author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Johnnie Lee JOHNSON, Appellant.
    No. 39138.
    Missouri Court of Appeals, St. Louis District, Division 1.
    Jan. 31, 1978.
    Donald A. Fee, Cape Girardeau, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Bradshaw Smith, Pros. Atty., Cape Girardeau, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant Johnnie Lee Johnson guilty of feloniously striking a police officer (§ 557.215, RSMo.) and the court fixed punishment at three years’ imprisonment. Defendant has appealed, contending the trial court committed plain error by denying his oral motion for a continuance. He further asserts plain error by the court allowing the state’s closing argument that defendant had failed to produce a material witness.

The state’s evidence was that police had arrested defendant for drunken driving. At that time it was noted defendant’s face was scratched and bruised. At the jail’s “holding room” defendant became boisterous and broke a window and officers entered to transfer him to a cell block. A struggle ensued and defendant assaulted police officer Dolan. Defendant testified that at the jail police beat him without provocation.

At the start of trial, which had long been scheduled, defense counsel orally moved for a month’s continuance to produce “his main witness,” Monty Irby, who had been arrested with defendant. No other fact was mentioned and the motion was denied. The motion failed in form and substance to comply with the rigorous requirements of Rule 25.08(b), VAMR, Continuances — Absence of Evidence.

Considered as plain error (Rule 27.20(c), YAMR), defendant failed to demonstrate here, as he must, that the trial court’s action in denying a continuance resulted in “manifest injustice or miscarriage of justice.” This, in accord with the landmark case of State v. Meiers, 412 S.W.2d 478[1] (Mo.1967), declaring there must be a sound, substantial manifestation — a strong, clear showing that injustice will result if the rule is not invoked. The trial court’s denial of defendant’s vague, oral motion for a continuance falls far short of qualifying under the plain error rule.

This same principle applies to defendant’s second point, wherein he contends abstractly that he was prejudiced by the prosecutor’s closing argument that defendant had failed to produce Monty Irby, his companion, as a witness. No trial objection was made. Neither defendant’s point relied on nor his argument states “what actions or rulings of the court are sought to be reviewed,” as required by Rule 84.04(d), VAMR. And, further, were we to consider defendant’s challenge on its merits, we would be compelled to deny it because the state’s rebuttal argument was in retaliation to defendant’s closing argument that the state had failed to produce certain witnesses.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


source: Caselaw Access Project

author: JAMES RUDDY, Special Judge.

license: Public Domain

text:
    Melvin GRANT, Movant-Appellant, v. STATE of Missouri, Respondent.
    Nos. 38071, 38141.
    Missouri Court of Appeals, St. Louis District, Special Division.
    Jan. 31, 1978.

      Graham W. LaBeaume, Huck, Kasten & LaBeaume, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for respondent.
   JAMES RUDDY, Special Judge.

On June 25, 1969, movant (hereinafter referred to as defendant) was convicted by a jury of Robbery in the First Degree By Means Of A Dangerous And Deadly Weapon, in Cause No. 274-R. On August 12, 1969, defendant pled guilty to a charge of Robbery in the First Degree By Means Of A Dangerous and Deadly Weapon, in Cause No. 275-R. On that date, August 12, 1969, the court sentenced movant to imprisonment for ten (10) years, the sentences in the two causes to run concurrently.

On March 4, 1974, defendant filed a Motion to Vacate Judgment and Sentence pursuant to Missouri Supreme Court Rule 27.-26. On December 19, 1975, defendant filed an Amended Motion to Vacate Sentence, specifically alleging among other things that he was denied and deprived of effective assistance of counsel in that his court appointed attorney failed to interview any of the State’s witnesses, and that the guilty plea was involuntary and a result of coercion.

On November 16, 1974, the sentence attacked by defendant, was commuted by the Governor of Missouri. On December 31, 1975, the State of Missouri filed a Motion to Dismiss Defendant’s Motion to Vacate and Correct Sentence on the ground that the defendant’s release from custody rendered his motion moot. The State also moved to dismiss the motion on the ground that defendant was not entitled to relief based on examination of the records in the two causes. While a prehearing conference was held on February 6, 1976, no official hearing was ever held.

On April 6, 1976, the trial court entered an “Opinion” and a “Memorandum for Clerk” denying relief as to Cause No. 274-R and granting relief as to Cause No. 275-R. This is a consolidated action in which defendant appeals the denial of relief in Cause No. 274-R and the State of Missouri appeals the granting of relief as to Cause No. 275-R.

In the appeal of Cause No. 274-R, defendant contends that it was error for the court to deny him an evidentiary hearing in that he alleged ineffective assistance of counsel in failing to interview the State’s witnesses prior to trial. Defendant further alleges that this claim is not refuted by the record.

The requirements necessary for a movant to qualify for an evidentiary hearing on a 27.26 motion are set out in Haliburton v. State, 546 S.W.2d 771, 773 (Mo.App.1977):

“1) His motion must allege facts, as opposed to conclusions, warranting relief. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974); Arnold v. State, 545 S.W.2d 683 (Mo.App.1976).
“2) Those facts must raise matters not refuted by the files and records in the case. Rule 27.26(e); Smith v. State, supra; Hogshooter, supra; Arnold v. State, supra; Morris v. State, 547 S.W.2d 827 (Mo.App.1976).
“3) The matters complained of must have resulted in prejudice to the defendant, Smith v. State, supra.”

Defendant’s complaint of counsel’s failure to interview any of State's witnesses prior to trial fails to comply with these requirements.

Defendant’s complaint that his counsel had not interviewed the State’s witnesses fails to disclose who these witnesses were and how these interviews would have been of any benefit to defendant. Thus the allegations are entirely conclusive in nature and do not comply with rule laid down in Smith v. State, 513 S.W.2d 407 (Mo. banc 1974) and Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974).

The ultimate test in determining the adequacy of legal representation is whether the efforts and conduct of counsel so prejudiced movant that he was denied a fair trial. Hall v. State, 496 S.W.2d 300, 303[3] (Mo.App.1973); Fritz v. State, 524 S.W.2d 197, 199[1] (Mo.App.1975). Defendant must show that a more complete investigation by counsel would have uncovered substantial evidence. State v. Arnold, 545 S.W.2d 682, 683 (Mo.App.1976).

Further evidence that defendant received adequate representation is found in the trial judge’s opinion denying the Motion to Vacate in Cause No. 274-R:

“If there was any obligation on Movant’s counsel in that cause to interview the State’s witnesses or contact Movant’s alibi witnesses before the day of trial, the transcript shows that there were about seventeen pages of cross-examination of the State’s witnesses and that six alibi witnesses were called to the stand and testified. In view of that, those allegations of incompetence could have no merit.”

It is clear that defendant’s claims of ineffective assistance of counsel are refuted by the record of the trial. In addition defendant also failed to meet his burden of showing by his pleadings that he was so prejudiced by counsel’s failure to investigate that he was denied a fair trial. Sherrill v. State, 515 S.W.2d 611, 613 (Mo.App.1974).

Thus under the applicable legal standards, the trial court properly declined to hold an evidentiary hearing on defendant’s motion.

In Cause No. 275-R, the State of Missouri appeals the granting of relief to defendant. Specifically the State alleges that the judgment of the trial court granting defendant’s Motion to Vacate Judgment and Sentence under Rule 27.26 is clearly erroneous, because the defendant had been released from custody under the sentence sought to be vacated prior to entry of the order granting relief.

Under Rule 27.26 “A prisoner in custody under sentence and claiming a right to set aside the sentence and claiming a right to be released . . . may file a Motion to Vacate or Set Aside the Sentence.” Here the movant is not in custody but had been released from custody as a result of a commutation of sentence by the governor. Relief under Rule 27.26 was not available to movant. State v. Brookshire, 377 S.W.2d 291 (Mo.1964); Bibbs v. State, 476 S.W.2d 590 (Mo.1972); Scroggins v. State, 499 S.W.2d 818 (Mo.App.1973); Howard v. State, 512 S.W.2d 206 (Mo.App.1974). Defendant’s attack is against the sentence in its entirety, and his claim is that he is entitled to release from custody. However, he has been unconditionally released therefrom, and for that reason he has already received all of the relief which could be afforded him under Rule 27.26.

We do not believe that movant’s motion should be considered as an application for a Writ of Coram Nobis. Neither the trial court nor the movant treated the motion as an application for a Writ of Coram Nobis. This writ is an extraordinary remedy and has limited application. State v. Harrison, 276 S.W.2d 222 (Mo.1955). The court in Jackson v. State, 540 S.W.2d 607, 609 (Mo.App.1976) sets forth the various cases which laid down the guidelines where the writ of coram nobis applies. The court in Jackson at p. 609 stated:

“A writ of error coram nobis is a civil action, Peterson v. State, 476 S.W.2d 608, 611 (Mo.1972), which lies from some unknown fact, going to the right of the court to proceed, which entirely defeats the power of the court to attain a valid result in the proceeding, State v. Campbell, 307 S.W.2d 486, 489 (Mo.1957), and which fact was, at the time of trial, unknown to the party seeking relief, and to the court. Howard v. State, 493 S.W.2d 14, 19 (Mo.App.1973). The right to relief under a writ of coram nobis is not absolute. Nor is the writ allowed as of course or as a matter of right. Blodgett v. State, 245 S.W.2d 839, 843 (Mo.1952). The burden of proof is on the movant to prove his case by a preponderance of the evidence. State v. Davis, 438 S.W.2d 232, 234 (Mo.1969) and Howard v. State, 493 S.W.2d 14, 19 (Mo.App.1973).”

The movant failed to show “some unknown fact, going to the right of the court to proceed, which entirely defeats the power of the court to attain a valid result in the proceeding”, State v. Campbell, 307 S.W.2d 486, 489 (Mo.1957). Nor was there any showing of any facts at the time of the plea unknown to movant. Howard v. State, 493 S.W.2d 14, 19 (Mo.App.1973).

The judgment is affirmed in Cause No. 274-R. The judgment in Cause No. 275-R, vacating the plea of guilty is reversed and the judgment is reinstated.

CLEMENS, P. J., DOWD and SMITH, JJ., and WILLIAM CORRIGAN, Special Judge, concur.


author: REINHARD, Judge.

text:
    Harold Eugene JONES, Plaintiff-Respondent, v. Gail Patricia MOSHKOWSKY, f/k/a Jones, Defendant-Appellant.
    No. 38239.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 31, 1978.
    Melvin Heller, Frank W. Kriegel, Jr., Melvin Heller, Inc., Clayton, for defendant-appellant.
   REINHARD, Judge.

Appellant wife appeals from an order of the trial court awarding child support to the respondent husband in a modification proceeding.

The parties were divorced on April 29, 1974, and primary custody of the two minor children was awarded to the wife. Husband was ordered to pay wife child support. Husband, in December, 1975, filed a Motion to Modify the Decree. He requested custody of the children and alleged “That the income and circumstances of Petitioner are sufficient to contribute to the raising and supporting entirely of his children.” However, in his prayer for relief he also requested child support. There was no service of process upon the wife, and on the morning of the hearing, the husband filed with the court a document subscribed by the wife and styled “Consent To Motion To Modify”. The wife appeared neither in person nor by counsel. The only witness was the husband. The court ordered wife to pay child support in the amount of $20.00 per month per child.

On appeal, appellant does not challenge the order transferring custody but cites several grounds for reversal of the order for child support. She contends that husband failed to meet his burden of proof on the issue of child support, and we agree.

The burden of proof on the Motion to Modify rested upon the movant husband. Rodgers v. Rodgers, 505 S.W.2d 138, 146 (Mo.App.1974). If wife’s financial resources were such that husband should be relieved from his primary responsibility for child support, it was his burden to establish that fact by substantial evidence. Suesserman v. Suesserman, 539 S.W.2d 741, 743 (Mo.App.1976).

Section 452.340, RSMo 1973, sets out the factors to be considered in the allowance of child support. It reads as follows:

“In a proceeding for nonretroactive invalidity, dissolution of marriage, legal separation, maintenance, or child support, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for his support, without regard to marital misconduct, after considering all relevant factors including:
(1) The father’s primary responsibility for support of his child;
(2) The financial resources of the child;
(3) The financial resources of the custodial parent;
(4) The standard of living the child would have enjoyed had the marriage not been dissolved;
(5) The physical and emotional condition of the child, and his educational needs; and
(6) The financial resources and needs of the noncustodial parent.”

The husband testified that his former wife had recently been a psychiatric patient in Barnes Hospital. The testimony pertinent to the issue of child support is as follows:

“Q Now, Mr. Jones, are you asking the Court to grant you child support in this matter also?
A Yes, ma’am.
Q What is your occupation?
A I’m in the Army.
Q Could you speak up?
A I’m in the Army. I’m a recruiter.
Q What is your annual income?
A About $13,000 a year.
Q Is that your gross?
A Yes, ma’am.
Q What is your net income?
A I really wouldn’t know.
Q You are not sure of that?
A No.
Q Do you know whether or not Gail Patricia Jones is out of the hospital at the present time?
A Yes, ma’am, she is.
Q And do you know whether she is employed?
A Yes, ma’am, she is.
Q And where is she employed?
A I believe, she is employed at Wohl Hospital as a medical secretary.
Q Do you have any idea what her income is at the present time?
A I believe, around $600 a month.
Q How much child support are you asking the Court to award you?
A $40 a month per child.
Q Are you also asking the Court to award you $400 in attorney fees?
A Yes.
Q Are you asking that Gail Patricia Jones pay that?
A Yes.
Q Do you recall whether or not you have any agreement with your wife as to the child support and attorney fees?
A No, ma’am. She received a copy of the original, the original petition which the lawyer filed.
Q Do you feel that you are able to care for the children?
A Yes, ma’am.
⅜ ⅜ * # * ⅜
Q Do you feel you are able to adequately support the children?
A Yes, ma’am.
Q Do you feel you need additional moneys in child support to support the children?
A Yes, ma’am.”

There was no evidence presented concerning the husband’s expenses, the particular needs of the children or the wife, and evidence of the wife’s income is indefinite.

Applying the standard of review declared in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), we find that the order for child support is not supported by substantial evidence.

The trial court’s order is hereby modified to delete therefrom the order of child support, and in all other respects, the order is affirmed.

STEWART, P. J., and STEPHAN, J., concur.

      . The document contains her consent to a change of custody but makes no reference to child support.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kenneth PILKERTON, Defendant-Appellant.
    No. 37948.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 31, 1978.

      Gordon Webb, Forrest S. Fitzroy, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, John M. Morris, Asst. Atty. Gen., George Westfall, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant appeals from a conviction of robbery and a sentence of fifteen (15) years imprisonment. On appeal, appellant raises three issues. . First, appellant argues that his rights under Amendments Six and Fourteen of the United States Constitution and Art. I, § 14 and 18(a) of the Missouri Constitution were violated because one of appellant’s alibi witnesses became unavailable during the eleven month delay. Secondly, that the trial court committed prejudicial error in allowing an unindorsed rebuttal witness to testify at trial. Thirdly, that the verdict was against the weight of the evidence. For the reasons discussed below we affirm the judgment.

On February 10, 1975, appellant Kenneth Pilkerton was charged by information with the armed robbery of the Bonanza Sirloin Pit Restaurant located in St. Louis County on December 23, 1974. Appellant was arraigned on February 21, 1975, and pleaded not guilty. The cause was set for trial on April 7, 1975. Thereafter, the state asked for and received five continuances. No reason was put forth for the continuances. The trial was finally commenced on January 14, 1976. In the interim appellant filed two motions to dismiss, the first a motion to dismiss for failure to prosecute, and the second a motion to dismiss because of a denial of appellant’s constitutional right to a speedy trial. Both motions were denied. The cause was presented to the jury on January 16, 1976, and on that day appellant was found guilty of first degree armed robbery and sentenced to fifteen years’ imprisonment.

At trial the state put on two co-conspirators who testified that the appellant had spearheaded the robbery. Appellant’s defense to the charges was an alibi that he was present at a party at the time the robbery was committed. Appellant took the stand to testify, and five witnesses were called to support this claim.

As to the first issue, appellant contends that the alibi witness in question, Patty Swift, could not be obtained to testify for the defense because she had left the jurisdiction during the delay. Appellant claims that this witness would have supported his alibi, and therefore, due to the delay he was prejudiced.

In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court details the factors to be used in evaluating a speedy trial claim. A defendant’s constitutional right to a speedy trial is to be determined on an ad hoc balancing basis. The court considered four factors in the weighing process: (1) length of the delay; (2) reason for the delay; (3) defendant’s assertion of his right; and (4) prejudice to the defendant. After weighing these factors, we find that appellant’s right to a speedy trial was not violated.

As to the first factor, length of delay, unless the delay is so inordinately lengthy it will not weigh heavily against the state. Morris v. Wyrick, 516 F.2d 1387, 1390 (8th Cir. 1975); cert. den. 423 U.S. 925, 96 S.Ct. 268, 46 L.Ed.2d 251. We hold that an eleven month delay is not inordinately lengthy. See Morris v. Wyrick, supra, (15½ month delay not inordinate); U. S. v. Skillman, 442 F.2d 542 (8th Cir. 1971) (20 month delay not inordinate).

The state failed to offer any justification for the delay. In such a situation, where the state has failed to justify its delay, this factor will be weighed against the state. Morris v. Wyrick, supra, 516 F.2d at 1390. Therefore, in this case this second factor will be weighed in favor of appellant.

The third factor to be considered is whether the defendant has asserted his right to a speedy trial. Although appellant never specifically asserted his right to a speedy trial in his August 27, 1975, motion to dismiss for failure to prosecute, he did make clear his intention to bring about a speedy completion of his cause. And in his December 17, 1975, motion to dismiss, appellant did specifically assert his right to a speedy trial. Therefore, this factor must weigh in favor of appellant.

The final factor, prejudice to the defendant, is the determinative element in this case. In dealing with this factor, the key issue is whether the accused’s ability to defend himself has been impaired. Barker v. Wingo, supra, 407 U.S. at 532, 92 S.Ct. 2182.

Appellant alleges that the delay denied him the opportunity to present his best alibi witness. Ms. Swift’s testimony would have placed appellant at a party on the night of the robbery as did the testimony of appellant's five other alibi witnesses. Also, Ms. Swift’s testimony allegedly would have been the most credible of all the alibi testimony as she could have placed appellant at the party for the greater and more detailed period of time. These arguments fail on several grounds.

First, appellant failed to show that the missing witness was unobtainable, nor that there was any attempt to secure the attendance of the witness at trial. There was testimony that placed Ms. Swift in Texas or Illinois. But the record does not show that appellant or his counsel made any attempt to contact Ms. Swift. In addition, if such contact had been made, then her presence could have been secured by the use of § 491.410 RSMo 1969, the “UNIFORM LAW TO SECURE THE ATTENDANCE OF WITNESSES FROM WITHIN OR WITHOUT STATE IN CRIMINAL PROCEEDINGS.” This is a uniform statute which has been adopted in both Texas and Illinois. Because there was no attempt to secure the presence of Ms. Swift at trial, the only conclusion which may be drawn is that Ms. Swift was not a key alibi witness.

Secondly, even if it were shown that Ms. Swift’s presence was unobtainable, it does not appear from the record that her testimony would have been any more credible than the other five alibi witnesses. Appellant testified that he had talked to Ms. Swift “off and on” while at the party, but that he had talked to everyone else present. The five alibi witnesses were also present at the party, so it does not appear that Ms. Swift could have added any significant testimony. Therefore, it does not appear that the delay caused any impairment in the preparation of appellant’s defense.

Therefore, applying the standard of the balancing test set forth in the Barker case, we conclude that the appellant has not established a violation of his constitutional right to a speedy trial.

As to the second issue raised, appellant argues that it was prejudicial error to allow an unindorsed rebuttal witness to testify. Rule 24.17, V.A.M.R., requires that the names of all material witnesses be indorsed upon the information. The settled case law of Missouri, however, has long held that rebuttal witnesses need not be so indorsed. State v. Hooker, 536 S.W.2d 487, 490 (Mo.App.1976); State v. Gamache, 519 S.W.2d 34, 40 (Mo.App.1975); State v. Malone, 301 S.W.2d 750, 758 (Mo.1957). In these eases this rule was applied to witnesses called by the state to rebut an alibi defense. Therefore, the ruling of the trial court allowing the state’s rebuttal witness to testify was not error.

Appellant’s third point on appeal is that “It was error to overrule appellant’s Motion For Acquittal in that the verdict was against the weight of the evidence.” This point is nothing more than an abstract statement as it fails to indicate in what way appellant believes the trial court erred. Therefore, this point was not properly preserved for appeal. Rule 84.04(d), V.A.M.R.; State v. Persinger, 533 S.W.2d 685 (Mo.App.1976). Even if we were to consider this point on appeal, our ruling would be adverse to appellant’s contention. This for the reason that it is beyond the ambits of appellate courts to inquire into the weight of evidence. State v. Amerson, 518 S.W.2d 29, 31 (Mo.1975). Nor can we sustain appellant’s claim under our plain error rule, Rule 27.20(e). Because our review of the evidence in the light most favorable to the verdict indicates that the evidence was more than sufficient to support the verdict.

Accordingly, judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Preston Lee BADY, Appellant.
    No. 38076.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 31, 1978.
    Robert C. Babione, Public Defender, James B. Ashwell, Asst. Public Defender, St. Louis, for appellant.
    George A. Peach, Circuit Atty., Nanette Laughrey, Asst. Circuit Atty., Paul Robert Otto, Asst. Atty. Gen., St. Louis, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of manslaughter and his resultant ten year sentence imposed by the trial court because of the jury’s inability to assess punishment. We affirm.

The evidence supported a finding that defendant, without justification, stabbed and killed his wife following a protracted drinking session and domestic quarrel. Defendant testified the stabbing occurred as a result of his efforts to defend himself from a knife attack by his wife.

Defendant’s only point on appeal is that the court erred in permitting a child (eight years old at the time of trial and seven when the stabbing occurred) to testify. The child had lived with defendant and his wife since he was approximately a year old and regarded them as his parents. He was the only person present when the stabbing occurred, other than defendant and the victim. Defendant’s objection to his testimony is based upon the contention that because of his emotionally upset condition at the time of the stabbing he did not have the mental capacity to truly observe and register the occurrence. This is the second of four tests of competence of children to testify as enunciated in Burnam v. Chicago Great Western R. Co., 340 Mo. 25, 100 S.W.2d 858 (1936). Determination of competency of a witness is within the discretion of the trial court and is not subject to review in the absence of a clear abuse of discretion. Burnam v. Chicago Great Western R. Co., supra, State v. Watson, 536 S.W.2d 59 (Mo.App.1976) [1],

We find no abuse here. In his in-chambers interrogation and his in-court testimony, the witness clearly demonstrated his observation and recollection of the incident. The alleged emotional upset purportedly resulted from defendant scolding him shortly before the stabbing occurred. The scolding was minor in nature and does not indicate severe trauma. Arguments and drinking were common in the home and there is no indication they caused any particular upset to the boy. The testimony given was direct, straightforward, and lacking in confusion. Slight discrepancies, if in fact they were discrepancies, go to the weight of his testimony, not its admissibility. The testimony was also corroborated in part by the defendant’s admission when arrested that he had stabbed his wife during a domestic quarrel. The state carried its burden of demonstrating the competency of the child to testify.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: TITUS, Judge.

text:
    Willie J. WILSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10750.
    Missouri Court of Appeals, Springfield District.
    Feb. 1, 1978.

      William Clayton Vandivort, Sikeston, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Movant appeals from the order of the trial court denying his Rule 27.26 motion without an evidentiary hearing.

Inter alia, the pro se motion states that after a plea of not guilty and a trial, movant was convicted of “Murder 2nd degree” and sentenced on June 12, 1975, to imprisonment for a term of ten years. No appeal was taken. The grounds for vacating, setting aside or correcting the conviction and sentence, are stated in the motion thusly: “Movant herein was deprived of his statutory and constitutional right to appeal his conviction . . . because his counsel mislead (sic) and promised that if no appeal were taken he, counsel, would obtain a parole for movant at the end of one year. In the instant case counsel induced movant to drop his right to appeal by misleading and promising him that he could obtain a parole for movant at the end of one years (sic) confinement . . . . [C]ounsel has not kept his promise and thus movant [was] mislead (sic) and induced to relinquish one of his most basic constitutional rights .... Therefore it is respectfully urged that the Court enter an order reinstating movant’s direct appeal and appoint counsel thereon or in the alternate to call this case for a hearing wherein movant can present witnesses and proof to show that the only reason he dropped his appeal was due to the promises and inducements on the part of movant’s counsel.”

The trial court dismissed the motion upon findings “that the motion of the movant does not state facts sufficient to show that he is entitled to the relief he seeks; that conclusions are stated and not facts; that the Court has no jurisdiction over pardons or paroles after actual committment (sic).” In part, we disagree.

Although somewhat repetitiously written, the motion, in fine, avers: (1) that movant’s counsel represented that he could obtain a parole for movant, (2) that counsel promised that if movant would forgo his right to appeal, counsel would obtain a parole for movant one year thereafter, (3) that movant, in obvious reliance upon the representation and promise of his counsel, was induced, i. e., persuaded, and misled to relinquish his right of appeal, and (4) that counsel, to movant’s detriment, did not or could not keep the promise.

We believe the allegations contained in the motion fairly present the justiciable issues of whether movant’s right to appeal and his right to effective assistance of counsel have been infringed. Regardless of whether the attorney be appointed or selected, the constitution assures a defendant the effective representation by counsel. Holbert v. State, 439 S.W.2d 507, 509[4] (Mo.1969). Likewise, “where movant alleged that he was pressured or coerced into waiving his right to appeal by means which violated his constitutional rights, he was adjudged to be entitled to an evidentiary hearing in a 27.26 proceeding to determine whether he was entitled to relief available under provisions of that rule. The general language of [Rule 27.26](b)(3) was intended to provide for such situations in order to protect a defendant from uninformed or involuntary waiver of known constitutional rights. It was not intended to and does not give a right to collaterally attack alleged constitutional deficiencies which the defendant has voluntarily and knowingly waived as a basis for final disposition of his case.” Nickens v. State, 506 S.W.2d 381, 386[3] (Mo.1974). Alluding to the last quoted sentence from Nickens, the court in Noble v. State, 552 S.W.2d 267, 275 (Mo.App.1977) observed: “In so holding, the court equated knowingly and voluntarily waiving the right to appeal with knowingly and voluntarily entering a plea of guilty.”

If it be established that a defendant pleaded guilty on the ill-founded assurances of his counsel that by so doing he would be granted parole or probation, then defendant, as movant in a Rule 27.26 proceeding, would be entitled to have his conviction set aside and his plea withdrawn. State v. Rose, 440 S.W.2d 441, 445-446[5] (Mo.1969); Lee v. State, 499 S.W.2d 569 (Mo.App.1973). On the other hand, when a defendant is declared guilty after trial, the time between sentencing and the expiration of the period allowed for appeal is a critical stage in the criminal proceedings and the defendant’s constitutional right to effective assistance of counsel covers that period. Williams v. United States, 402 F.2d 548, 552[5] (8th Cir. 1968). When a defendant desires to appeal his conviction, failure of his counsel to take the proper and necessary steps to perfect an appeal constitutes such an extraordinary inattention to the defendant’s interest as to amount to ineffective assistance of counsel cognizable on a motion to vacate under Rule 27.26. Green v. State, supra, n. 2, 451 S.W.2d at 85[2]; State v. Frey, supra, n. 2, 441 S.W.2d at 15. While we admittedly are not confronted with the exact situation appearing in the just cited cases, we see little difference in the resulting damage by a situation where defendant is deprived of his right to appeal because of the misrepresentation, negligence or inattention of counsel and the situation where a defendant is wrongfully dissuaded from perfecting an appeal through false and improbable assurances of counsel that upon the expiration of one year he will be released from confinement on parole.

An evidentiary hearing on a fact issue properly raised in a Rule 27.26 motion is required. Rush v. State, 439 S.W.2d 504, 506 (Mo.1969). What we have written evidences our belief that the motion herein raised an issue of fact. Albeit the constitutional right to appeal is involved, it is for the trial court in the first instance after an evidentiary hearing to determine the issues properly presented. Williams v. State, 530 S.W.2d 740, 742[6] (Mo.App.1975).

The order dismissing the Rule 27.26 motion is reversed and the cause is remanded to the trial court for a hearing and determination of the reinstated motion.

All concur.

      . Rule references are to Supreme Court Rules, V.A.M.R.

      . Should movant prove successful with his Rule 27.26 motion, the proper procedure would be for the trial court to vacate and set aside the sentence previously imposed and to resentence movant, giving consideration to the time mov-ant has already served. This procedure would permit an appeal from the date of the new sentence. Green v. State, 451 S.W.2d 82, 85[3] (Mo.1970); State v. Frey, 441 S.W.2d 11, 15[5-6] (Mo.1969).


author: COOPER, Justice.

text:
    NEWS MART, INC., d/b/a Kingston Pike News, Appellant, v. STATE of Tennessee ex rel. Ronald A. WEBSTER, District Attorney General for the Third Judicial Circuit of Tennessee, Appellee. V.S.D., INC., d/b/a Adult Boutique, Appellant, v. STATE of Tennessee ex rel. Ronald A. WEBSTER, District Attorney General for the Third Judicial Circuit of Tennessee, Appellee.
    Supreme Court of Tennessee.
    Feb. 13, 1978.
    Joseph J. Levitt, Jr., Knoxville, Frierson M. Graves, Jr., Memphis, for appellants.
    Robert L. Jolley, Jr., Asst. Atty. Gen., Brooks McLemore, Jr., Atty. Gen., Nashville, for appellee.
   COOPER, Justice.

OPINION

News Mart, Inc., d/b/a Kingston Pike News, is the operator of a bookstore and motion picture establishment where motion pictures, commonly described as “peep shows,” are shown. Appellant, V.S.D., Inc., d/b/a Adult Boutique, operates a similar establishment. The District Attorney General of Knox County brought separate actions against the appellants under the 1974 Obscenity Statute, codified as T.C.A. §§ 39-3010 — 39-3022, seeking to enjoin the further exhibition of untitled movies described in affidavits accompanying the complaints. The trial court found the several films to be obscene and permanently enjoined each of the appellants, their agents and employees, from exhibiting: (1) the untitled motion pictures “described in the complaint and the affidavit of Captain Roy Whitfield” filed as an exhibit to the complaint, and (2) “any film, picture, publication, or other matter which depicts explicit acts of fellatio, cunnilingus, and excretory function of the human body.”

On appeal, no issue is made of the finding by the trial court that the several “peep show” films described in the complaints and affidavits are obscene. Appellants do take issue, however, with the permanent injunctions as they apply to the future showing of unnamed and undescribed films. They also insist that the injunctions against showing the films that were the subject of the action are defective in that reference is made to the complaints and affidavits for a description of the films.

In our opinion, both contentions of the appellants are correct. The procedure set forth in the present obscenity act for the issuance of injunctions prohibiting the showing or displaying of obscene material is markedly similar to that set forth in the prior obscenity act. And, in considering the prior act in New Riviera Arts Theatre v. State ex rel Davis, 219 Tenn. 652, 412 S.W.2d 890 (1967), this court pointed out that the statute did not “authorize an injunction to restrain the acquisition and display of unidentified films, coming attractions or trailers which a court might in the future hold to be obscene. [And further] such a construction of the statute would vest in the courts an unlimited power of prior restraint on freedom of speech and press,” violative of the first, fifth, and fourteenth amendments to the Constitution of the United States. We find nothing in the present statute — nor does the state insist there is — that supports the issuance of an injunction restraining the future showing of unnamed and undescribed films, nor do we find therein any basis for holding that such an injunction.would not be an unconstitutional prior restraint on the freedom of expression. Accordingly, the injunctions prohibiting the appellants, their agents and employees, from the future showing of untitled and undescribed films, not the subject of these actions, are reversed.

As to the injunction against the further showing of the films that were the subject of the complaints in these cases, Rule 65.02 of the Tennessee Rules of Civil Procedure specifically provides that:

(1) Every restraining order or injunction shall be specific in terms and shall describe in reasonable detail, and not by reference to the complaint or other document, the act restrained or enjoined, (emphasis supplied)

While there is no question but that the descriptions of the untitled films were described with specificity in the complaints and the affidavits of Captain Whitfield, the descriptions were not included in the injunctions other than by reference. This is contra to the requirement set forth in Rule 65.02, and necessitates a modification of the injunctions for them to be effective. We think the better procedure would be for the trial court to make the necessary modifications in the injunctions. Accordingly, both actions are remanded to the trial court with instructions that it modify the injunctions to include the detailed descriptions of the films set forth in the complaints and the affidavits of .Captain Whitfield. Costs in this court are adjudged against appellants equally.

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


author: HENRY, Chief Justice.

text:
    PARKRIDGE HOSPITAL, INC., Appellant, v. Jayne Ann WOODS, Commissioner of Revenue, State of Tennessee, Appellee.
    Supreme Court of Tennessee.
    Feb. 13, 1978.
    Roger W. Dickson, Carl E. Hartley, Sto-phel, Caldwell & Heggie, Chattanooga, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Jim G. Creecy, Asst. Atty. Gen., Nashville, for ap-pellee.
   OPINION

HENRY, Chief Justice.

In this civil action for recovery of sales and use taxes paid under protest, the sole issue is whether human blood is “tangible personal property” subject to sale or use tax. The Chancellor responded in the affirmative. We agree.

We adopt the opinion of the Chancellor as the opinion of the Court. It reads, in pertinent part, as follows:

The plaintiff is a domestic corporation, with its principal place of business in Chattanooga, Tennessee. The defendant audited the plaintiff for sales and use tax purposes for the period of January 1, 1973 through December 31, 1975 and claimed sales and use tax deficiencies for that period. One of the issues involved in that audit was the applicability of Tennessee sales and use taxes to human blood, and upon the assessment of the sales and use taxes, the same was paid under protest, pursuant to T.C.A. 67-2303, which was followed by the filing of this Complaint within the statutory period. ' The blood at issue was obtained by the plaintiff from essentially two sources: Blood Alliance, a commercial blood bank, and Blood Assurance, a non-profit organization, making blood available to patients in need of transfusions.
It is the Commissioner’s contention that the commodity, human blood, is within the taxing provisions of the sales and use tax law, and it is the plaintiff’s contention that human blood is not a commodity subject to the Tennessee sales or use tax and that the providing of such blood to plaintiff by sources such as Blood Alliance and Blood Assurance is either outside the present scope of or exempt from the Tennessee sales and use tax statutes.
The issue thus presented to the Court is primarily one of statutory construction of the existing statutes related to the subject matter.
T.C.A. 67-3003 states as follows:
“Levy of tax — Rate.—It is declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of selling tangible personal property at retail in this state, or who uses or consumes in this state any item or article of tangible personal property as defined in this chapter, * *
“Tangible personal property” is defined in T.C.A. 67-3002(1) to mean and include “personal property, which may be seen, weighed, measured, felt, or touched, or is in any other manner perceptible to the senses.” “Sale” is defined in T.C.A. 67-3002(b) to mean, “any transfer of title or possession, * * * in any manner or by any means whatsoever of tangible personal property for a consideration, * *.” Under the wording of the legislative enactments, when given their natural and ordinary meaning of the language used, it is obvious that human blood falls within the ambit of this statute, being an item of tangible personal property. Declaring that human blood is taxable under this taxing statute would not be open to debate, but for the passage by the Tennessee General Assembly of the following Act found in the Uniform Commercial Code at T.C.A. 47-2-316(5) (1967):
“The implied warranties of merchantability and fitness shall not be applicable to a contract for the sale, procurement, processing, distribution or use of human tissues (such as corneas, bones, or organs), whole blood, plasma, blood products, or blood derivatives. Such human tissues, whole blood, plasma, blood products, or blood derivatives shall not be considered commodities subject to sale or barter, and the transplanting, injection, transfusion or other transfer of such substances into the human body shall be considered a medical service.”
It is the fundamental rule of statutory construction to ascertain and give effect to the intention or purpose of the Legislature as expressed in the statute. The purposes of the Uniform Commercial Code as enumerated in T.C.A. 47-1-102 are “to simplify, clarify and modernize the law governing commercial transactions.” The purpose of the sales and use tax is to derive revenue for the State. Both laws are inclusive and are sufficient to regulate the subject matter their enactment is purported to cover and regulate. The issue thus becomes whether the enactment by the Legislature in the Uniform Commercial Code, to the effect that human blood “shall not be considered commodities subject to sale or barter * * *,” excludes human blood from taxation under the sales and use tax law. The Court concludes it does not.
It is the duty of the Court in construing statutes to avoid a construction which will place one statute in conflict with another, and the Court should resolve any possible conflict between the statutes in favor of each other, whenever possible, so as to provide a harmonious operation of the laws. Plaintiff has cited and urges upon the Court as controlling an Alabama case, State v. Community Blood and Plasma Service, Inc. (Alabama Court of Civil Appeals), [48 Ala.App. 658] 267 So.2d 176. In that case the Alabama Court was confronted with the issue before this Court and concluded under Alabama law that blood was not subject to the Alabama sales and use tax. The Alabama statutes involved are substantially similar to Tennessee statutes in both the sales and Commercial Code areas; however, the Commercial Code Section involved in the State of Alabama is dissimilar in one important regard, as was emphasized by the Alabama Court. The Alabama Court in making its determination that human blood was not taxable emphasized and relied upon the statutory provision, “ * * * is declared for all purposes to be in the rendition of a service by every person participating therein and whether any remuneration is paid therefor is declared not to be a sale of such whole blood, plasma, blood products, blood derivatives, or other human tissues.” The Alabama Court in discussing this, at page 179 of its Opinion, said:
“While this court is most aware that this code section is concerned with implied warranty, the fact remains that the legislature has stated and determined such activity to be a service and not a sale.
We particularly note the language of the statute which states ‘is declared for all purposes to be the rendition of a service * * ”
The Tennessee statute does not contain the phrase, “for all purposes,” relied upon heavily by the Alabama Court in arriving at its Legislature’s intent.
While the Tennessee Courts have recognized that repeals by implication may be made in subsequent statutory enactments without raising constitutional questions (see English v. Farrar [206 Tenn. 188], 332 S.W.2d 215, Tennessee, 1960), the sales tax law contains self-contained concepts, and it is not the legislative intent to erode the meaning and efficacy of the sales tax law by the Court’s reading into its application definitions from other bodies of law, unless the intent is clearly shown. See Sales and Use Taxes, 68 Am.Jur.2d Section 65; White Stores v. Atkins [202 Tenn. 180], 303 S.W.2d 720, Tennessee (1957). In any event, a sale is not critical.
“To the contrary, the stated intent of the legislature is to tax every retail sale of tangible personal property and every use of personal property in this state, except for exceptions expressly stated in the Retail Sales Act.” (Emphasis supplied.)
Shoppers Guide Pub. Co., Inc. v. Woods, [Tenn.] 547 S.W.2d 561, at 564.
Finally, the contention of the plaintiff is that blood is outside of the scope of the Sales Tax Act. This contention, however, is negated by the declared legislative intent contained in T.C.A. 67-3008.

Affirmed.

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


author: FONES, Justice.

text:
    Bobby C. GANUS, Appellant, v. Laverne ASHER and Maud B. Asher d/b/a Asher Service and Decorating Company, Appellees.
    Supreme Court of Tennessee.
    Feb. 13, 1978.

      T. Robert Hill, Hill & Sanders, Jackson, for appellant.
    W. Lee Lackey, Lackey & Lackey, Savannah, for appellees.
   OPINION

FONES, Justice.

In this workmen’s compensation case both plaintiff and defendant moved for summary judgment and the learned trial judge granted defendants’ motion and dismissed the suit.

The issue was whether defendants had five or more employees as contemplated by T.C.A. §§ 50-902(a), and 50-906(d), bringing the partnership within the coverage of the workmen’s compensation act.

On behalf of plaintiff, his own affidavit and that of C. M. Sharp, another employee of defendants assert that:

“On November 12, 1975, and for a substantial length of time prior thereto, Ash-er’s Service & Decorating Company had in its regular employment the following employees: David A. Tindol, Bobby Gan-us, Gene R. Wilson, Anna Pettigrew, John Vandiver, Bobby R. Free, Vallie D. Moffett, Ronnie L. Young, Hollis Johnson and C. M. Sharp.”

These names were listed as employees on defendants’ quarterly federal tax return form 941 for the quarter ending September 30, 1975.

Defendants relied upon Maude Asher’s answers to plaintiff’s interrogatories, and her affidavit wherein she asserted that at no time between July 1,1975 , and November 12, 1975, the date of plaintiff’s injury, did the partnership have in its regular employment more than four employees.

The trial judge did not expressly or impliedly find that there was no genuine issue as to any material fact. T.R.C.P. 56.03. The recitation in the decree is to the effect that after considering the entire record, the Court found that defendants did not have five (5) or more employees on the date of the injury and therefore they were not subject to the workmen’s compensation act, T.C.A. § 50-902(a).

The evidence being contradictory on a material issue of fact, it was error to grant summary judgment. T.R.C.P. 56.03.

The evidence considered above was found in the technical record and is properly before this Court on an appeal from summary judgment by virtue of Supreme Court Rule 14(8). The status of the bill of exceptions is immaterial to the disposition we must make of this case.

The trial judge was also in error in declaring the law to be that employer must have five (5) persons regularly employed on the day of the injury.

Tennessee Code Annotated § 50-902(a) defines an “employer” in terms of “using the services of not less than five persons for pay.”

Tennessee Code Annotated § 50-906, provides in relevant part:

“50-906. Employments not covered— Election of coverage — Revocation of election. — The Workmen’s Compensation Law shall not apply to:
(d) In cases where less than five (5) persons are regularly employed; provided, however, that in such cases the employer may accept the provisions of this law by filing written notice thereof with the said division of workmen’s compensation at least thirty (30) days before the happening of any accident or death, and may at any time withdraw the acceptance by giving like notice of withdrawal.”

In Brady v. Reed, 186 Tenn. 556, 212 S.W.2d 378 (1948), defendant’s contention was that “they never at any time had five persons regularly employed.” (Emphasis added.) 186 Tenn. at 559, 212 S.W.2d 378, 379. At one point in the opinion the Court said:

“It is clear from the record that in computing the number of persons regularly employed on the day of the injury the trial judge counted the petitioner Reed, Gibson, Willie McCoy (colored, who dug the basement), the two Brady boys and the two Bolling boys, making a total of seven persons.” 186 Tenn. at 562, 212 S.W.2d at 381.

The decisive issues in Brady were whether the persons named were casual employees or regular employees, and the Court held that they were regular employees. The fact that the parties and the Court used the day of injury to count employees under the factual circumstances revealed in the Brady opinion, is not equivalent to a judicial pronouncement of a rule that coverage under the Workmen’s Compensation Act is dependent upon five (5) regular employees being present on the day of the injury.

Threet v. Cox, 189 Tenn. 477, 226 S.W.2d 86 (1949), was also cited as requiring five (5) employees at the time of the injury. The trial court’s dismissal of plaintiff’s suit upon a finding that defendant did not have five (5) or more regular employees was affirmed on appeal. The plaintiff’s assignment of error was as follows:

“ ‘The finding of the Trial Court, that Defendant did not have five or more regular employees at the time of Complainant’s injury, is not supported by material evidence.’ ” 189 Tenn. at 480, 226 S.W.2d at 88.

However, the Court quotes from the finding of the trial judge as follows:

“ ‘. . the Court finds that the defendant was not subject to the provisions of the workmen’s compensation laws of the State of Tennessee, at the time the petitioner was injured while working in the mines of the defendant in that the defendant had only been operating said mines for a period of three weeks prior to the plaintiff’s injury, and during said period of time which it operated said mines it did not have five or more regular employees working for it in the operation of said mines, and the plaintiff could not maintain his suit under the Workmen’s Compensation Law; . . . .”’ (Emphasis added.) 189 Tenn. at 478, 479, 226 S.W.2d at 87.

Mr. Justice Gailor writing for the Court did not make any express pronouncement that the date of the injury controls or that any time prior to the date of injury would suffice to subject an employer to the act. The facts did not require that adjudication as it appears the employment situation was the same throughout the period of operation that it was on the day of the injury. While Threet does not qualify as clear precedent, there is more logic for the view that this Court’s affirmance of the trial court’s finding was approval of a rule embracing the period prior to the injury, rather than limited to the date of injury, as obliquely expressed in the plaintiff’s assignment of error.

Plaintiff asks us to hold that if an employer has paid five (5) or more persons for work during a period of time which he would leave fo our discretion to select, the coverage mínimums of the act would be satisfied. He argues that Owens v. Turner, 211 Tenn. 121, 362 S.W.2d 793 (1962), provides authority for that result. In that case defendant was apparently a builder who paid workmen a fixed price per unit of installation, such as a window or door, or a square of roofing, rather than by the hour. The principal issue litigated was whether or not the workmen were employees or independent contractors. No fact issue was presented that required a decision that the day of injury or the period preceding injury must be used to determine coverage. We therefore attach no significance to the factual recitation in the opinion that an accountant witness testified “that during 1960, the year of the injury, defendant paid compensation to twenty people from time to time.”

We think the legislature intended that on the first day that five or more persons, who may be classified as regular employees under the act, work for an employer, coverage attaches and may not be withdrawn in subsequent days solely by the device of reducing the work force to four or less, regular employees.

Therefore the issue in this case upon remand is whether or not at any time between the formation of the partnership on July 1, 1975, and the date of the injury, November 12, 1975, defendant had five or more regular employees.

This case is remanded to the Chancery Court for Hardin County for a trial and decision on the merits. The erroneous insistance of both parties, initiated by plaintiff, that this case was ripe for disposition on summary judgment contributed to this unnecessary appeal. Equity requires that the cost of this appeal be shared equally. Costs in the trial court will abide the result there.

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

      . Date of formation of the partnership.


author: MATHERNE, Judge.

text:
    In re ESTATE of Thomas A. CUNEO. Martha Cuneo REED, Appellant, v. UNION PLANTERS NATIONAL BANK OF MEMPHIS, Appellee.
    Court of Appeals of Tennessee, Western Section.
    May 18, 1977.
    Certiorari Denied by Supreme Court Dec. 12, 1977.

      Thomas Wardlow Steele, Gullett, Steele, Sanford, Robinson & Merritt, Nashville, for appellant.
    Roane Waring, Jr., Waring, Cox, James Sklar & Allen and Robert M. Johnson, Canada, Russell & Turner, Memphis, for appel-lee.
   MATHERNE, Judge.

The issue on appeal is whether the executor bank has properly accounted for the estate of Thomas A. Cuneo, deceased. For the reasons hereinafter set out, we hold that the executor has not properly accounted.

I.

The executor filed its First Partial Accounting with the Clerk of the Probate Court for the period of December 8, 1959 to November 30, 1965. Annually thereafter the executor filed eight additional partial accountings; the last, or Ninth Partial Accounting, was filed on January 29, 1974, covering the period November 30, 1972, to November 30, 1973. The clerk approved each of these accountings and recorded them. The probate court, however, did not then confirm any of these accountings. It appears from the record that they were not presented to the court for confirmation.

On April 30, 1974, the executor filed its Tenth and Final Accounting with the clerk. On June 3, 1974, the complainant, Mrs. Reed, filed her exceptions to the account-ings. The executor filed two amended accountings on September 20, 1974, and January 21, 1975. On May 30, 1975, the clerk overruled the exceptions to the accountings and ruled that the executor “has properly accounted for all assets, receipts and disbursements covering those accounting periods.” Mrs. Reed filed exceptions to the clerk’s report which were heard by the probate judge. On February 24, 1976, the probate judge confirmed the final accounting and all prior partial accountings, as amended, and ruled that “every dollar coming into the Estate of Thomas A. Cuneo has been accounted for and disbursed.”

The exceptions to the clerk’s report are, in the main, very general. The exceptor presented a certified public accountant, who failed to point out any specific error in the accountings. This witness said that he could find nothing wrong with the account-ings but that he would not rely upon them. One item, interest due on $17,817.32 wrongfully paid out by the executor as litigation expenses and later refunded to the estate, was specifically before the probate judge. Other than for that one specific item, we cannot seriously fault the probate judge for approving the accountings when viewed in the light of the exceptions raised and the proof presented.

Having reviewed these accountings, we find serious error in the manner in which the executor accounted for this estate and made distribution of the assets. Based upon these accountings we also find that the complainant, Mrs. Reed, has knowingly and intentionally accepted money from the estate in excess of the amount to which she was entitled. We hold that these acts by the executor and Mrs. Reed are in direct contravention of the express intent of the testator, and, when so revealed on the face of the accountings, those accountings cannot be approved.

II.

A proper focus on the error committed requires a review of the pertinent parts of the Last Will and Testament of Thomas A. Cuneo, deceased. Mr. Cuneo died on September 30, 1959. By his will he left one-half of his adjusted gross estate in the defendant, Union Planters National Bank, Trustee, under a marital deduction trust for the benefit of his wife, Zadie S. Cuneo, with full power of testamentary appointment placed in the wife. This trust authorized the payment of the income therefrom to the wife with a minimum of $700 per month regardless of how much income was earned. The trust also provided that in addition the trustee would encroach upon corpus for the “reasonable support, maintenance and welfare” of the wife and “to provide for any expenses of sickness or other emergencies.” The bank was also appointed executor of the estate, without bond as trustee or executor.

Zadie S. Cuneo died on November 11, 1960, and, even though her will is not in the record, it is admitted that by her last will and testament she appointed the entire corpus of the marital trust to her daughter, Martha Cuneo Reed, the complainant herein. It is important to note that the complainant thereby acquired fee simple title to the corpus of the marital trust.

The will of Thomas A. Cuneo further provided that all debts, expenses, taxes and charges against his estate would be paid out of his general estate and should not be a charge against any legatee, devisee, or beneficiary under the will, except to reduce the amount of the residuary estate.

The net residuary estate was devised to the defendant bank as trustee for the benefit of the testator’s daughter, the complainant, Martha Cuneo Reed. The daughter was to receive the income of the trust, but not less than $400 per month, until the death of the testator’s widow. After the death of the widow, the daughter was to receive $1,000 per month, provided that if the trust income exceeded that amount then any excess would be added to the corpus of the trust. Full power of encroachment was vested in the trustee. The trust then provided as follows:

This trust shall terminate at the death of my daughter and any remaining assets be distributed in equal shares among her issue, per stirpes. In the event my daughter should die without issue surviving, and with my wife surviving, the income shall be paid to my wife for and during her natural life. If, at the death of my daughter, without issue, my wife had predeceased her, the income shall be paid in equal shares to my sisters for their lifetime. If, at the death of my daughter without issue, my wife and my sisters have predeceased her, my daughter shall have the power in her last will and testament to appoint the corpus of this trust at its termination, to her estate or to any person or persons that she may designate.

It is apparent that the residuary trust did not vest in Mrs. Reed in fee. The most she could expect from that trust would be to exhaust it by receiving $1,000 per month or to devise the corpus by her last will and testament, provided that the other named contingencies did not exist at the time of her death.

The basic fault we find with the accounting and distribution as made by the executor is that it has, with the knowledge and consent of Mrs. Reed, effectively and erroneously transferred funds from the residuary trust into the marital trust, thereby vesting too large a portion of the estate in Mrs. Reed in fee, contrary to the intent of the testator. If Zadie S. Cuneo had by her will appointed the corpus of the marital trust to some other person, the issues between that person and Mrs. Reed would have been more sharply drawn. The burden of administering the estate so that each trust would be carried out according to the intent of the testator rested upon the executor-trustee named in the will. It is the duty of the courts to see that this burden is met by the executor-trustee.

With the provisions of the will in mind, whereby two distinct trusts were set up, we will now examine the accounting and point out wherein we hold that the intent of the testator has been severely negated.

III.

The executor found the marital trust to total $215,696.26. This figure was determined as of January, 1961. The residuary trust is reported as being $73,949.94.

The executor did not separate the funds which represented the marital trust from the funds of the general estate. In its accounting, the executor allowed the marital trust interest at the rate of 6% per annum, compounded annually from November 11, 1961, through the date of its accounting for the marital trust, January 1, 1973. The funds representing the marital trust were paid, corpus and interest, to Mrs. Reed, as follows:

December 31, 1968, $ 50,000.00
December 24,1969, 165,696.26
January 15, 1970, 28,653.73
May 10, 1971, 4,750.08
January 22, 1973, 50,000.00
December 31, 1973, 67,243.82
Total $366,343.89

This total amount, corpus and interest, was paid out of the general estate of Thomas A. Cuneo. We hold that the executor erred in paying, and Mrs. Reed erred in accepting, interest at 6% per annum compounded annually on the marital trust, because that resulted in overly diminishing the amount of the residuary trust. We hold, however, that Mrs. Reed was entitled to the amount earned by the marital trust during the years prior to her receipt of the corpus. The record does not reveal those earnings.

When the amount of the marital trust was determined in January 1961, the executor should have set that trust up and separated it from the general estate. The executor was, however, justified in not paying the corpus over to Mrs. Reed because she had instituted a lawsuit in the federal court to set aside the sale by the executor of the testator’s interest in the partnership of Ro-bilio & Cuneo, claiming fraud on the part of the purchasers and inadequate consideration. That lawsuit could have materially affected the amount of the marital trust.

Having left the funds of the marital trust in the general estate, the executor can charge the general estate only the rate of income actually earned by the general estate in each of the years in question as applied to the funds of the marital trust. The record does not reveal the rate of income earned by the general estate during the years in question. The record does show that these earnings were considerably less than 6% per annum, compounded annually. Any payment by the executor from the general estate to the marital trust in excess of the corpus of that trust plus income earned thereon is excessive, and, in effect, wrongfully reduces the amount of the residuary trust, contrary to the express intent of the testator.

We therefore hold that the executor must make a supplementary final accounting wherein it will present the average rate of income earned by the general estate of Thomas A. Cuneo for each year from 1961 through 1973. That rate of income for each year shall be applied to the $215,696.26 marital trust fund from the last day of January 1961, when the amount of the marital trust was determined, through December 31, 1973, when the last payment of the marital trust fund was made to Mrs. Reed, compounded annually. Earnings will not be computed on each of the partial payments made to Mrs. Reed after the date of each payment. When those computations are made, thereby determining the amount that was due Mrs. Reed from the corpus and earnings of the marital trust, that amount will be subtracted from the $366,343.89 paid to Mrs. Reed. The probate court is directed to enter a judgment against Martha Cuneo Reed and the executor bank in favor of the estate of Thomas A. Cuneo for the resulting difference, plus interest.

The first partial accounting made by the executor shows several payments to doctors, hospital, nurses, and Mrs. Reed for the support and maintenance of Zadie S. Cuneo prior to her death on November 11, 1960, and after the death of Thomas A. Cuneo on September 30, 1959.

Zadie S. Cuneo took under the will of Thomas A. Cuneo. That will set up a marital trust and charged that trust, income and corpus, for whatever amounts were needed for the maintenance and care of Zadie S. Cuneo. We acknowledge that these payments for her support were made by the executor before the marital trust could have been set up. We do not fault the executor for making the payments out of the general estate. We do fault the executor and Mrs. Reed for failing to credit the general estate for the payments when the distribution of the marital trust was made to Mrs. Reed.

All monies spent by the executor out of the funds of the general estate for the maintenance of Zadie S. Cuneo, after the death of Thomas A. Cuneo, are chargeable to the marital trust, plus interest from the dates of payment.

We fail to find an accounting of payments due Zadie S. Cuneo of the income from the marital trust during the time that she survived her husband. If these payments were made from the general estate, they too will be included in the amounts spent for the maintenance of Zadie S. Cu-neo and must be refunded to the estate of Thomas A. Cuneo.

In that the funds representing the marital trust have been paid to Mrs. Reed, all amounts found to be refundable to the general estate out of the marital trust are owed by Mrs. Reed. Judgment for those amounts, as heretofore noted, shall be entered against Mrs. Reed and the executor bank. The bank, however, will be given judgment over against Mrs. Reed for any amount it pays on the judgment.

In determining the amount due and for which judgment shall be given, interest will be figured at the rate of 6% per annum, simple interest, from December 31, 1973, the date of the last payment of the marital trust as received by Mrs. Reed. We use this date because the payments exceed the amount due at some date between December 31, 1968, date of first payment of marital trust fund, and the date of the last payment. We deem it unnecessary to require so detailed an accounting as to establish that date.

Interest will be allowed on each payment made for the support of Zadie S. Cuneo from the last day of January, 1961, the date the marital trust was determined, at the rate of 6% per annum, simple interest. Pri- or to that date the executor was under no duty to set up the marital trust and make payments therefrom.

In the awards of simple interest as heretofore made, we are mindful that interest is not chargeable against an executor as a matter of course. Turney v. Williams (1834) 15 Tenn. 172, 213. We do not find that the executor kept the funds of the estate for its own use. We do hold, however, that the executor did breach its trust in the manner by which it overcharged the general estate by wrongful payments of interest into the marital trust and by failing to charge the marital trust with payments made for the maintenance of Zadie S. Cuneo. There having been a breach of trust, the executor is chargeable with simple interest. Cannon v. Apperson (1885) 82 Tenn. 553, 586. As heretofore noted, we also hold that Mrs. Reed did knowingly and intentionally accept from the general estate more than that to which she was entitled, contrary to the express intent of the testator. She also is liable for simple interest as herein set out. Taylor v. McDaniel (1871) 51 Tenn. 545.

Mrs. Reed argues that the executor owes her interest on the marital trust from the time the amount of the trust was determined in January 1961. In December 1961, Mrs. Reed filed a lawsuit, Reed v. Robilio, in federal court wherein she claimed that the sale of the testator’s interest in the partnership of Robilio & Cuneo was induced by the fraud of the purchasers and for an inadequate consideration. That lawsuit was not terminated until a judgment of the district court was affirmed by the Court of Appeals on September 17, 1968, 6 Cir., 400 F.2d 730. The executor cannot be faulted for not distributing the marital trust during the pendency of that lawsuit. The first partial payment of the marital trust was made to Mrs. Reed on December 31, 1968. The probate judge did not find sufficient proof to justify interest against the executor, and we hold that the evidence does not preponderate against that conclusion. Mrs. Reed’s claim for interest against the executor is accordingly denied.

In the lawsuit of In Re Estate of Cuneo (1971) 63 Tenn.App. 507, 475 S.W.2d 672, this Court held that the executor was not entitled to charge the estate of Thomas A. Cuneo for legal expenses it incurred in the federal lawsuit of Reed v. Robilio. The parties agree that the executor has refunded those expenses in the amount of $17,-817.32. We hold that the executor is liable to the estate of Thomas A. Cuneo for simple interest at the rate of 6% per annum on each expenditure made for the disallowed legal expenses from the date of each expenditure to the date of refund into the estate. The probate court, on remand, is directed to enter judgment accordingly with said judgment bearing interest at 8% per annum.

IV.

Mrs. Reed again attacks the executor fee as allowed the executor and affirmed by this Court in the unreported opinion of Reed v. Union Planters National Bank, filed July 6, 1973, certiorari denied November 5, 1973. That lawsuit is res ad-judícala on the issue of the amount of executor fee allowed. Errors made by the executor in distributing assets will not deprive it of its fee when those errors are corrected as herein provided.

We agree with the probate court that there is no need for an independent audit of this estate at the cost of the executor. The supplementary final accounting herein ordered can be performed by the executor in such manner as to be reviewed by any interested party and ruled on by the probate court. The petition for an independent audit is denied.

V.

Some discussion has been raised that the probate court has no authority to order a refund of distributions made by the executor. That argument is based upon the proposition that once a settlement has been made according to law it cannot be attacked except by bill in equity, and the burden rests upon the party contesting the settlement. Vaccaro v. Cicalla (1890) 89 Tenn. 63, 14 S.W. 43; Alvis v. Oglesby (1889) 87 Tenn. 172, 10 S.W. 313; Leach v. Cowan (1911) 125 Tenn. 182, 140 S.W. 1070; Nashville & American Trust Co. v. Baxter et al. (Tenn.1937) 171 Tenn. 494, 105 S.W.2d 108.

In the present lawsuit we do not have a complete settlement by the executor. The nine partial accountings were never confirmed by the probate judge. The procedure for taking an accounting of an executor clearly contemplates that the accounting is not complete until it is confirmed by the court. T.C.A. §§ 30-1101 through 30-1118. The only accounting presented to the probate judge was the tenth and final accounting to which exceptions were filed as allowed by T.C.A. § 30-1108. The probate judge did confirm that accounting along with the nine partial accountings, but this appeal resulted. The accountings are therefore not final.

On this appeal, we do not give to the accountings as confirmed by the probate court in this lawsuit the status of being prima facie evidence in favor of the accounting party as allowed by T.C.A. § 30-1111 and T.C.A. § 24-504. Rather, we review this lawsuit on appeal under the rules announced in T.C.A. § 27-303. See Griffith’s Estate v. Griffith (1969) 61 Tenn.App. 72, 452 S.W.2d 895.

We conclude that where a distribution has been made under a partial or final accounting which has not been confirmed by the probate judge, the probate court may, before confirming that accounting, order the distribution be refunded to the estate, with interest. To hold otherwise would totally impede the authority of the probate court to preside over the administration of estates. It would be unconscionable to allow Martha Cuneo Reed to retain these amounts wrongfully paid to her, with full knowledge on her part that, contrary to the intent of the testator, she was receiving more than that to which she was entitled.

This lawsuit is remanded to the probate court for an order directing the executor to file a supplementary final accounting covering the amounts herein found to be due the estate of Thomas A. Cuneo from the complainant, Mrs. Reed. Upon the determination of those amounts, with interest as heretofore noted, the probate court will enter judgment therefor against Martha Cu-neo Reed and the executor bank, with judgment over in favor of the bank against Mrs. Reed for any amount of the judgment paid by the bank. Should Mrs. Reed unreasonably delay payment of the judgment as entered, the bank may petition the probate court for permission to pay the judgment and have judgment entered in its favor against Mrs. Reed in the amount so paid, plus interest at eight per cent.

Judgment shall be entered against the executor bank in the amount of interest found to be due on the $17,817.32 wrongfully paid for litigation expenses and refunded to the estate.

After the judgments herein ordered have been paid, the probate court may enter its order of fully administered. All assignments of error not herein covered are overruled.

The cost in this Court is adjudged one-half against Martha Cuneo Reed and one-half against the bank.

NEARN, J. (concurs).

QUICK, Special Judge (concurs).

ON APPELLANT’S PETITIONS TO REHEAR

This Court filed its Opinion in this cause on May 18, 1977. On June 3, 1977 the executor filed a Petition for Instructions and prayed for an order of this Court directing it to withhold further monthly payments of $1,000 per month to the beneficiary until such time as it could be determined what amount the beneficiary owed to the estate. The amounts withheld are to be credited against the amount owing the estate by the beneficiary. Treating the Petition for Instructions as a Petition to Rehear, this Court entered an Order on June 20,1977, granting the relief prayed by the executor.

In the meantime the appellant-beneficiary filed a Petition to Rehear on June 6, 1977, wherein she claims that this Court wrongfully exercised original jurisdiction wherein it was found that the appellant-beneficiary had knowingly received more money from the residuary trust set up in the will than that to which she was entitled.

On June 24, 1977, the appellant-beneficiary filed a Petition to Rehear the June 20, 1977 Order of this Court on the ground that this Court had no jurisdiction to entertain and act upon the Petition for Instructions filed by the executor.

There is also in the record a written instrument headed “Motion to Dismiss, or, In the Alternative for Relief.” This instrument raises no question not heretofore considered by the Court or covered by the appellant’s two petitions to rehear. The motion is overruled.

On July 5, 1977, the executor filed its response to the two petitions to rehear filed by the appellant-beneficiary, whereupon the clerk of this Court forwarded to the Judges the two petitions to rehear filed by the beneficiary and the executor’s reply thereto.

Neither party complied with Rule 22 of this Court which reads in pertinent part as follows:

Petitions for rehearing and for other or additional findings of fact in any ease must be filed within ten days after the opinion of the court is filed.

We do, however, waive that Rule for each party, and we will now consider the two petitions for rehearing filed by the appellant-beneficiary.

As pointed out in the Opinion of this Court, this review was de novo upon the record of the trial court. This Court has jurisdiction to correct any error apparent upon the face of an accounting submitted by an executor. If this Court can from the record correct the accounting, we may do so. If this Court deems it necessary to remand to the probate court for that court to correct the accounting, that course may be ordered. In the case at bar we chose the latter course. The appellant’s petition to rehear, filed June 6, 1977, is overruled.

The second petition to rehear claims that this Court had no jurisdiction to enter an ex parte order allowing the executor to withhold the monthly payments otherwise due the beneficiary, pending further orders of the courts as to the amount the beneficiary has been overpaid from the estate of the deceased. The only reason the order of June 20, 1977 was entered ex parte is because the beneficiary did not for sixteen days respond to the petition filed by the executor, neither did the beneficiary seek additional time nor so much as make inquiry about the matter. The relief sought by the executor in its June 3, 1977 petition was the type relief that demanded prompt consideration by the Court. We deemed sound discretion would not permit further delay on the part of this Court, even though the beneficiary appeared to be disinterested in the matter.

Where, as here, we have found both the executor and the beneficiary liable to the estate for some amount, with judgment over in favor of the executor against the beneficiary for any amount it has to pay, it would be exceedingly strange that we could not permit the executor to withhold monthly payments otherwise due the beneficiary until the amount due the estate is determined. The argument that we have thereby thwarted the intent of the testator is rather ridiculous. In carrying out the intent of the testator, we held that the executor has overpaid the beneficiary and that the beneficiary has knowingly accepted more money than that to which she was entitled. Until that matter is cleared up, the executor should not pay over to the beneficiary any additional amounts. The appellant’s petition to rehear, filed June 24, 1977, is overruled.1

NEARN, J. (concurs).

QUICK, Special Judge (concurs).

      . The June 20, 1977 Order of the Court of Appeals was superseded by a Memorandum Opinion filed October 11, 1977, by the Supreme Court of Tennessee wherein that Court granted Martha Cuneo Reed’s Petition for Writ of Mandamus, and ordered that the $1,000 per month distribution to her by the Union Planters National Bank, Trustee, be resumed, upon her execution and delivery to the Probate Court at Memphis a good and sufficient bond making certain the repayment of the amounts so distributed, as may be legally required.


author: BYERS, Judge.

text:
    McArthur MARSH, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Sept. 15, 1977.
    Certiorari Denied by Supreme Court Dec. 12, 1977.

      Ed Lane, Chattanooga, Tenn., for appellant.
    Brooks McLemore, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Tenn., Gary D. Gerbitz, Dist. Atty. Gen., Jerry S. Sloan and Larry Campbell, Asst. Dist. Attys. Gen., Chattanooga, Tenn., for appellee.
   OPINION

BYERS, Judge.

The Appellant was convicted of the burglary of an automobile for which the jury fixed the punishment at not less than three (3) years nor more than six (6) years and he was also found to be an habitual criminal and was sentenced to life imprisonment.

The Appellant says the in-court identification of him was based on an improper lineup and was not therefore admissible; that the State failed to furnish the names of witnesses present when oral statements were made by the Appellant as required by T.C.A. § 40-2441; that the trial court should have instructed the jury that one convicted of being an habitual criminal could not be paroled or have the sentence suspended; that T.C.A. § 40-2801 et seq., the Habitual Criminal Act, is unconstitutional because it is arbitrarily and capriciously applied; and, he insists that the evidence preponderates against the verdict of the jury.

On February 10, 1976, Steve Beam and his wife, Helen Beam, drove to the Radio Shack located in the Eastgate Shopping Center in Hamilton County. The purpose of the trip was to purchase a resistor, which is a device to eliminate automobile alternator noise on citizen band radios. Beam had installed a CB radio on his vehicle just prior to going to the shopping center. He and his wife entered the Radio Shack and purchased a resistor. As they were returning to their vehicle, they observed someone inside their car. The car had been locked by them before they entered the store. Steve Beam approached the vehicle on the driver’s side while his wife approached the vehicle on the passenger’s side. They observed a black man inside the car removing the CB radio. The man got out of the Beams’ vehicle with the radio in his possession, got into a car parked beside the Beam vehicle and drove away. Mrs. Beam wrote down the license number of the vehicle which the man entered and she and her husband returned to the Radio Shack to call the police. There is some confusion whether Mrs. Beam or Mr. Beam talked to the police on the telephone. However, the police received a call and were given a description of the man whom the Beams saw take the radio and a description of the vehicle in which the man drove away. Some 30 or 40 minutes after the police arrived at the shopping center and completed their investigation at the scene, Steve Beam commenced to drive around the streets of Chattanooga in an effort to locate the vehicle he had described to the police. Beam succeeded in this quest when he saw the vehicle drive up to a pool hall on 9th Street. The Appellant entered the pool hall and Beam called the police to report this occurrence. The police came to the pool hall and Beam identified the Appellant as the person who had broken into his vehicle. The Appellant told the officer, in response to a question, he had been driving the car. The police had him drive his car to the police station. After the Appellant was taken to the police station, Mrs. Beam came there and saw the Appellant sitting in a room with a white officer and identified the Appellant as the person whom she had seen in the Beam vehicle at the shopping center.

The issue of the in-court identification and the claim that the evidence preponderates against the verdict are inextricably mingled because the preponderance of the evidence issue depends upon whether there was a proper and sufficient identification of the Appellant as the perpetrator of this crime.

The identification of the Appellant by Mr. Beam at the pool hall does not constitute an impermissible lineup so as to make the identification unduly suggestive or give rise to any substantial likelihood of irrepressible misidentification. Mr. Beam’s identification of the Appellant was based upon his observation of him at the time the crime was being committed. Further, when he saw the Appellant alight from the vehicle in front of the pool hall he recognized him as the same person. When the police arrived at the pool hall to continue their investigation, the identification of the Appellant by Beam was a reaffirmation of what he had already observed. There was no lineup conducted. There is no showing that the identification by Beam at the pool hall was rigged or planned. The in-court identification of the Appellant by Steve Beam was not improper as this was based on his observation of the Appellant at the time of the commission of the crime and his observation of him at the pool hall shortly thereafter when he located the Appellant on his own initiative. Rippy v. State, 550 S.W.2d 636 (Tenn.1977). See also, Kelley v. State, 478 S.W.2d 73 (Tenn.Crim.App.1972).

The viewing of the Appellant at the jail by Helen Beam is a significantly different set of circumstances. As set out in the resumé of the facts at the beginning of the opinion, Mrs. Beam was taken to the station house where she viewed the Appellant, a black man, who was in a room with only a white police officer. One-to-one lineups are condemned and their use is highly suspect. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968). In the case of Donnie Russell Bradford v. State, Court of Criminal Appeals No. 47, filed February 18, 1977 at Knoxville, this Court in an opinion by Judge Daughtrey held that in the absence of imperative circumstances, the presenting of a single suspect to a witness is proscribed. In this case, the reason for not conducting a lineup was because not enough black people could be found to form a lineup. We find this not to be an imperative circumstance. We are reasonably certain a sufficient number of black people are present in Chattanooga to supply a valid lineup. The showing of the Appellant to Mrs. Beam was improper. However, the proof also shows that Mrs. Beam’s in-court identification was based upon her observation at the scene of the crime and not on the improper showup at the police station. Thus, her in-court identification was properly admitted. Bradford, supra.

In the trial of this case, no issue was raised questioning whether the burglary of the Beam automobile occurred. The automobile was entered and the only issue was whether the Appellant was the perpetrator of the crime. This question of fact was for the jury to determine. The jury determined this adversely to the Appellant. The evidence supports the finding of the jury. The Appellant has failed to show that the evidence preponderates against the verdict. Webster v. State, 425 S.W.2d 799 (Tenn.Crim.App.1967).

One of the investigating officers testified that the Appellant said he had been driving the vehicle which was identified by Beam as the one in which the perpetrator of the crime left the Eastgate Shopping Center. The Appellant says the introduction of this statement was contrary to the provisions of T.C.A. § 40-2441.

The Appellant had made a motion requesting copies of any written statements and the substance of any oral statements along with the names of witnesses to whom, or in whose presence, any oral statements had been made. The Appellant’s counsel had not been advised of those statements.

The statement by the Appellant connecting himself with the vehicle was an integral part of the identification evidence for the jury to consider and it was, as we view the evidence, a statement against interest. The provisions of T.C.A. § 40-2441 are mandatory. The failure to comply with the terms of the statute renders any incul-patory statement inadmissible.

The issue concerning the introduction of the statement thus becomes whether the introduction of the statement was harmless error. We are of the opinion that it was.

Steve Beam testified without objection concerning a claim of ownership of the vehicle which he says the Appellant made to .the officers. The connection of the Appellant with the vehicle was already before the jury without objection. In addition, the positive identification of the Appellant by Steve and Helen Beam makes it improbable that the jury would have reached a different verdict if the statement had been excluded. O’Dear v. State, 516 S.W.2d 622 (Tenn.1974). Further, Appellant did not object to the testimony of the officer at the time it was given. After the State had rested, the Appellant then moved for a mistrial because of the testimony. Counsel did not request the trial court to instruct the jury to disregard the testimony. The failure of the Appellant to object to the evidence when offered, or to request the trial court to withdraw the evidence from the jury’s consideration waives any objection to its admission. Crawford v. State, 4 Tenn.Cr.App. 142, 469 S.W.2d 524 (1971).

The Appellant’s complaint that the trial court refused to instruct the jury that under T.C.A. § 40-2806 — the Habitual Criminal Act — the Appellant would not be eligible for parole if found to be an habitual criminal is without merit. Whether he would be subject to parole or not would have no bearing on whether he had attained the status of being an habitual criminal. Beyond that, however, the Appellant would be eligible for parole after serving thirty (30) years. T.C.A. § 40-3613.

The Appellant says the Habitual Criminal Statute — T.C.A. § 40-2801, et seq. —is unconstitutional because it makes no provision for mitigating or aggravating circumstances and because the attorney generals may arbitrarily determine who will be prosecuted under these sections. The Appellant says the statute must meet the same criteria as death penalty statutes in order to meet constitutional muster. We do not agree with this stance. The imposition of a life sentence, although a strict punishment, can hardly be likened to the irretrievable infliction of death. The constitutionality of this statute has been affirmed by our Supreme Court in numerous cases, among the more recent is the case of Pearson v. State, 521 S.W.2d 225 (Tenn.1975).

We are of the further opinion that the claim that the statute gives the district attorney generals arbitrary authority to select those who will be prosecuted as an habitual criminal in violation of the Equal Protection Clause of the Constitution should be rejected. We are aware that many persons who qualify for prosecution under this statute are not prosecuted thereunder. However, it is irrelevant that other persons subject to being thus prosecuted, were not indicted and tried as an habitual criminal. Brown v. State, 1 Tenn.Cr.App. 462, 445 S.W.2d 669 (1969).

The judgment of the trial court is affirmed.

O’BRIEN and OLIVER, JJ., concur.