presently authorized are a complaint and an answer, unless there be counterclaims or third-party claims. The “special plea” is therefore not currently a permissible pleading. It may, however, be treated as a part of the answer filed on behalf of the appellant, raising the issue of the effect of the release.

Based upon the foregoing pleadings, appellant filed a motion for summary judgment. In this motion appellant made reference to previous proceedings which had been filed in the U. S. District Court for the Middle District of Tennessee. This involved a suit by third parties, who are not involved in the present litigation, against Jackson Brothers Chevrolet, Inc., appellant and ap-pellee. The motion for summary judgment alleges that in said previous action it was averred that appellant was an employee of Jackson Brothers Chevrolet, Inc., engaged in the scope and course of his master’s business.

Attached to the motion for summary judgment was the general release in question.

Appellee filed a purported answer to the special plea, in which he pointed out that in the federal proceedings, appellant had denied that he was on the business of his employer at the time of the accident. Ap-pellee then filed a reply to the motion for summary judgment, challenging the merits thereof.

There is filed in the record a certified copy of an application for a dealer’s certificate, apparently for the purpose of showing ownership of the vehicle in question in the party released in the federal case. Also, pursuant to order of the circuit judge, certified copies of the pleadings in the previous federal case were filed, in which the plaintiffs there did allege a master-servant relationship between appellant and Jackson Brothers Chevrolet, Inc. In the answer filed to that complaint appellant denied that at the time of the accident he was engaged in the scope and course of his employment.

None of the federal pleadings were sworn to, and they represent no more than the statements of position of the parties to that action. While it is true that parties may not change positions which they have asserted in litigation, judicial estoppels are not favored and ordinarily do not arise out of mere unsworn pleadings. See Sturkie v. Bottoms, 203 Tenn. 237, 310 S.W.2d 451 (1958).

The trial judge overruled the motion for summary judgment filed on behalf of appellant, but did grant a discretionary appeal to this Court pursuant to T.C.A. § 27-305.

A serious question exists as to whether this appeal should properly have been taken to the Supreme Court or to the Court of Appeals under T.C.A. § 16-408. Ordinarily, where affidavits or other materials outside the pleadings are considered by the trial court, and where there is no formal written stipulation of facts, appellate review of summary judgment proceedings is properly in the Court of Appeals, rather than the Supreme Court. Allstate Insurance Company v. Hartford Accident & Indemnity Company, 483 S.W.2d 719 (Tenn.1972).

Both the Court of Appeals and the Supreme Court, however, have discretion under T.C.A. § 27-305 in accepting for review questions certified for interlocutory appeal. Also, under T.C.A. § 27-329 either court may remand a case to the trial court for further evidence, where it appears to the court from an examination of the record that more satisfactory or complete evidence is available for the development of the issues.

In the present case the master-servant relationship between appellant and the party released does not satisfactorily appear. Appellant relies solely upon the statutory presumption arising out of proof of ownership and registration. T.C.A. §§ 59-1037, 1038. There is no affidavit from appellant or from the released party, Jackson Brothers Chevrolet, Inc., or from anyone else, establishing the facts surrounding the relationship between appellant and the released party. The appellant himself in the federal case is shown to have made a formal denial that he was on his employer’s business at the time of the accident. This denial is unexplained in the record.

Proceedings for summary judgment are not in any sense to be used as a substitute for the trial of disputed factual issues. In order for appellant to have any basis for claiming the benefit of the release exhibited in this record, the master-servant relationship between him and the released party must be established. We do not pass upon and do not reach the question of whether or not the release of an employer has the effect of releasing the employee, because we are of the opinion that the master-servant relationship claimed has not been sufficiently shown. Of course if this relationship did not in fact exist at the time of the accident, under present Tennessee statutes the release of one alleged tort-feasor does not release another. T.C.A. § 23-3105.

We are of the opinion that the trial court properly overruled the motion for summary judgment on the state of the record before him, and, in the exercise of our supervisory jurisdiction, rather than transferring this case to the Court of Appeals, we are of the opinion that it should be remanded to the trial court for further proceedings, without prejudice to the rights of either party as to any of the issues attempted to be raised on this interlocutory appeal. As stated, we expressly do not reach the question of what the legal effect of the release would be, assuming that a master-servant relationship is established. Unless and until that relationship is proved by satisfactory evidence, the issues presented on this appeal do not arise for determination.

The judgment of the Circuit Court is affirmed and the cause is remanded for further proceedings. Costs of the appeal will be taxed to appellant.

FONES, C. J., and COOPER, BROCK and HENRY, JJ., concur.


author: COOPER, Justice.

text:
    Geraldine BRYANT, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Sept. 29, 1975.

      Norman D. Lane, Lester, Hildebrand, Nolan, Lane, Underhill, Mondelli, Flynn & Porter, Nashville, for petitioner.
    R. A. Ashley,' Jr., Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, for respondent.
   OPINION

COOPER, Justice.

The issues in this case turn on the interpretation of T.C.A. 27-111, which empowers appellate courts to order the late filing of bills of exceptions in criminal cases.

Petitioner, Geraldine Bryant, was convicted on January 30, 1973, of second degree murder in the death of her husband, and was sentenced to ten years imprisonment. The order overruling petitioner’s motion for new trial was entered on May 23,1973, with the trial judge allowing petitioner ninety days in which to file the bill of exceptions. On the day before the expiration of the ninety day period, the trial judge entered an order giving the official court reporter an additional ninety days to prepare the transcript “due to illness and to an overload of transcript of cases being appealed, and also, due to her presence being required in Circuit Court.” The bill of exceptions was authenticated by the trial judge and filed on November 13,1973. The court reporter’s certificate included in the bill of exceptions states:

“I further certify that because of illness (pinched nerve in back and unable to work for almost two months) and because of a death in my family, I have had to ask for an extension of time for transcribing this record and because of a heavy load of transcripts and being in Court taking cases.”

The state made no objection to the late filing of the bill of exceptions and the case was argued on its merits, with both parties relying on testimony set out in the bill of exceptions.

The Court of Criminal Appeals, with one judge dissenting, sua sponte refused to consider the evidence in the bill of exceptions due to the late filing and affirmed the conviction on the technical record alone. The majority of the court also concluded they had no jurisdiction to sua sponte order a late filing of the bill of exceptions and that, in any event, the petitioner did not come within the purview of T.C.A. 27-111 as she was not indigent.

Mrs. Bryant filed a petition to rehear and also moved for permission to file a late bill of exceptions. The Court of Criminal Appeals summarily denied the petition to rehear. No order was entered on the motion, the Court of Criminal Appeals evidently concluding that action on the motion was not necessary in that, like the petition to rehear, it was directed to the late filing of the bill of exceptions. This court granted certiorari to decide:

(1) whether an appellate court sua sponte can order the filing of a late bill of exceptions; and

(2) if so, does T.C.A. 27-111, which provides for the late filing of a bill of exceptions in a criminal case, apply equally to appellants represented by retained counsel and to indigent defendants represented by appointed counsel.

T.C.A. 27-111 requires that a bill of exceptions be filed within thirty (30) days from the entry of the order or action of the court which occasioned the filing of the bill of exceptions, unless within the statutory thirty (30) day period, the trial judge extends the time for filing the bill of exceptions for a period of time not exceeding an additional sixty (60) days. The maximum time allowable then by statute and by order of a trial court for the filing of a bill of exceptions is ninety (90) days. In 1970 the legislature amended T.C.A. 27-111 to provide for the late filing of a bill of exceptions in a criminal case. The relevant part of the amended statute reads as follows:

“Notwithstanding the foregoing time limitations, in criminal cases the Court of Criminal Appeals or the Supreme Court, upon application of the defendant or the state and for good cause shown, shall be empowered at any time to order the filing of the bill of exceptions or any portion thereof in the appropriate appellate court, so as to give the appellate court jurisdiction to consider the same. Upon the receipt of such an order from the appellate court, the trial judge shall see to it that the bill of exceptions or the relevant portion thereof is signed, filed in the trial court and promptly forwarded to the appropriate appellate court for filing therein.”

The leading case interpreting the relevant part of T.C.A. Section 27-111 is Dailey v. State, 225 Tenn. 472, 470 S.W.2d 608 (1971). In that case the trial court found the petitioner indigent, appointed counsel to represent him, and directed the bill of exceptions be prepared at state expense only one week before the ninety day limit was to expire. The bill of exceptions was filed one day late. The Court of Criminal Appeals refused to consider the bill of exceptions because of the late filing. In reversing the Court of Criminal Appeals and ordering the bill of exceptions be filed, this court described the 1970 amendment as “remedial,” stating that it was designed to remove an impediment to the right of full appellate review.

“The United States Supreme Court, in opinions released prior to this 1970 amendment to T.C.A. § 27-111, held that any time a defendant was denied full appellate review due to ‘state action’ such was error requiring a new trial. The failure to timely file bills of exceptions in cases involving indigent defendants, denying such defendants a full appellate review, was deemed to be the result of ‘state action.’ This generally resulted in the indigent defendant so denied his full appellate review filing a post-conviction proceeding to have the judgment against him declared void and being successful the State was required to again put him to trial. This resulted in three separate proceedings when, in most cases, one should have been sufficient, which not only put the State to extra expense, but further clogged the already clogged appellate and trial court dockets. These were substantially the facts when the Legislature enacted this 1970 amendment, and it is obvious such was intended to remedy this situation.
“A remedial statute should be liberally construed in furtherance of its purpose. [Citing cases.]”

It was also pointed out in the Dailey opinion that:

“The statute [T.C.A. Section 27-111] empowers the appellate courts, exercising their discretion, to order the filing of a late bill of exceptions for good cause shown on motion of the defendant or the State, and in the interest of justice by the court on its own motion.” [Emphasis supplied.] Id. at 610.

To the same effect see: Mitchell v. State, 512 S.W.2d 661 (Tenn.Cr.App.1974); Mosley v. State, 477 S.W.2d 246 . (Tenn.Cr.App. 1971).

In the instant case, the majority of the Court of Criminal Appeals interpreted the Dailey case as restricting the remedial effect of T.C.A. Section 27-111 to indigent defendants — this despite the fact there is no direct holding to that effect in the Dai-ley case, nor is there an express requirement of indigency set forth in T.C.A. Section 27-111, as amended. Further, the interpretation placed on the Dailey case is contra to the action of the Court of Criminal Appeals in Mosely v. State, supra, and which was approved by this court by denial of certiorari. In Mosely the court reporter failed to prepare the bill of exceptions within the ninety day limit through no fault of the defendant, and it was authenticated by the trial judge and filed three days late. The non-indigency of the defendant did not prevent the Court of Criminal Appeals from ordering a late filing of the bill of exceptions under T.C.A. 27-111, nor from considering evidence set forth in the bill of exceptions.

As we view the Dailey case and T.C.A. 27-111, the key to the filing of a late bill of exceptions is not the financial worth of the appealing party, but rather is the showing of “good cause” by the party seeking to file the bill of exceptions. “Good cause” essentially requires that the delay in filing the bill of exceptions be due to a cause beyond the control of the appealing party, which is the situation in this case. The record shows that the petitioner ordered the bill of exceptions from the reporter assigned to the Circuit Court of Williamson County almost immediately on entry of the order overruling petitioner’s motion for new trial. The delay in preparation of the bill of exceptions was due in a large part to illness of the court reporter and to a lesser degree to demands made upon the court reporter’s time by the trial judge, both causes being beyond petitioner’s power to prevent. In light of these circumstances, we think the Court of Criminal Appeals sua sponte should have ordered the late filing of the bill of exceptions, and certainly should have granted it when petitioner filed a motion asking the court to do so.

Accordingly, we order the bill of exceptions filed to give the appellate court jurisdiction. The case is remanded to the Court of Criminal Appeals for consideration of the several assignments of error predicated on evidence and events set forth in the bill of exceptions.

FONES, C. J., and HENRY, BROCK, and HARBISON, JJ., concur.


author: WALKER, Presiding Judge.

text:
    Herman HARRISON, Jr., Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 23, 1975.
    Certiorari Denied by Supreme Court Sept. 2, 1975.

      Allen J. Strawbridge, Jr., Martin, William R. Neese, Paris, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., William J. Haynes, Jr., Asst. Atty. Gen., Nashville, Fleming Hodges, Dist. Atty. Gen., Dyers-burg, Othal Smith, Jr., Asst. Dist. Atty. Gen., Union City, for defendant in error.
   OPINION

WALKER, Presiding Judge.

In five cases tried together, the defendant below, Herman Harrison, Jr., was found guilty of (1) first degree murder of Doris Ann Harrison and sentenced to 50 years in the penitentiary; (2) assault with intent to commit first degree murder on Mrs. Finis Dorster and sentenced to six to 15 years; (3) assault with intent to commit second degree murder on Finis Dorster and sentenced to not less nor more than two years; (4) assault with intent to commit second degree murder on Kenneth Seranee and sentenced to not less nor more than two years; and (5) assault with intent to commit second degree murder on Jerry Riggs and sentenced to not less nor more than two years. The trial judge ordered the sentences served consecutively. The defendant appeals in error.

The deceased was the defendant’s former wife and lived in a trailer home at the residence of her parents, Mr. and Mrs. Finis Dorster, near Dresden. Between 10:00 and 10:30 p. m., July 14, 1973, the defendant, armed with a club and a .22 caliber pistol, came to her trailer home where she had a visitor, Robert Burnett. She sent one of their three children to the house to get help from her father.

The deceased locked the trailer door, but the defendant broke the glass, opened the door, entered and knocked the deceased down. When Burnett rose from a couch, the defendant ordered him to sit down, took a poeketknife from him and, holding the pistol on Burnett, told him, “You are lucky that you are not getting it.”

Mrs. Dorster started from the house to the trailer and the defendant shot her in the stomach when she was about 10 to 15 feet from the trailer. Mr. Dorster then got his shotgun and the defendant shot him in the leg and again shot Mrs. Dorster. He told the deceased, “There lays your damned old mother out there; ” and “I’m going to shoot you, too.” He then fatally shot her between the eyes.

Mr. Dorster went in the house because of his bleeding leg and gave his gun to Scronce, telling Scronce not to let the defendant into the house. Another daughter called the sheriff, Jerry Riggs.

When the sheriff arrived and tried to get the defendant to come out of the trailer, the defendant told him, “I’m a mean son-of-a-bitch and I’m walking tall tonight. You come get me; ” and “I’ve done killed son-of-a-bitches and I’m going to kill two more before I leave.” The sheriff radioed for help and continued to try to get the defendant to leave the trailer. The defendant told Scronce, “You sorry son-of-a-bitch, you lay that gun down or I’ll kill you, too.” When Scronce did not throw his gun down, the defendant shot at him. The defendant also fired at the sheriff. By this time the defendant had left the trailer and Scronce returned his fire, the first shot knocking the defendant to the ground. The defendant, only superficially wounded, got up, ran toward the house and Scronce shot again. The defendant threw his pistol away when it snapped several times, but he threatened to kill the sheriff with his club. The sheriff finally subdued him. In the meantime, other officers arrived. The defendant told one that he was going to kill the sheriff and Scronce, that he had been planning this for three months and had been target practicing and wanted to shoot all of them there between the eyes.

The following morning when the sheriff told the defendant that his former wife had died, he replied, “Well, I’m glad that the bitch did. Did the other one die?” When told that the mother had not died, he answered, “Well, I’m sorry about the trouble I had with you and Mr. Dorster. He’s a pretty good fellow, but I hope the other two son-of-a-bitches die.” He also told a jail inmate that he had been doing something he wanted to do for some time, that he had been “walking tall” and was going to kill the sheriff if he got half a chance.

Testifying in his own defense, the defendant admitted shooting his ex-wife and the Dorsters but denied shooting at the sheriff or Scronce. He said he had been drinking all day and was drunk by 11:00 a. m.; that he drank about a case of beer; that his purpose in going to the trailer was to see his children although he knew there would be trouble if he went there. He denied breaking the glass to gain entry and said he did this later. He said he had a club but did not draw his pistol at that time; that he slapped his ex-wife but she did not fall; that before he slapped her she had admitted burning a house and said he was going to go to the penitentiary if it was the last thing he did; that she was trying to get him back in the penitentiary.

The defendant said that Mrs. Dorster had a .32 automatic in her hand when she came toward the trailer. He said he threw his pistol at the sheriff and Scronce, and that he surrendered when he came to his senses. He testified he did not recall statements to the officers afterwards or those at the jail. He claimed he was drunk and that he did not plan these events.

Don Jenkins testified the deceased called him and asked his aid in putting the defendant in jail for stealing hogs; that she offered her favors for his assistance; that he told this to the defendant about 11:00 or 11:30 a. m. that day but the defendant did not react violently.

The defendant also offered evidence by the Chancery Court Clerk to show the date of the divorce and the date the petition alleged the separation took place.

In rebuttal the state presented evidence to show that Mrs. Dorster did not have a pistol.

By the defendant’s principal challenge to his convictions, he urges that there was no statute at the time of the offenses or at the time of his trial proscribing first degree murder or fixing punishment for it, and the trial court erred in allowing him to be tried for first degree murder and in instructing the jury that its punishment was life imprisonment or for some period of time over 20 years. Since there was no valid murder statute, he says the convictions for assault to commit first and second degree murder are likewise void.

The indictment is in common law form and the court instructed the jury under T.C.A. 39-2401 et sequitur, as those sections read before the attempted substitution of a new murder statute by Chapter 192 of the Public Acts of 1973.

The defendant argues that the effect of State v. Hailey, Tenn., 505 S.W.2d 712 (1974), was to abolish the crime of first degree murder and the punishment for this crime. The state relies on Bramlett v. State, Tenn.Cr.App., 515 S.W.2d 895 (1974), to refute this contention.

These offenses occurred July 14, 1973, after the enactment of Chapter 192 of the Public Acts of 1973 effective May 8, 1973. The trial was held March' 28,1974, after our Supreme Court had held in Hailey v. State, supra, that Chapter 192 of the Public Acts of 1973 was void in its entirety.

Since Chapter 192 of the Public Acts of 1973 was unconstitutional, we held in Bramlett v. State, supra, that its attempted repeal of the prior T.C.A. 39-2402 was ineffective, leaving that statute in full force and effect. We did not reach the question of punishment for first degree murder because that case involved a conviction for second degree murder.

The effect of Hailey v. State, supra, declaring Chapter 192 of the Public Acts of 1973 void, was to leave in full force and effect the statutes relating to first degree murder and its punishment as they were at the time of the passage of the Act. Hailey had already been decided when these cases were tried and the trial judge was required to instruct the jury on the old statutes on first degree murder and its punishment. Those statutes were valid and were the law of the cases. The assignments challenging their application are overruled.

The defendant says the court erred in admitting over his objection the allegations of his ex-wife’s divorce bill.

For the purpose of impeaching the state’s first witness, Robert Bramlett, the defendant called as a witness the Chancery Court Clerk and had her bring the file in the divorce proceeding between the deceased and the defendant including the complaint. His counsel asked her the filing date, the date of the judgment, then asked her to examine the pleading and say when the deceased alleged she separated from the defendant and if it were a sworn complaint. The clerk answered these questions.

In response to a question from the district attorney general, defense counsel said they did not make the actual divorce petition an exhibit. The trial judge said it needed to be and it was then made an exhibit. Over the defendant’s objection, the district attorney general was permitted on cross-examination to have the clerk read some of the allegations of the bill. The court held this permissible since defense counsel had asked about the separation date from the allegations of the bill and had gone further than inquiry as to the filing date.

The allegations of the divorce bill were hearsay but the defendant opened the door to this evidence by inquiring about the sworn allegations as to the separation date. He cannot complain that the state was permitted to ask about other allegations of the bill. In any event we do not think this affected the result of the case. T.C.A. Sec. 27-117. The assignment is overruled.

The defendant says the evidence is insufficient as a matter of law to sustain the convictions. He contends in particular that he was so drunk and agitated that he could not have the requisite intent to commit murder in the first degree.

The defendant testified he was drunk and Sheriff Riggs said he smelled alcohol on his breath. The evidence does not support his claim of such drunkenness, however, as to make him incapable of premeditation. His testimony does not support this claim or that he was so agitated as to be incapable of premeditation. There is no evidence of insanity. He remembered the details of his activities that day, when he broke the trailer door, his words to the deceased, that he first shot at the feet of Mrs. Dorster and then shot her. He said a second before he shot the deceased he meant to shoot her. He surrendered when he was out of ammunition and the sheriff fired and was closing on him. These acts are consistent with one in control of his faculties. He told officers that he had been target practicing for this occasion and had been planning it three months. The evidence amply sustains the five convictions.

All assignments are overruled and the judgments are affirmed.

DWYER and O’BRIEN, JJ., concur.


author:
O’BRIEN, Judge.
      GALBREATH, Judge

text:
    Walter Bruce PERRY, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    June 25, 1975.
    Certiorari Denied by Supreme Court Sept. 8, 1975.

      Sidney T. Bruce, Memphis, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., John R. Lodge, Jr., Asst. Atty. Gen., Nashville, Harvey L. Herrin and John A. Irvine, Asst. Dist. Attys. Gen., Memphis, for defendant in error.
   OPINION

O’BRIEN, Judge.

Defendant was jointly indicted with Larry Franklin Davis, Gerald Martin Keith, and James Tyson Scott, Jr., for possession of marihuana with intent to sell. The jury found defendant guilty and fixed his punishment at not more than five years in the State Penitentiary with a fine of three thousand dollars ($3,000.00). The trial court pronounced sentence of confinement for not less than one year nor more than five years plus the three thousand dollar ($3,000.00) fine. Defendant has appealed this judgment.

For some unaccountable reason, the Bill of Exceptions which we have had to consider was reduced to typewriting by a Notary Public from a re-recording of the official court recording of the proceedings. It has required great patience and endurance to decipher this record. We have found innumerable places where either the questions put by counsel or the answers in response are designated by the word (unintelligible). There are nearly forty episodes in the record with the notation “proceedings inaudible due to failure of electronic equipment”. Were it not for the exhaustive examination of witnesses by counsel the task of reviewing this record would be impossible. It is only with great difficulty that we have been able to reach and give proper consideration to the assignments of error.

The first three assignments attack the weight and legal sufficiency of the evidence.

In summary, the evidence was that after obtaining a search warrant, police officers conducted a search of defendant’s apartment in which they found approximately sixty-five pounds of marihuana. The greater portion of this substance was found in a common room on the first floor of the dwelling. Some of this quantity was in compressed bricks which the evidence shows is a form used to import or transport marihuana in quantities. Another portion was found loose on a table. It is plain that the material was being re-packaged into smaller lots for distribution. In a second floor bedroom, occupied by defendant, the officers found approximately one pound or one half kilo of marihuana under the bed. At the time of the search, and arrest of defendant, the apartment was jointly occupied by him and a co-defendant, James Tyson Scott. It was stipulated at trial that all the substance found in the apartment was marihuana. Defendant testified and denied any knowledge of how, or when, or by whom, the marihuana was placed in the apartment. His testimony, corroborated by witnesses, was that he had been in the apartment during the noon hour and there was no marihuana in evidence. The officers arrived at approximately 2 p. m. and the discovery of the substance was made as discussed heretofore. James Tyson Scott testified he and another co-defendant, Davis, were entirely responsible for the marihuana. That he had invested two thousand dollars ($2,000.00) with Davis to make the purchase and Davis had procured the substance. A police officer testified that the quantity of marihuana found had an estimated value of about $8,500.00 in bulk and would net a profit of about $3,500.00 if sold in the smaller quantities in which it was being re-packaged.

It is earnestly argued by defense counsel that the only proof offered by the State in this case against the defendant is the evidence that the marihuana seized by the arresting officers was found in the garage apartment occupied by him and by defendant Scott. It is said that defendant did not arrive on the scene until about an hour and a half after the officers had searched the apartment, and in that interval seven other persons including defendant’s roommate arrived there. The record before us is not quite clear as to the number of people who came to the apartment while the officers were present. However, it is plain that each of the individuals who came there was placed under arrest. All were subsequently released except the four co-defendants in this case. Of those four, Davis was not arrested until approximately one month before the trial and at the time of trial was in a psychiatric hospital for the criminally insane in Nashville. Keith and this defendant were jointly tried. Keith received a sentence of eighteen months which was later suspended. He did not appeal. Scott, who endeavored to exonerate defendant by his testimony, had earlier entered a guilty plea. He received and served a one year sentence. It is argued there was no evidence of a separate analysis of the material found under defendant’s bed, but the record shows a stipulation that all plant material found in the apartment was, in fact, marihuana. It is said that the State’s case rests solely on the legal presumption that the marihuana found in defendant’s apartment was in his possession, and this presumption was rebutted by competent proof and therefor was no further evidence upon which to base the verdict. Although it is conceded that the courts of this state have upheld the legal presumption allegedly applied in this case, a number of cases are cited on the theory that mere possessory evidence is not enough to convict where rebuttal proof is offered. We have no dispute with the authorities offered on defendant’s behalf, but a careful review of these cases convinces us that defendant’s reliance on them is misplaced. The one distinguishing feature in each of them other than Whited v. State, which can be found at Tenn.Cr.App., 483 S.W.2d 594, is that the defendant in those cases appears to be the only person indicted for the offense charged. In Whited, supra, the defendant was found to be an employee of the principal who was indicted with him. This court reversed because the evidence was insufficient to sustain defendant’s complicity in the possession and control of the drugs. In the case sub judice, defendant was not indicted to the exclusion of his roommate, or the other two people who the evidence indicated were involved in the joint possession of the contraband. Also, there was other evidence in this case pointing to this defendant’s possession. The apartment was rented in his name. A fairly substantial quantity of the substance was found under his bed, which, apparently, was in similar compressed form to that discovered on the lower floor. This was unaccounted for. There were discrepancies in the testimony of the various defendants. The trial judge properly instructed the jury on aiding and abetting, as well as circumstantial evidence. We are of the opinion that there was sufficient evidence to submit the issues to the jury and to warrant the verdict of the jury on that evidence. The assignments going to the preponderance of the evidence are overruled.

It is contended that the punishment meted out by the jury was so great and overwhelming as to indicate bias and prejudice against the defendant.

While it is true the jury imposed the maximum sentence in this case, the judgment of the court was in accordance with the statute and defendant was sentenced to imprisonment for not less than one year nor more than five years which is within the legal limits fixed by law for the conviction offense. We find no legal justification for disturbing the judgment of the trial court, which stands affirmed.

DWYER, J., concurs.

GALBREATH, Judge

(dissenting).

I respectfully dissent.

I believe the assignment of error contending the evidence is insufficient to support of the verdict is well-taken. The State’s case against plaintiff in error Perry is based solely upon the presumption of control over his apartment where the contraband substance was found. It is true that the evidence established the apartment was rented in Perry’s name and that a relatively small portion of the marijuana was found under the bed of Perry. It is also true that in the absence of countervailing evidence this would be sufficient to charge defendant with control and possession of the substance. However, defendant countered this presumption with evidence which showed that his roommate, and not he, had the control and possession of the substance. Supporting this contention is not only the defendant’s testimony, but that of the roommate who completely exonerated defendant, and the roommate’s banker who substantiated the withdrawal of the money from the roommate’s bank account which was for the purpose of purchasing the marijuana.

This situation should be similar to that found in Morelock v. State, 187 Tenn. 478, 216 S.W.2d 5, where a conviction for receiving stolen property based solely upon a possession of recently stolen property could not be affirmed where the possession was not shown to be personal, exclusive, and unexplained. Here the presumption was neither personal, exclusive, nor unexplained.

In Shelton v. State, 190 Tenn. 518, 230 S.W.2d 986, a conviction for possession of intoxicating liquor was based on a presumption. The Supreme Court there held:

“The presumption that the defendant, as husband and head of the family, is the possessor and owner of any whiskey found on the premises of the marital dwelling, Crocker v. State, 148 Tenn. 106, 251 S.W. 914, is a presumption of law merely, and is effective as proof only so long as there is an entire lack of evidence. In the present case, the testimony of the officers that the wife was in possession and exercised dominion over the whiskey by attempting to destroy it, rebuts in its entirety, the presumption of law. Kelley, v. State, 184 Tenn. 143, 147, 197 S.W.2d 545. In the face of the positive evidence of the officers, the presumption of law has no probative force to support the conviction.”

While it was not officers who supported the evidence offered by the defendant in this case, the officers’ testimony did no more than place the marijuana in the apartment jointly occupied by defendant and his roommate. While the jury sees and hears the witnesses and is to be the judge of the credibility of them, where, as here, there is no conflict in testimony to be resolved, the jury is not privileged to disregard the evidence offered by defendant and his witnesses, for every witness is presumed to tell the truth.

“As to presumptions, it is settled law that while they may be indulged in criminal cases, this cannot be done to deprive the defendant of the presumption of innocence as was done in this case.
“In Marie v. State, 204 Tenn. 197, 319 S.W.2d 86, presumptions are discussed, and it is said that a presumption is a substitute for evidence which, in the absence of direct evidence conflicting, requires as a matter of law that a certain fact conclusion be accepted or proved by the jury. In this case, Underhill’s Criminal Evidence, 5th Ed., is quoted with approval as saying:
‘So, though the decisions are not harmonious, the better and more reasonable view is that the law will not countenance any presumption, which by overcoming the presumption of innocence will cast the burden of proving his innocence upon the defendant.’ Section 43, p. 66.
“In the case of Persons v. State> 90 Tenn. 291, 16 S.W. 726, this Court said:
‘It is contended the rules of evidence are the same in civil and criminal cases. Such is the general rule, but it does not follow, that because the rule is the same, that presumptions applicable in one are always applicable in the other, for an antagonistic presumption may exist, and does, in criminal cases; that is, the innocence of the defendant. That presumption of innocence does not allow the presumption of any fact against it.’ 90 Tenn. 295, 16 S.W. 727.
“This case was decided in 1891, but it is still the law in Tennessee today.” Liming v. State, 220 Tenn. 371, 417 S.W.2d 769.