text:
    Danny SHARP, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Dec. 9, 1977.
    Ray D. Baldwin, Williamsburg, for appellant.
    Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.
   REED, Justice.

Danny Sharp, a sixteen-year-old boy, was convicted of two counts of murder and sentenced to life imprisonment on each count. He appeals. He asserts: that the Whitley Juvenile Court illegally transferred jurisdiction of his case to the circuit court; that he was subjected to double jeopardy in contravention of the United States Constitution; and that inadmissible evidence in the form of photographs was permitted to be introduced in the trial court over his objection and to his prejudice. We affirm the judgment of the circuit court.

In view of Sharp’s claim of improper transfer of jurisdiction from the juvenile court to the circuit court where he was tried as an adult, a consideration of the facts of the crime is necessary.

Mack Halcomb, fifty years of age, and his daughter Stephanie, six years of age, disappeared from their home on Monday, August 10, 1976. Their bodies were found in a ditch at a strip mine site about five miles from their residence three days later, Friday the thirteenth. Mack Halcomb had been shot six times with a .22 caliber weapon and Stephanie had been shot once with a .22 and once with a .32 caliber weapon. The bodies were covered with some slate rock.

The chief witness for the prosecution was Larry Collins, a boy near Sharp’s age, who was a participant in the crime. Larry testified that he, Danny Sharp, Donnie Barton and Randy Collins (no relation to Larry) went to Mack Halcomb’s house early in the morning of August 10, 1976, to rob him. Larry had seen Halcomb at a carnival on the preceding Monday evening. Larry said Halcomb had a large sum of money in his wallet on this occasion.

According to Larry, when he, Sharp and Barton, all about 16 or 17 years old, arrived at the Halcomb home they broke in a door and entered. Halcomb came from his room to confront them. Sharp shot him six times. When six-year-old Stephanie came from her room and then turned to flee, Sharp shot her once in the back.

Larry also testified that Sharp took the wallet from Halcomb’s pants in the bedroom. Then the three boys took the bodies of Halcomb and Stephanie and put them in Halcomb’s pickup truck and hauled them to the strip mine site. They unloaded the bodies into a ditch. Sharp shot Stephanie again, this time with a .32. He took off his underpants and placed them over her head. He took a tape player out of Halcomb’s pickup truck and threw it on the bodies. When he did so, according to Larry, he said, “You all play you some music on your way to heaven.”

James Lee was another witness for the prosecution. He said Sharp spent most of Monday with him at his home. He took Sharp home around 10:00 p. m. At about 2:45 a. m. on Tuesday morning, Sharp called him and said, “I just killed two people.” Two other witnesses testified they saw a pickup truck traveling on the road that led to the strip mine site where the bodies were found between one and two o’clock Tuesday morning. Sharp did not testify at his trial.

This court rejects Sharp’s claim that he was subjected to double jeopardy by the hearing in juvenile court followed by the trial in circuit court. The juvenile court hearing mandated by KRS 208.170 confined itself from beginning to end to a determination of whether the case should be transferred to circuit court. “The hearing held to consider the transfer of a juvenile to the circuit court shall determine if there is probable cause to believe that the offense was committed and that the child committed the offense.” KRS 208.170(2). This was not a proceeding that could possibly have resulted in adjudication of guilt or punishment. It is harmonious with, rather than in contravention of, the requirements of Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).

Having determined that probable cause existed that the offense (murder) had been committed and that Sharp, the juvenile, had committed the offense, the juvenile court then concluded that it was “in the best interest of the child (Sharp) and the community” to order a transfer to the circuit court where Sharp would be tried under the regular law governing crimes. KRS 208.170(3).

Despite Sharp’s complaint that the order of the transfer was too sparse in its recitations of the reasons for transfer, we find that every constitutional protection provided by Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) was afforded him.

Sharp was represented by employed counsel at the “probable cause” hearing and thereafter. His rights were fully explained to him. His parents were present. At Sharp’s instance, the circuit judge reviewed the action of the juvenile court in transferring its jurisdiction. The record enabled the reviewing court to make “a meaningful review.”

The statutory criteria for transfer are expressed in KRS 208.170(3). They may be summarized insofar as pertinent here as follows:

1. The seriousness of the alleged offense.
2. Whether the offense was against person or property, with greater weight being given to offenses against persons.
3. The maturity of the child as determined by his environment.
4. The child’s prior record.
5. The prospects for adequate protection of the public.
6. The likelihood of reasonable rehabilitation of the child by the use of procedures, services, and facilities currently available to the juvenile justice system.

According to the record, Sharp was the ring leader in the commission of brutal and heinous crimes against the person of an adult and the person of a child. His maturity was demonstrated by the method of the commission of the crime and the leadership he displayed. He had spent his ninth year of education at the Boy’s Camp in Middles-boro, Kentucky, because he “stole a car.” Thus, he had a prior record, and rehabilitation by the juvenile justice system had failed.

We, therefore, hold that the trial judge did not commit error when he accepted jurisdiction. Sharp received every substantive legal right to which he was entitled.

The final complaint addresses itself to the introduction of photographs of the scene of the discovery of the bodies. Sharp argues that they were inflammatory. The credibility of the testimony of Larry Collins was an element. The photographs were relevant in that regard. A photograph that is otherwise admissible does not become inadmissible simply because it is gruesome and the crime is heinous. Brown v. Commonwealth, Ky., 558 S.W.2d 599 (decided November 18, 1977).

The judgment is affirmed.

All concur.

      . The finding was that Sharp was “implicated” in the murder of the Halcombs.


source: Caselaw Access Project

author: REED, Justice.

license: Public Domain

text:
    FITE AND WARMATH CONSTRUCTION COMPANY, INC., Appellant, v. MYS CORPORATION et al., Appellees.
    Supreme Court of Kentucky.
    Dec. 9, 1977.

      G. Griffin Boyte, Warmath & Boyte, Humboldt, Tenn., Norman E. Harned, Cole, Harned & Broderick, Bowling Green, for appellant.
    Trimble, Soyars & Breathitt, Hopkins-ville, for MYS Corp., Hopkinsville Associates, and Manufacturers Hanover Trust Co.

      Milburn C. Keith, Douglas Myers, Keith, Scent, Kirkham & Walton, Hopkinsville, for MYS Corp.
    W. E. Rogers, Jr., Hopkinsville, for Planters Bank & Trust Co., Mrs. Gladys Braswell Tate, Frances Tate Rogers and W. E. Rogers, Jr., her husband, Edith Tate LaMotte and Golliday LaMotte, her husband, and Lillian Tate.
    Pollard White, Hopkinsville, for Barbara Nell Land and her husband, Myrick E. Land.
    Thorpe L. Wolford, Louisville, for Manufacturers Hanover Trust Co.
    James R. Reid, Hopkinsville, for Henderson-Moorefield Lumber Co., Inc.
    W. Edward Whitfield, Johnson & Whitfield, Hopkinsville, for Naturalite, Inc.
    Charles W. Latham and James P. Hanratty (now deceased), Hopkinsville, for Charles W. Latham d/b/a Charles W. Latham Truck Lines.
    Maubert R. Mills, Mills, Mitchell, Turner & Donan, Madisonville, for Cantrell Sheet Metal and Roofing Co.
    John Phelps & Sons, Inc., Memphis, Tenn., for Jackson Paving Co., Inc.
   REED, Justice.

The decisive issue presented by this appeal is whether the trial court was correct in enforcing a contractual agreement to arbitrate instead of applying what is generally described as the common-law rule, which regards as revocable by either party any agreement between them to arbitrate future disputes.

In November 1969, Fite and Warmath Construction Company, Inc., a Tennessee corporation, entered into a “cost-plus” contract with MYS Corporation, a Kentucky corporation wholly owned by New York residents, in which Fite agreed to serve as general contractor for MYS in the construction of a commercial shopping mall in Hop-kinsville, Kentucky. The contract, executed in New York City, was a printed standard-form agreement between owner and general contractor provided by the American Institute of Architects. It contained detailed provisions concerning the rights and duties of the contracting parties. In addition, it contained an agreement to arbitrate which read:

“7.10 ARBITRATION
“7.10.1 All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in Subpara-graph 2.2.9 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subpara-graphs 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
“7.10.2 Notice of the demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association, and a copy shall be filed with the Architect. The demand for arbitration shall be made within the time limits specified in Sub-paragraphs 2.2.10 and 2.2.11 where applicable, and in all other cases within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred, by the applicable statute of limitations.”

Thereafter, Fite commenced construction and the parties performed under the contract for about one year. On November 19, 1970, precipitated by a series of disputes between them, Fite and MYS entered into a memorandum agreement whereby they mutually agreed to terminate their contract as of 12:00 noon, Monday, November 12, 1970. Besides reciprocal pledges of cooperation to insure an orderly transfer of the project, this memorandum recited that the disputes “shall be decided in accordance with the terms of the original contract,” and that “the interpretation of the contract shall be controlled by the laws of the State of Kentucky applicable to the execution of the original contract.” (emphasis supplied).

On January 8, 1970, after withdrawing from the job site, Fite filed a mechanics and materialman’s lien against the project in the office of the Christian County Clerk.

On April 23, 1971, MYS filed a demand for arbitration with the American Arbitration Association pursuant to section 7.10 of the original contract as reconfirmed in the November 19, 1970, memorandum of agreement terminating the relationship.

In the arbitration demand, MYS alleged 15 separate contractual violations, asserting that Fite had failed to provide qualified supervisory personnel, had awarded subcontracts at higher than market prices, had purchased materials which did not meet trade standards or contract terms, had employed more workmen than were necessary, had permitted unauthorized changes from plans, and had caused unnecessary delays.

On May 6, 1971, Fite filed suit in the circuit court against MYS to enforce its lien (KRS 376.010, et seq.) in the amount of $1,084,246.58 and for general damages in amount of $3,800,000. On May 10, 1971, Fite filed its answer with the arbitration association in which it asserted that there was no necessity to arbitrate because of its pending suit in the state court; it also stated that any award by arbitrators would not be binding upon the state court.

After other procedural skirmishes were completed, the circuit court ruled that the arbitration agreement was enforceable and stayed the state court proceedings until arbitration was completed.

After extensive proceedings in which Fite and MYS fully participated, the arbitration tribunal rendered its award on December 9, 1973. This award was in favor of MYS against Fite in the sum of $326,141.42, plus interest at 6 per cent per annum from April 28, 1971. Despite Fite’s various objections to the award, including the complaint that it did not contain separate findings of fact, the circuit court entered the arbitration award as the judgment of the court. Fite appeals. We affirm the judgment of the circuit court for the reasons later stated.

I.

The trial judge held that the United States Arbitration Act of 1925 applied. Section 2 of this Act declares in pertinent part that a written provision for arbitration in “any contract evidencing a transaction involving commerce” shall be valid and irrevocable and enforceable except upon such grounds as exist at law or in equity for the revocation of any contract.

From undisputed evidentiary material, the trial judge made the following significant factual findings:

Fite is a Tennessee corporation with its principal place of business in Tennessee. MYS is a Kentucky corporation with its principal place of business in New York, New York. The supervising architects are residents of New York. The construction loan which financed the project was made by the Manufacturers Hanover Trust Company of New York, New York. Eighty-eight per cent of the subcontractors engaged in the construction project were nonresidents of Kentucky and many of the employees crossed the Kentucky-Tennessee border daily to perform work on the mall. The majority of the tenants of the mall are corporations incorporated under the laws of a state other than Kentucky and maintaining their respective principal places of business in a state other than Kentucky.

After reciting these factual findings, the trial judge stated: “The court finds as a matter of fact at the time the parties entered into the contract on November 11, 1969, in New York, New York, both parties contemplated a transaction involving interstate commerce within the meaning of the Federal Arbitration Act, Title 9, U.S.C. Sections 1 and 2.” Fite argues that the Supreme Court of the United States has recognized that the U. S. Arbitration Act is not applicable in state courts. It relies as authority upon the cases of Prima Paint Corporation v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), and Bernhardt v. Polygraph Company of America, Inc., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956).

In our view it is unnecessary to explore the problems created when the historical setting of the passage of the U. S. Arbitration Act of 1925 is considered. Suffice it to say that the Arbitration Act was passed before the decision in Erie R. Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), which mandated that federal courts in diversity cases were bound to follow state rules of decision in matters which are “substantive” or where the matter is “outcome determinative.” There is the additional consideration that in 1925 the Supreme Court interpreted the scope of what constituted interstate commerce in a much more restrictive fashion than was true by later decisions of that court.

In Bernhardt, supra, a diversity case, the Supreme Court interpreted the coverage of the U. S. Arbitration Act, particularly the stay provisions of section 3, as limited to maritime transactions and transactions in interstate commerce. After holding that the arbitration agreement in the case did not involve commerce nor affect a maritime transaction, the court decided that for purposes of the Erie doctrine arbitration was outcome determinative, thus requiring a federal court to determine the enforceability of an arbitration agreement not in interstate commerce under state law. The case did not hold, as asserted by Fite, that the U. S. Arbitration Act was not applicable in state courts.

Two years after the decision in Bernhardt, the Sixth Circuit held in American Airlines, Inc. v. Louisville and Jefferson County Air Board, 269 F.2d 811, that section 2 of the U. S. Arbitration Act created substantive law enacted in the exercise of Congress’ plenary power over interstate commerce and state law must give way. Then in 1959, the Second Circuit decided the case of Robert Lawrence Co. v. Devon-shire Fabrics, Inc., 271 F.2d 402, wherein the court held that the Federal Arbitration Act was a declaration of national law equally applicable in state or federal courts.

The Supreme Court did not address itself to the problem again until 1967 in Prima Paint Corporation v. Flood and Conklin (1967), 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed. 1270. Here, the Supreme Court did not base its decision on the Lawrence opinion but instead held that the Federal Arbitration Act was based upon the incontestable federal foundations of control over interstate commerce and over admiralty. As to the effect of the decision in Prima Paint, we are more persuaded by the views expressed in the opinion of the Court of Appeals of New York in Matter of Rederi, 25 N.Y.2d 576, 307 N.Y.S.2d 660, 255 N.E.2d 774 (1970), than by the trial court opinion in Pullman, Inc. v. Phoenix Steel Corp., Del., 304 A.2d 334 (1973).

The substance of the holding in Re-deri is that what was said by the Supreme Court in Prima Paint leads to the inevitable conclusion that the U. S. Arbitration Act has to be applied in state courts as well as in the federal courts where the suit involves a contract evidencing a transaction in interstate commerce regardless of the forum in which it is brought. According to Rederi, if the result were otherwise the nub of the policy underlying Erie R. Company v. Tompkins would be defeated. The Erie rule was designed to prevent a result that for the same transaction the accident of a suit by a nonresident litigant in a federal court instead of in a state court a block away should lead to a substantially different result. The Court of Appeals of New York said in Rederi that this rationale would apply even if the Supremacy Clause did not require it to conform to and apply the provisions of the federal statute. Any other conclusion would place the court’s stamp of approval on a particularly offensive form of forum-shopping.

We are fortified in our conclusion by a well-reasoned opinion of the Court of Appeals of Indiana in Pathman Const. Co. v. Knox County Hospital Ass’n, Ind.App., 326 N.E.2d 844 (1975), which specifically rejects the opinion in the Delaware case of Pullman, Inc., supra. We, therefore, hold that the provisions of the U. S. Arbitration Act of 1925 apply to actions brought in the courts of this state where the purpose of the action is to enforce voluntary arbitration agreements in contracts evidencing transactions in interstate commerce.

II.

Having determined that the Federal Arbitration Act applies in contracts involving interstate commerce, we are required to determine whether the contract in this case involves interstate commerce. The United States Supreme Court, both in Bernhardt, supra, and Prima Paint, supra, adopted a broad definition of the sort of transaction which would constitute a contract evidencing a transaction in interstate commerce. Fite advances the simplistic argument that the contract in the ease before us is one for construction in a single county in Kentucky and that the transaction should be characterized as “construction not commerce.” We agree with MYS that a construction contract, as any other kind of contract, may involve interstate commerce.

In Metro Industrial Painting Corp. v. Terminal Const. Co., 287 F.2d 382 (2 Cir. 1961), the court held that a subcontract to perform painting work made between residents of New York and residents of Connecticut and New Jersey who did painting work on a project within the State of Florida was a transaction involving interstate commerce within the meaning of the U. S. Arbitration Act. The court pointed out that 20 per cent of the work force at the Florida site, as well as a substantial number of supervisory personnel, were transported from New York City to Florida; that the materials used by the subcontractors’ employees were purchased from other states as were materials used by other subcontractors, many of whom were from out of state. In Pathmam, supra, the court pointed out that the parties to the original contract were located in separate states and that it was a fair conclusion that at least some interstate activity was contemplated. The court also pointed to the fact that substantial amounts of materials continued to travel to the job site from out of the state, some of which were manufactured particularly for the construction project. Additionally, the court noted that certain employees crossed state lines in order to work at the job site. The project was for the building and remodeling of a hospital. The contract was for $3,767,000. The dollar value of the out-of-state contracts totaled over $700,000. That court held the hospital itself was not involved in interstate commerce, but the contract in question involved a transaction involving interstate commerce. The cases cited by Fite generally involved instances where the applicability of the federal act was not in issue or situations where its applicability was questionable or nonexistent.

Under the Fite contract, the total gross charges made by the nonresident subcontractors and vendors amounted to $3,880,252.42. We are impressed by the specific findings of fact made by the trial judge. They are not attacked as erroneous. They squarely support his conclusion that this contract evidenced a transaction in interstate commerce. We, therefore, hold that the trial judge properly applied the mandates of the U. S. Arbitration Act in this case.

III.

The effect of our decision makes enforceable a contract to arbitrate a future dispute where applicable federal law so provides. We do not consider, however, that we are displacing a viable public policy of this state. The process of arbitration has had an interesting history in this state as is thoroughly considered in an article: Goldman, A Proposed Arbitration Act for Kentucky, 22 ARB. J., 193, 221 (1967). The device of arbitration has been specifically approved by our State Constitution since 1799. Our case law has stated that it is the policy to favor the settlement of disputes by means of arbitration. The legislature has adopted an arbitration statute, Chapter 417 of the Kentucky Revised Statutes. This Act empowers the parties to voluntarily submit an existing dispute to the process of arbitration. The spectre remains, however, of the applicability of the common-law rule which as a matter of judge-made law prohibits the enforceability of agreements to arbitrate future disputes based on the questionable justification that such agreements “oust the courts of jurisdiction.” This rationale has not escaped without serious criticism. See W. Sturges, Commercial Arbitration and Awards, Sec. 15 (1930). For a helpful recent discussion also see Gilbert, Choice of Forum Clauses in International and Interstate Contracts, 65 Ky. L.J. 1, 15 (1976).

In 1974 the Supreme Court of the United States in the case of Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 2457, 41 L.Ed.2d 270 (1974), said:

“An agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum-selection clause that posits not only the situs of the suit but also the procedure to be used in resolving the dispute. The invalidation of such an agreement in the case before us would not only allow the respondent to repudiate its solemn promise but would, as well, reflect a ‘parochial concept that all disputes must be resolved, under our laws and in our courts.’ ” (citation omitted).

Here, the Supreme Court appears to place arbitration clauses in a subcategory of choice-of-forum provisions. Consider then the position of the American Law Institute in the Restatement (2d) of Conflict of Law. Section 80 states: “The parties’ agreement as to the place of the action cannot oust a state of judicial jurisdiction, but such an agreement will be given effect unless it is unfair or unreasonable.”

We are not concerned here with an adhesion contract or one where the bargaining power of the parties is disparate. We deal rather with an agreement voluntarily entered into by sophisticated and knowledgeable businessmen concerning a financial transaction of considerable magnitude. In such situation, we find no real support for the proposition that one of the parties is free to repudiate his promise. We are convinced that the application of federal law in this instance does not displace a fundamental public policy of this state.

IV.

Fite complains because the arbitrators made no findings of fact nor did they specify the basis of their decision. According to Fite, this leaves it in an untenable position so far as the claims of subcontractors are concerned. Arbitrators need not disclose the facts or reasons behind their award. Bernhardt, supra, at footnote 4. Their award may be made without explanation of their reasons and without a complete record of their proceedings. Wilko v. Swan, 346 U.S. 427, 435-438, 74 S.Ct. 182, 186, 188, 98 L.Ed. 168 (1953). Kentucky law is in accord. See Smith v. Hillerich and Bradshy Company, Ky., 253 S.W.2d 629 (1953).

The sole judgment the trial court has entered is the one adopting the arbitration award as the judgment of the court. This judgment was made final and appeala-ble under CR 54.02. The other parties to the lawsuit were not parties to the arbitration proceedings, nor did Fite and MYS in their agreement undertake to bind third parties by the arbitration process. The courthouse doors remain open to Fite to litigate its rights and liabilities apart from its disputes with MYS. We are unable to agree with Fite that it has been denied due process.

The judgment of the circuit court from which this appeal was taken is affirmed.

All concur.

      . 9 U.S.C.A. Sec. 1, et seq.

      . Our present state Constitution provides at section 250: “It shall be the duty of the General Assembly to enact such laws as shall be necessary and proper to decide differences by arbitrators, the arbitrators to be appointed by the parties who may choose that summary mode of adjustment.”


author: JONES, Justice.

text:
    Donald Ray POLSGROVE, Appellant, v. KENTUCKY BUREAU OF CORRECTIONS, Appellee.
    Supreme Court of Kentucky.
    Dec. 9, 1977.
    David E. Murrell, Deputy Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., George Geoghegan, III, Asst. Atty. Gen.,.Frankfort, for appellee.
   JONES, Justice.

Donald Ray Polsgrove filed a petition for a declaratory judgment in Franklin Circuit Court. He requested that the Bureau of Corrections be directed to award him full “good-time” credit for the time spent in the county jail prior to his conviction and sentence. The trial court granted the Bureau’s motion to dismiss Polsgrove's petition. The Court of Appeals affirmed the order of the trial court in an opinion published at 549 S.W.2d 834 (1977). The Court of Appeals based its decision upon the grounds that: (1) Polsgrove sought the remedy by means of a declaratory judgment and, (2) habeas corpus is the exclusive remedy for Pols-grove to obtain the relief sought. This court granted discretionary review.

The relevant facts to the actual controversy reveal that Polsgrove was arrested on November 19,1974 and placed in the Jefferson County Jail. On September 26, 1975, the Jefferson Circuit Court sentenced Pols-grove to a five-year prison term. Polsgrove was transferred to the Kentucky State Reformatory to begin serving his sentence on October 2, 1975. Because Polsgrove was unable to post bond he was lodged in the Jefferson County Jail from November 19, 1974, until October 2, 1975, a total of 317 days. The trial court credited Polsgrove’s maximum sentence with the 317 days he had been in custody prior to the commencement of his sentence. However, the Bureau of Corrections credited Polsgrove with 230 days “adjusted jail credit time.” Pols-grove’s argument hinges upon the interpretation of KRS 197.045(1) and KRS 532.-120(3).

KRS 197.045(1) provides in part:

“Any person convicted and sentenced to a state penal institution may receive a credit on his sentence of not exceeding ten (10) days for each month served, except as outlined in subsection (3) of this section, to be determined by the bureau from the conduct of the prisoner. . .”

KRS 532.120(3) provides:

“Time spent in custody prior to the commencement of a sentence as a result of the charge that culminated in the sentence shall be credited by the court imposing sentence toward service of the maximum term of imprisonment. If the sentence is to an indeterminate term of imprisonment, the time spent in custody prior to the commencement of such service shall be considered for all purposes as time served in prison.”

The commentary to KRS 532.120(3):

“Subsection (3) requires that an offender be given credit for all time spent in custody prior to the commencement of his term of imprisonment. The provision imposes a duty on the trial judge to see that this credit is properly given. This is the surest way to guarantee against oversight of the credit. The second part of the subsection intends to extend the applicability of the credit to such matters as ‘good time credit’ on an indeterminate sentence and parole eligibility.” (Emphasis added).

Polsgrove is correct in the interpretation of the foregoing sections which require that he receive “good-time credit" for the 317 days spent in custody prior to the commencement of his sentence. This court is of the opinion that this result is mandated by the clear language of KRS 532.120(3), which provides that pre-institutional custody time is to be counted for all purposes as “time served in prison.” This court finds no difficulty in construing KRS 532.120(3) compatible with KRS 197.045(1).

Polsgrove is not seeking immediate release, but a reduction of his sentence. In this jurisdiction it has been held as far back as “the memory of man runneth not to the contrary” that in criminal cases a writ of habeas corpus has been esteemed the best and only sufficient defense of personal freedom, having for its object the speedy release by judicial decree of persons who are illegally restrained of their liberty. Under our present statute dealing with habeas corpus KRS 419.020 provides:

“The writ of habeas corpus shall be issued upon petition on behalf of anyone showing by affidavit probable cause that he is being detained without lawful authority or is being imprisoned when by law he is entitled to bail. The writ may be issued by any circuit judge on any day or any time and his power to issue such writs shall be coexistive with the Commonwealth.”

Therefore, the decision of the Court of Appeals was in error by its holding that the dismissal of Polsgrove’s petition was proper because it was brought in an “improper fashion,” and that habeas corpus relief was exclusive.

This court is of the view that the declaratory relief sought by Polsgrove in the Franklin Circuit Court was appropriate.

“In any action in a court of record of this commonwealth having general jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, either alone or with other relief; and the court may make a binding declaration of rights, whether or not consequential relief is or could be asked.” KRS 418.040.

This court notes that the opinion of the Court of Appeals for good measure attempts to set out the proper guidelines in the event that Polsgrove filed a petition “in proper fashion” (habeas corpus).

Under this court’s holding it is unnecessary for Polsgrove to seek such a writ. He has pursued the proper course. The Bureau of Corrections is charged with the duty of determining the conduct of a prisoner prior to the commencement of his sentence. KRS 532.050.

The ruling of the Court of Appeals is reversed with directions that this cause be remanded to the Franklin Circuit Court with directions to enter a declaratory judgment consistent herewith.

The judgment is reversed.

All concur.


author: WILHOIT, Judge.

text:
    Frances RICHARDSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 22, 1977.
    Rehearing Denied Sept. 9, 1977.
    Discretionary Review Denied Jan. 24, 1978.
    Jack Emory Farley, Public Defender, Anna H. Isaacs, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appel-lee.
    Before VANCE, WILHOIT and WIN-TERSHEIMER, JJ.
   WILHOIT, Judge.

Frances Richardson was indicted for murder as proscribed by KRS 507.020. At trial by jury the defendant was convicted of reckless homicide, a lesser included offense authorized by the instructions given by the court. The court imposed sentence of 3 years, in accord with the verdict of the jury. Defendant appeals asserting the following 2 grounds for reversal:

1. The trial court erred in denying the defendant’s motion for a directed verdict at the close of the evidence;
2. The trial court erred in denying defendant’s motion for a mistrial after a defense witness was cross-examined in violation of Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970).

At approximately 1:00 a. m. on February 4, 1975, appellant was awakened by someone pounding on the door of her home. The person at the door identified herself as Del-ena Richardson, appellant’s daughter-in-law. Some 4 days prior to February 4, 1975, Delena and appellant were involved in a fight and Delena had to be pulled away from appellant. Delena stated at that time that she was going to “stomp [appellant] into the ground.” When Delena came to appellant’s home on February 4, Delena told appellant: “Goddamn you, I didn’t come after Gary; I came after you: I’ve come back to finish the job that they stopped me from doing.” Appellant told Delena to leave or she would have to shoot her. Delena responded: “You had better make it good because when I get in there I’ll make you eat the Goddamn gun.” Appellant fired shots through the door of her home until the banging on the door stopped. One of the shots struck and killed Delena.

At the close of all the evidence, appellant moved for a directed verdict of acquittal. The trial court denied the motion. The court instructed the jury on murder, first-degree manslaughter, second-degree manslaughter, and reckless homicide. The following self-protection instruction, limited to murder and first-degree manslaughter, was given:

If at the time the defendant shot Dele-na Richardson as mentioned in Instruction 1 or 2 she believed that Delena Richardson was then and there about to use physical force upon her, she was privileged to use such physical force against Delena Richardson as she believed to be necessary in order to protect herself from it, but including the right to use deadly physical force in so doing only if she believed it was necessary in order to protect herself from death or serious physical injury at the hands of Delena Richardson.

Appellant was convicted of reckless homicide.

Appellant now argues that the trial court erred in denying the motion for a directed verdict since the court failed to consider the facts in view of KRS 503.-080(2)(b), the ‘protection of property’ defense. The circumstances of the shooting of Delena, according to appellant, establish the justification described in that section of the statute and the trial court was, therefore, bound to direct a verdict of acquittal. There was no request at trial for an instruction based on KRS 503.080(2)(b) and appellant does not allege any error as regards the instructions that were given. The grounds offered by the defendant to support the motion for directed verdict were that the Commonwealth failed to show any intent to kill, that there was no showing of malice aforethought, that there was no evidence that a bullet from defendant’s gun killed Delena, and that defendant was reasonable in using deadly force to protect herself and her child. There was no mention of the protection of property defense and, therefore, defendant is precluded from arguing on appeal that the trial court erred in failing to direct a verdict on that ground. RCr 8.14.

The appellant also claims error in the trial court’s failure to declare a mistrial as requested upon the alleged occurrence of a Cotton violation. During the cross-examination of Hubert Richardson, appellant’s husband, the Commonwealth’s attorney asked him if he were not having financial difficulties and then asked: “You were giving out cold checks there and got put in jail, didn’t you?” Before the witness made any response, the defendant’s attorney objected and moved for a mistrial. The objection was overruled. As conceded by the Commonwealth, this questioning was improper, violating the rule established in Cotton, supra. Upon a consideration of the whole case, however, we do not believe there is a substantial possibility that the result would have been any different had the Cotton violation not occurred. RCr 9.24; Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969). The error is, therefore, harmless.

The judgment of the trial court is affirmed.

ALL CONCUR.


author: HAYES, Judge.

text:
    Henry C. TURNER, Appellant, v. Glenn REYNOLDS and the Pattie A. Clay Infirmary Association at Richmond, Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Aug. 12, 1977.
    Rehearing Denied Sept. 23, 1977.
    Discretionary Review Denied Jan. 24, 1978.
    Julius E. Rather, Lexington, for appellant.
    W. R. Patterson, Jr., Landrum, Patterson & Dickey, Lexington, for Glenn Reynolds.
    R. David Clark, Walter A. Ward, Boehl, Stopher, Graves & Deindoerfer, Lexington, for Pattie A. Clay Infirmary.
    Before HAYES, HOWARD and WIL-HOIT, JJ.
   HAYES, Judge.

By order of the Supreme Court dated January 31, 1977, this case was transferred to this court. The appeal arises out of a summary judgment entered in the Madison Circuit Court, which denied appellant’s claim for alleged medical malpractice damages. Appellant, Henry Turner, contends that the trial court erred in ruling that expert evidence was necessary to substantiate his claim.

On November 22, 1970, appellant was assaulted with a knife. As a result of this altercation, appellant sustained cuts on his head. The police took appellant to Pattie A. Clay Infirmary where he was treated by appellee, Glenn Reynolds. Dr. Reynolds examined appellant and found three lacerations which he cleansed and sutured. Although appellant testified that he informed Dr. Reynolds that he had been stabbed, no x-rays were taken of appellant’s head, and he was released after a thirty minute observation period.

Approximately one year later, appellant was struck by a truck. It was necessary that x-rays be taken of appellant’s head and the examination of these x-rays revealed that there were pieces of a knife blade lodged in appellant’s head. Appellant states that he was not aware of the results of these x-rays, although there is evidence to the contrary.

Nevertheless, appellant began to suffer headaches in September, 1973. He went to Dr. Clouse in December of that year. X-rays of appellant’s head were again taken. These x-rays also showed the presence of pieces of a knife blade. To prevent further complications, these pieces were surgically removed from appellant’s head. This suit was filed in May, 1974, alleging negligence in failing to discover and treat this problem. In his answers to interrogatories, appellant stated that he intended to present no medical expert. The trial judge, therefore, granted motions for summary judgment on the grounds that such evidence would be necessary to sustain appellant’s burden of proof.

Appellant presents two arguments in support of his position that no expert testimony was required:

(1) The doctrine of res ipsa loquitur is applicable.

(2) No expert evidence is necessary since this case comes within the exception to the rule requiring such evidence, Harmon v. Rust, Ky., 420 S.W.2d 563 (1967).

In order for the doctrine of res ipsa loquitur to apply in a medical malpractice action, the injury must be such as would not occur in the absence of negligence, Jewish Hospital Association of Louisville, Ky. v. Lewis, Ky., 442 S.W.2d 299 (1969). In addition, the Court of Appeals in Meiman v. Rehabilitation Center, Ky., 444 S.W.2d 78 (1969), has stated: “. . . the doctrine of res ipsa loquitur, although not usually applicable in malpractice cases, may be invoked in circumstances in which the generally accepted procedures are not calculated to produce the abnormal results asserted by the plaintiff.” A thorough examination of these cases reveals that the fact situation before this court is not one to which this doctrine can be applied.

In the case of Harmon v. Rust, supra, the Court of Appeals set forth the guidelines for determining the necessity of expert testimony in the medical malpractice action. Those guidelines are as follows:

The rule in malpractice cases is that negligence must be established by medical or expert testimony unless the negligence and injurious results are so apparent that laymen with a general knowledge would have no difficulty recognizing it. Johnson v. Vaughn, Ky., 370 S.W.2d 591.

Appellant argues that if Dr. Reynolds was informed that appellant had been stabbed then his failure to take x-rays was negligence that was so apparent as to be within the exception to the rule requiring expert medical evidence.

This court, however, does not agree. Even assuming the facts to be as appellant testified, it was still incumbent upon the appellant that he produce expert evidence that the standard of care required the taking of x-rays. In examining this issue, the Supreme Court of Arkansas stated in Walls v. Boyett, 216 Ark. 541, 226 S.W.2d 552 (1950), the following: “Such questions as whether the plaster cast should have been placed on the fractured arm, x-rays made, or an operation performed were obviously issues requiring scientific knowledge to determine.” This decision was reaffirmed in Davis v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972). Although there are no cases in Kentucky on this point, this Court finds the Arkansas decision to be dispositive of the issue presented herein.

Appellee, Dr. Reynolds, testified that he did all that should have been done in treating appellant and that there was no reason for x-rays to have been taken. After this evidence had been presented which supported appellee’s motion for summary judgment, appellant was required to produce some expert evidence which would support his claim of negligence, Neal v. Welker, Ky., 426 S.W.2d 476 (1968). Having failed to do so, the trial court was correct in entering the summary judgments.

Judgment is affirmed.

ALL CONCUR.


text:
    Frances Jones MILLS, Treasurer of the Commonwealth of Kentucky, as Custodian of the Uninsured Employers’ Fund, Appellant, v. ARTHUR CONSTRUCTION COMPANY, Fain & Pickett Excavating and Trucking, Thomas J. Ruth, James R. Yocom, Commissioner of Labor, as Custodian of the Special Fund, and Workmen’s Compensation Board of the Commonwealth of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Dec. 16, 1977.
    Robert F. Stephens, Atty. Gen., Richard Joiner, Asst. Atty. Gen., Frankfort, for appellant.
    Richard M. Compton, Georgetown, for Arthur Const. Co. and Fain & Pickett Excavating and Trucking.
    Bennett Clark, Stoll, Kennon & Park, Lexington, for Thomas J. Ruth.
    Cyril E. Shadowen, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for Special Fund.
    Before HAYES, WILHOIT and WIN-TERSHEIMER, JJ.
   HAYES, Judge.

This is an appeal of a judgment of the Scott Circuit Court which reversed a decision of the Workmen’s Compensation Board.

The facts were set out in the Agreed Statement of Record on Appeal:

Thomas J. Ruth was injured on August 5, 1974 by reason of an accident arising out of and in the course of his employment with Fain & Pickett Excavating and Trucking. At the time of the injury he was operating a bulldozer around the Thompson house in the Ironworks Estate Subdivision in Scott County. Arthur Construction Company was the general contractor on the Thompson house and had subcontracted some of the work to Fain & Pickett Excavating and Trucking. Fain & Pickett Excavating and Trucking is a partnership consisting of Ronnie Fain and Thomas W. Pickett. They were the immediate employers of Thomas J. Ruth at the time of the injury. Arthur Construction Company is a partnership between Charles Arthur and his brother, Ronald Arthur. At the time of the injury they had no immediate employees. Neither Fain and Pickett Excavating and Trucking nor Arthur Construction Company were covered by a policy of workmen’s compensation insurance on August 5, 1974.

Thomas J. Ruth filed his claim for workmen’s compensation benefits on November 26, 1974. A hearing was held on March 26, 1975. Upon the motion of the Uninsured Employer’s Fund, the Workmen’s Compensation Board rendered its opinion and award. An appeal was taken to the Scott Circuit Court by both Fain and Pickett Excavating and Trucking and by Arthur Construction Company.

On February 28, 1977, the Scott Circuit Court affirmed the decision of the Workmen’s Compensation Board. Arthur Construction Company then moved the court to reconsider its judgment. On April 1, 1977, the court amended its judgment and released Arthur Construction Company from liability.

The court upheld the contention of the appellee, Arthur Construction Company, that it was exempt from all provisions contained in the Workmen’s Compensation Act since it had no employees at the time of claimant’s injury. Therefore, appellee could not be a subject employer under the Workmen’s Compensation Act as defined in KRS 342.630.

KRS 342.630 provides:

Coverage of Employers — The following shall constitute employers mandatorily subject to and required to comply with, the provisions of this chapter: (1) Any person, other than one engaged solely in agriculture, that has in this state one or more employes subject to this chapter

Appellant argues that the appellee is liable under the provisions of KRS 342.610(2) which provides:

(2) A contractor who subcontracts all or any part of a contract and his carrier shall be liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured the payment of compensation as provided for in this chapter

and KRS 342.700(2) which provides:

(2) A principal contractor, intermediate or subcontractor shall be liable for compensation to any employe injured while in the employ of any one (1) of his intermediate or subcontractors and engaged upon the subject matter of the contract, to the same extent as the immediate employer

This court finds the fact that appel-lee, Arthur Construction Company, is not a subject employer to be irrelevant to the determination of its liability in this case since both KRS 342.610(2) and KRS 342.-700(2) impose liability upon contractors and subcontractors. The context of both provisions in no way indicates that contractors and subcontractors must be employers at the same time in order for them to be liable under the Workmen’s Compensation Act.

Yet, such contractors and subcontractors will be treated in effect as the employer of the injured claimant for purposes of the Workmen’s Compensation Act, Whittenburg Engineering and Construction Company v. Liberty Mutual Insurance Company, Ky., 390 S.W.2d 877 (1965).

Therefore, the judgment of the Scott Circuit Court is reversed with directions that judgment be entered for the appellant.

All concur.


author: HOWARD, Judge:

text:
    Gary Edward HARRISON, a/k/a Blair Anthony Harrison, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Aug. 12, 1977.
    Discretionary Review Denied Jan. 24, 1978.

      Jack Emory Farley, Public Defender, Commonwealth of Ky., J. Vincent Aprile, II, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., George M. Geoghegan, III, Asst. Atty. Gen., Frankfort, for appellee.
    Before HAYES, HOWARD and WIN-TERSHEIMER, JJ.
   HOWARD, Judge:

Defendant-appellant was convicted in the Fayette Circuit Court on three counts of possession of a forged instrument. He was indicted on August 25, 1975 on these charges, all of which were in violation of KRS 516.060. This statute reads as follows:

A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in KRS 516.030. (Emphasis supplied).

Defendant-appellant contends that the indictment in his case is fatally defective since the emphasized words were not specifically enumerated in the indictment. We disagree. In the first place, the error was not preserved for appellate review as no objection was ever made to the indictment before trial or thereafter. Clark v. Commonwealth, Ky., 418 S.W.2d 241 (1967).

In the second place, the indictment was not defective. The defendant-appellant was charged in the indictment with possession of a forged instrument in the second degree. He was informed of the specific date and place where the offense occurred and the instrument involved. He was informed that the instrument with which the offense was perpetrated was forged. He was informed of the specific statute setting forth the criminal violation. He was adequately apprised of the charge against him. Ward v. Commonwealth, Ky., 444 S.W.2d 896 (1969). It is to be noted that defendant-appellant did not ask for a bill of particulars.

Defendant-appellant urges us to give him a new trial on the grounds that the trial court erred to his substantial prejudice by permitting the Commonwealth to introduce proof at variance with the indictment and by instructing on elements not named in the indictment. Suffice it is to say that no objections were made and therefore appellate review of these grounds for reversal are precluded. He should either have objected, moved for a directed verdict, or tendered an instruction which he contends should have been used. Eversole v. Commonwealth, Ky., 550 S.W.2d 513 (1977).

On direct examination the defendant-appellant stated that he had never been arrested for any crime other than disorderly conduct. This was part and parcel of his overall strategy to deceive the court and jury by lying under oath about his age, real name, and previous record. It was not until he realized that the Commonwealth had evidence of a convincing nature which showed that he was not a juvenile and had a previous record that he attempted to recant his testimony. Anyway, the Commonwealth then asked on cross-examination if defendant-appellant had ever been convicted, of voluntary manslaughter. No objection was made to this question; therefore it cannot be considered. Eversole v. Commonwealth, supra. Further, the rule in Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970) does not preclude the use of the record of a prior conviction strictly to rebut a prior inconsistent statement made by a defendant to help bolster his case or defense. Dixon v. Commonwealth, Ky., 487 S.W.2d 928 (1972). It was therefore permissible for the Commonwealth to introduce this prior felony conviction not specifically related to truth and veracity for the purpose of contradicting appellant’s prior inconsistent statement.

The defendant-appellant also complains that the court erred in permitting the Commonwealth to impeach the appellant as to prior inconsistent statements given at an in-chambers hearing. Without further ado, we note that again no objection was made by the defense so any alleged error in this regard is not reviewable. Eversole v. Commonwealth, supra.

The trial court sustained an objection by the Commonwealth to the attempt by the defense to question officer Larry Ball as to what a handwriting analysis expert had told him in regard to his examination of the cheeks uttered. We do not perceive this to be prejudicial error since such evidence would have been hearsay and the conviction was based on possession of a forged instrument and not forgery. Therefore, such evidence would not have been relevant or material.

Finally, the defendant-appellant complains about the trial judge’s remarks to him that he would probably consider the defendant-appellant’s perjury in his sentencing. The trial court did let seven years of his sentence run consecutively with his prior sentence for armed robbery. However, this was within the trial court’s discretion and we find no evidence of bias toward the defendant-appellant. This was a fair trial and the defendant-appellant compounded his difficulties by lying to his own attorney and the court and jury.

The judgment is affirmed.

ALL CONCUR.


author: FINCH, Judge.

text:
    STATE ex rel. Larry Don SISCO, Relator, v. Honorable Winston V. BUFORD, Judge, Circuit Court of Howell County, Respondent.
    No. 60253.
    Supreme Court of Missouri, En Banc.
    Jan. 9, 1978.
    R. Jack Garrett, West Plains, for relator.
    Alex Bartlett, Jefferson City, for respondent.
   FINCH, Judge.

This is an original proceeding in prohibition, the objective of which is to prevent respondent from trying relator on a charge of murder in the second degree. We make permanent the preliminary rule in prohibition heretofore entered.

Relator is charged with the murder of his girl friend, Janice Louise Dick. Summoned by neighbors to the Dick house on August 29,1974, officers found Miss Dick dead as a result of a shotgun wound. They also found relator, at first thought dead, with much of the left side of his face and head blown away by a shotgun blast.

Relator was bound over to the Circuit Court of Howell County for trial. In that court relator’s attorney filed a motion alleging, inter alia, that relator’s physical and mental condition is such that he is unable to make rational decisions or to aid and assist in his defense and that he is incompetent to stand trial. The motion requested that an evidentiary hearing be held and that the court make a determination as to the issues presented by the motion.

Relator was examined by various doctors, psychiatrists and psychologists. Thereafter, an evidentiary hearing on relator’s motion to stay proceedings was held at which Dr. Gupta, a psychiatrist from the Farm-ington State Hospital, and Prof. Whipple, a clinical psychologist from Southwest Missouri State University at Springfield, Missouri, testified. At the conclusion of the hearing, respondent made a finding that “defendant has no memory of the events of the date of the alleged crime and cannot aid in his defense and that said loss of memory is permanent and that defendant can never aid in his defense * * Subsequently, respondent added the additional finding “that defendant fully understands the nature of the charges against him.” He then set the case for trial. Relator’s attorney objected to the case being set for- trial and when relief was not granted by respondent, applied unsuccessfully to the Missouri Court of Appeals, Springfield District, for a writ of prohibition. This proceeding followed.

The evidence clearly supports the finding of the trial court that relator cannot aid counsel in the defense of his case. The witnesses testified that relator does not now nor will in the future have any memory of the events at the time of the shooting incident. The left frontal lobe of relator’s brain is gone. That portion of the brain controls the emotional and memory functions of the brain or at least a part of them and, of course, will not be restored. The testimony of the witnesses was that this amnesia is permanent. However, the evidence indicates that this is not merely a case of amnesia as to the period in question. The witnesses testified that as a consequence of the gunshot wound and the resulting loss of a portion of the brain, what has happened to relator is equivalent to a prefrontal lobotomy, an operation utilized to attempt to decriminalize a person with a violent personality. If successful, such an operation creates a neuter personality. Such person can dress and feed himself and do some handiwork. He could know, as relator did, that he was charged with killing his girl friend. However, Prof. Whipple also testified that a prefrontal lobotomy type condition disturbs initiative and in almost all instances causes a marked loss of a person’s “critical faculty,” or, in other words, disturbs their ability to correctly evaluate their behavior or the adequacy of their action. As a result, said Prof. Whipple, relator cannot in an orderly fashion help counsel in the preparation of his defense. At another point in his testimony, Prof. Whipple told of various tests made and stated that he would conclude that there are definite deficits in his ability to plan ahead, to look at the information he has and to deal with that information in a coherent manner. Dr. Gupta testified that he could not say that relator could make decisions, place events in proper sequence or make analyses and deductions. He, too, testified that relator cannot aid counsel in the defense of his case.

As a result of his present condition, relator has amnesia and cannot remember any of the events in connection with what occurred relating to the death of Miss Dick. Hence, he cannot testify effectively as to what occurred. In addition, he cannot analyze and evaluate or make decisions. This condition would prevent his assistance to counsel in deciding upon pleas or strategy as well as causing him to be of no assistance in investigation or locating other witnesses. This inability is not feigned. It is the result of the loss of a portion of his brain which is essential to such functioning on his part. All of this evidence supports the finding of respondent that relator cannot aid counsel in his defense. The theory of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), applicable to court tried cases, would call for us to accept that finding by the trial court. However, we are not bound by and need not defer to his conclusion as to the legal effect of his finding of fact.

Relator asserts that having determined that relator cannot assist in his defense, respondent is without jurisdiction to proceed to try him. This is so, says relator, because to do so (1) will violate the due process provisions of the fourteenth amendment to the United States Constitution and Article I, Section 10 of the Missouri Constitution, (2) is contrary to the common law applicable in such a situation, and (3) is prohibited by specific provisions of § 552.-020, RSMo 1969, as amended, Laws 1971, p. 96, § 1. We conclude that the latter statute is dispositive and that we need not consider grounds (1) and (2).

Section 552.020.1 provides:

“No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.”

The foregoing statute is very explicit. A defendant may not be tried on a criminal charge so long as that defendant as a result of mental disease or defect either lacks capacity to understand the proceedings against him or lacks capacity to assist in his own defense. The trial court has found that relator lacks capacity to assist in his own defense. If that is the result of mental disease or defect, § 552.020.1 prohibits the court from trying him on the charge even though the court also finds that relator does have the capacity to understand the proceedings against him.

The relator does not have a mental disease. The psychiatrist so testified. However, he does have a mental defect produced by trauma. That such a condition is covered by § 552.020.1 is established by § 552.010, RSMo 1969, which provides that “[t]he terms ‘mental disease or defect’ include congenital and traumatic conditions as well as disease.”

Accordingly, we hold that so long as relator continues to lack capacity to assist in his own defense of the charge that he murdered Janice Louise Dick, respondent is prohibited from trying him on that charge. Our provisional rule in prohibition is made permanent.

MORGAN, C. J., and HENLEY, REND-LEN and SEILER, JJ., concur.

BARDGETT and DONNELLY, JJ., concur in result.


author: MORGAN, Chief Justice.

text:
    STATE of Missouri, Respondent, v. William ARRINGTON, Appellant.
    No. 59699.
    Supreme Court of Missouri, En Banc.
    Jan. 9, 1978.
    Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, Kathryn Marie Krause, Asst. Atty. Gen., for respondent.
   MORGAN, Chief Justice.

Appellant was tried to a jury on two counts of an indictment and found guilty of robbery in the first degree and murder in the second degree. Punishment was assessed at confinement for five years and twenty years, respectively, to be served consecutively.

The sufficiency of the evidence is not challenged and a rather summarized version thereof should be adequate.

Witness Jerry T. Mitchell testified that he lived in an apartment at 3700 Warwick in Kansas City; that on the night of July 6, 1975, he and others (including one Michael Gallagher) were having a party at his home; that appellant and three others came to the apartment and asked if he wanted to buy some television sets; that while discussions were being held in a back bedroom, the four newcomers displayed weapons and announced a robbery; that while he scuffled with one intruder, appellant shot him three times in the back; that money was taken from him; that he heard two or three more shots fired as the four made their way out of the apartment; that as he left to be taken to the hospital, he saw Michael Gallagher lying on the ground by the swimming pool outside the apartment.

Others at the party testified as to being robbed and related events the same as did Mitchell.

A statement signed by appellant was in evidence. Therein, he admitted that he had taken a .32 caliber revolver from Jerry Mitchell and thereafter shot him; but, that another one of the four had shot Gallagher.

The revolver was identified at trial and evidence was submitted that the “slugs” taken from the bodies of Mitchell and Gallagher were all fired from it.

Appellant did not testify or offer any evidence on his own behalf.

First, it is argued that the trial court erred in failing to give MAI-CR 2.70, which reads:

The defendant is charged with a separate offense in each Count submitted to you. Each offense and the evidence and law applicable to it should be considered separately. Any evidence which was or has been limited to one of the offenses charged or one purpose should not be considered by you as to another offense charged or for any other purpose.
You may find the defendant guilty or not guilty on any or all of the Counts submitted against him (, or you may find him not guilty by reason of a mental disease or defect excluding responsibility).
You should render a separate verdict as to each Count submitted against the defendant.

Since appellant was tried on two counts, with each requiring a separate verdict, the trial court erred in not following the “Notes on Use” to MAI-CR 2.70, i, e., so instruct the jury whether requested or not. However, the point has not been preserved for review by any record made at trial or any after-trial motion. Reliance necessarily is placed on the plain error rule (Rule 27.-20(c), Y.A.M.R.); which, insofar as controlling here, turns on whether or not “ . . . the court deems that manifest injustice or miscarriage of justice has resulted therefrom.” Quite obviously, it did not.

Upon reading all of the instructions, taken together, it is clear that the jury knew that it could find appellant guilty or not guilty on either or both counts. State v. Boyington, 544 S.W.2d 300[3, 4] (Mo.App.1976). Separate verdict directing instructions were given on robbery in the first degree, murder in the first and second degrees and manslaughter. Each carried a tail directing acquittal if all elements were not found beyond a reasonable doubt. Further, the jury was given six verdict forms, two of which entitled the jury to find the appellant not guilty of the robbery or the homicide, plus three more verdict directing forms which allowed the jury to find the appellant guilty of an offense without assessing punishment. Thereby, the jury was given every opportunity to find appellant guilty or not guilty of each offense. As said in the Boyington case, supra, at 304: “ . . . the purpose of MAI-CR 2.70, that is separate consideration of each offense, was accomplished in the case at bar beyond possibility of doubt and there could be no prejudice to defendant.” See also State v. Johnson, 537 S.W.2d 816 (Mo.App.1976) and State v. Nelson, 532 S.W.2d 855 (Mo.App.1975).

More recently, this court had occasion to consider the identical issue in State v. Minor, 556 S.W.2d 35[14] (Mo. banc 1977). After finding “no prejudice” to the defendant, the court cautioned, l.c. 42, that: “ . this result in this case does not indicate necessarily the same result in other cases wherein MAI-CR 2.70 is not given. The directions in MAI-CR 2.70 provide that it is to be given in all cases wherein there are multiple counts and trial judges are admonished to follow that direction.”

The trial court in the instant case erred prior to publication of the admonition in the Minor case and should not be charged with ignoring the same.

Nevertheless, this case and others noted herein demonstrate the additional burden placed upon the judicial system when simple rules are not followed. Failure to do so, unnecessarily, wastes judicial time; and, we once again suggest compliance with the “Notes on Use” to MAI-CR 2.70.

Second, appellant contends the trial court erred in overruling his motion to strike the jury panel based on his allegation that Article I, § 22(b) of the Missouri Constitution, allowing women to request automatic exemption from jury service, is unconstitutional. No evidence was offered at trial on this point. Furthermore, the challenged constitutional provision was upheld recently by this court in State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), and the decision therein is dispositive of the issue.

The judgment is affirmed.

BARDGETT, HENLEY, DONNELLY, RENDLEN and SEILER, JJ., and NOR-WIN D. HOUSER, Special Judge, concur.

FINCH, J., not sitting.


author: GUNN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Brian Keith RADFORD, Defendant-Appellant.
    No. 37967.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 27, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.
    Application to Transfer Denied Dec. 19, 1977.

      David M. Johnson, Hayes & Heisler, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Presiding Judge.

Defendant appeals his two count conviction of assault with intent to ravish with malice and first degree robbery. Defendant claims that the lineup procedures in which he was required to participate were improper. We reject defendant’s contention and affirm the conviction.

The assault and robbery took place in St. Louis in the early morning hours — about 2:00 A.M. The victim testified that as she emerged from her parked car, she saw the defendant approach her in a stooped position. The defendant placed a sharp object to the victim’s neck, threatened and fondled her, told her that he was going to have sexual intercourse with her and forced her to remove a portion of her clothing. When the victim screamed, the defendant struck her repeatedly on her face and head causing her severe physical injury. The defendant then took the victim’s purse containing $58 and fled. The victim testified that she had a clear view of the defendant’s face for about 1½ to 2 minutes: “ . . . [A]nd I looked right at him — I guess it was the same time when he stooped up — I guess about a minute and a half, or maybe two minutes, I looked at him real good.” The victim stated that a “big floodlight” served to light the area in which she saw the defendant. After the assault, the victim gave the police a description of her assailant, including an estimate of his height at 5' 10" to 5' 11".

Shortly after the assault, but before the police had been notified of the crime, a St. Louis police officer, Frank Booker, observed the defendant near the scene of the assault. Officer Booker had known the defendant from previous encounters and knew that the defendant did not live in the area. Seven days after the assault, the defendant was arrested on an unrelated charge, and on the basis of Officer Booker’s report, he was placed in the lineup as a suspect in the assault and robbery case. The defendant refused to participate in the lineup, and police officers were required to hold his head up while the victim of the assault and robbery viewed the lineup and promptly identified the defendant as her assailant. The victim also identified the defendant in court during the trial.

On appeal, defendant argues that the lineup identification should have been suppressed, because: (1) he was forced to participate in the lineup without his consent and without probable cause; and (2) the police in holding defendant’s head rendered the lineup unduly suggestive.

Defendant argues that no probable cause existed for his arrest on the assault and robbery charges prior to the lineup; hence, the police could not compel his participation in it. There is no merit to defendant’s argument. Defendant was in lawful custody at the time of the lineup. He requested and had counsel present to inform him of his rights. Defendant’s participation in the lineup did not infringe upon his right of self-incrimination, U. S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), nor has he specified any right that may have been infringed upon.

Defendant’s claim that the lineup was unduly suggestive is illusory. In determining whether a pretrial confrontation is maculated by suggestive factors, we review the totality of the circumstances surrounding the confrontation. Simmons v. U. S., 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Macon, 547 S.W.2d 507 (Mo.App.1977); State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975). Here, any claim of suggestiveness was due to defendant’s own contumacy and personal refusal to behave unobtrusively. The suggestiveness was of defendant’s creativity and affords no basis for his claim that the lineup was tainted.

Further, the victim’s in-court identification of the defendant was firmly grounded on her observation of him at the time of the assault. The record contains clear and convincing evidence of the victim’s independent source of identification other than at the lineup. And if there is a source of identification independent of a suggestive lineup and there is positive courtroom identification — as here — the in-court testimony is admissible. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Holland, 534 S.W.2d 590 (Mo.App.1976). Thus, the in-court identification of defendant in this case was admissible. State v. Taylor, 456 S.W.2d 9 (Mo.1970); State v. Johnson, 522 S.W.2d 106 (Mo.App.1975).

Defendant also argues that the independent identification was unreliable as the victim wrongly stated the defendant’s height to police. The defendant was in fact 6' 6" tall as opposed to her report of 5' 10" to 5' 11". But the law does not require that a witness’ description be totally accurate, and other factors may be shown to prove the reliability of the independent identification. These factors include: the opportunity of the witness to view the criminal at the time of the offense; the degree of attention given by the witness; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. Neil v. Biggers, supra; State v. Davis, 529 S.W.2d 10 (Mo.App.1975). The facts in this case establish sufficient basis for the victim’s identification of the defendant as her assailant. Other than her estimate of the defendant’s height, the record discloses no other inaccuracies in her description of the defendant. Inconsistencies in testimony and credibility of witnesses are factors for jury resolution. State v. Roberson, 548 S.W.2d 280 (Mo.App.1977); State v. Peck, 545 S.W.2d 725 (Mo.App.1977).

Judgment affirmed.

KELLY and WEIER, JJ., concur.

      . A parallel factual situation existed in State v. Redd, 550 S.W.2d 604 (Mo.App.1977), where the defendant resisted appearing in a police lineup and insisted on sitting on the floor during the identification proceedings. Defendant’s counsel moved to suppress the identification on the basis that the procedures were unnecessarily suggestive. The trial court overruled the motion. However, the defendant’s counsel failed to preserve the point on appeal.


author: McMillian, Judge.

text:
    James G. BRIDGES, Respondent, v. Olandrea S. BRIDGES, Appellant.
    No. 38477.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 18, 1977.
    Appellant’s Motion for Rehearing or for Transfer to Court En Banc or Transfer to Supreme Court Denied Dec. 16, 1977.

      Armstrong, Teasdale, Kramer & Vaughan, Justin C. Cordonnier, St. Louis, for appellant.
    Wasinger & Parham, Marion F. Wasinger, Hannibal, for respondent.
   McMillian, Judge.

Appellant Olandrea S. Bridges appeals from a judgment of the Hannibal Court of Common Pleas, dissolving the marriage of appellant and respondent, James G. Bridges, § 452.305 RSMo Supp.1975, and granting custody of the couple’s daughter to respondent, § 452.375, RSMo Supp.1975. Appellant attacks only the award of custody on the ground that the trial court did not have personal jurisdiction over her at the time the petition was filed. We hold the court of common pleas had the necessary jurisdiction and, accordingly, affirm.

James and Olandrea Bridges were married on December 2,1973, while Mr. Bridges was a member of the Armed Servicés. One child, Lisa, was born on May 28, 1974. Mr. Bridges was discharged in November of 1974 and he, Olandrea, and Lisa returned to his permanent address in Hannibal, Missouri. On January 9, 1975, Mrs. Bridges took Lisa, without telling her husband, and went to her aunt’s home in St. Louis, Missouri. Later, on the night of January 9, she and Lisa flew to her parent’s home in Delaware, where Mrs. Bridges has remained.

On January 9, after his wife had left, James Bridges met with his attorney and prepared a petition for dissolution of marriage. This petition was filed on January 15, 1975, and, after hearings, the Hannibal Court of Common Pleas in Missouri, rendered a decree on June 2, 1975, granting a dissolution of marriage and awarding custody of Lisa to Mr. Bridges. Mrs. Bridges filed a petition in the Family Court of Delaware seeking custody of Lisa on January 10, 1975. That court rendered a judgment on March 10, 1975, granting Mrs. Bridges custody of Lisa. In a habeas corpus proceeding brought by Mrs. Bridges in the Circuit Court of the Tenth Judicial Circuit of Illinois, however, the Delaware court order was held to be defective because of improper service on Mr. Bridges. The Illinois court denied Mrs. Bridges relief on the ground that the Missouri order of custody was valid and entitled to full faith and credit.

In this appeal Mrs. Bridges questions only the award of custody by the Hannibal court of common pleas. Her sole argument is that because the trial court did not have personal jurisdiction over her when the petition was filed, the custody award to Mr. Bridges is invalid.

We must sustain the trial court’s judgment “unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law,” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976) and Civil Rule 73.01, V.A. M.R. Keeping this in mind, we turn to the merits of the appellant’s argument.

A court may adjudicate the custody of a child “ ‘. . . (a) who is domiciled in the state, or (b) who is present in the state, or (c) . if the controversy is between two or more persons who are personally subject to the jurisdiction of the state.’ ” Kennedy v. Carman, 471 S.W.2d 275, 282 (Mo.App.1971); Morgan v. Morgan, 542 S.W.2d 617, 618 (Mo.App.1976). There are two possible theories to sustain the trial court’s determination of custody, both of which depend upon a finding that Olandrea Bridges was domiciled in Missouri when the petition was filed with the court of common pleas. A child’s domicile is presumed to be the same as that of her custodial parent. Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566, 569 (1949). At the time the action was filed, January 15,1975, Lisa was in the custody of her mother. Therefore, if Mrs. Bridges was a domiciliary of Missouri, so was Lisa and the court had jurisdiction under the first instance listed above. In addition, if Mrs. Bridges is a domiciliary of Missouri, the court would have had personal jurisdiction over both parties to the controversy as stated in the third circumstance listed above. Because Mr. Bridges is undis-putably domiciled in Missouri, the trial court has jurisdiction over him; and if Mrs. Bridges was a domiciliary of Missouri at the time the petition was filed, the court had jurisdiction over her pursuant to Civil Rule 54.07, V.A.M.R. Rule 54.07 provides that service outside the state is sufficient to authorize a general judgment in personam upon any person who was domiciled in the state at the time of the commencement of the civil action, which in this case is January 15,1975, the date the petition was filed.

We find that on January 15, 1975, when the cause of action commenced, appellant was a domiciliary of Missouri. It is clear that she was a domiciliary on January 9 for her husband had been a domiciliary of Missouri throughout and after his service in the Army, and a woman’s domiciliary is the same as her husband’s. Cox v. Cox, 488 S.W.2d 275, 277 (Mo.App.1972). We do not find that the evidence was sufficient as of January 15, 1975, to show that she abandoned this domicile and established a new one.

Two things are necessary to establish a new domicile: presence in the new location and an intent to remain there, making that location one’s permanent residence. In re Estate of Ritter, 518 S.W.2d 453, 456 (Mo.App.1975); Fowler v. Clayton Sch. Dist., 528 S.W.2d 955, 957 (Mo.App.1975).

While appellant was in Delaware on January 15, she has not presented sufficient evidence of her intent, as of January 15, to remain in Delaware. Mrs. Bridges was a nineteen year old, newly-married woman who had experienced severe mental and emotional problems for several years. As of January 15, she had been away from her home and husband for less than one week and had left all of her clothes and belongings at her home in Missouri. In addition, the evidence shows that she did not set up housekeeping in Delaware but moved in with her parents and that she did not secure permanent employment but only a part-time waitressing job at $15 per week. There is no evidence that she attempted to register to vote or obtain a Delaware driver’s license. Appellant argues that on January 10, 1975, when she filed a petition for divorce, listing her residence as “Box 24, Magnolia, Delaware,” she demonstrated an intent to make Delaware her home. In fact, however, she listed her address as “c/o Jean Wescott, Box 24, Magnolia, Delaware.” We do not agree that this is a sufficient indication of intent to overcome the other evidence before the court. This reference indicates an unsettled intention at best: that while Mrs. Bridges may not be at the given residence she may be reached through someone living there.

From these facts the trial court was justified in finding that, when the petition was filed and the cause of action commenced, appellant was a resident of Missouri. We note that with the hindsight of the two-and-one-half years since this cause of action commenced, it may appear that, in fact, on January 15, 1975, appellant was no longer domiciled in Missouri. But the statute, Civil Rule 54.07(a)(2), V.A.M.R., and our precedents in Beckmann v. Beckmann, supra, 218 S.W.2d at 569, do not allow this vantage or viewpoint and for good reason. To require a court to assess the domicile of the parties at a stage in the proceedings later than the commencement of the cause of action would allow, if not encourage, a party to the suit to re-establish a domicile in the state most advantageous to her litigious interest.

Because we find that Mrs. Bridges was a domiciliary of Missouri at the time the cause of action commenced, we find that the trial court had jurisdiction to determine the custody of Lisa Bridges for either of two reasons: Lisa was a domiciliary of Missouri, Beckmann v. Beckmann, supra, at 569, or the controversy was between two or more persons who are personally subject to the jurisdiction of the state, Civil Rule 54.07, V.A.M.R. Therefore, the trial court’s judgment is affirmed.

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

      . The Illinois court apparently obtained jurisdiction to hear the habeas corpus petition because of Mrs. Bridges’ allegation that her husband was residing in Pekin, Illinois. It is not clear from the record how this claim was substantiated but we assume from other testimony that Mr. Bridges was residing in Hannibal, Missouri through January 15, 1975.

      . For the intellectually curious, the respondent has set forth a second theory to sustain this judgment but which the court found unnecessary to rule upon. The respondent maintains that Civil Rule 54.06(b), V.A.M.R., which grants long arm jurisdiction over a person who lived in lawful marriage within the state for . . all civil actions for divorce or separate maintenance and all obligations arising for alimony, child support, attorney fees, suit money, or property settlement, if the other party to the lawful marriage continues to live in this state.” The rule does not specifically include child custody in its enumerations. The question is whether the rule implicitly includes jurisdiction over the child custody issue as part of “all civil actions for divorce” and whether the requirement of minimum contact is satisfied as in the case of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).


author: REINHARD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Melvin JOHNSON, Defendant-Appellant.
    No. 38750.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 29, 1977.

      Robert C. Babione, Public Defender, Joseph Webb, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   REINHARD, Judge.

Defendant was found guilty of robbery in the first degree, and was sentenced under the Second Offender Act to imprisonment for ten years. §§ 560.120, 560.135, RSMo 1969.

The trial court instructed on robbery in the first degree, requiring the jury to find that defendant acted either alone “or knowingly and with common purpose together with another * * The court also submitted Instruction No. 5, which was MAI-CR 2.10, “General Responsibility for the Conduct of Others”, and refused defendant’s requested instruction on stealing from the person.

The victim, Mark Smith, testified he entered Fry’s Drug Store in the City of St. Louis to cash a check and to purchase several money orders. While there he observed two individuals, later identified as defendant and Freddie McCray, looking at valentine cards. After purchasing the money orders he placed them in the inside pocket of his coat and the cash in his pants pocket. He left the store and walked about a block and a half. While pausing to secure a better hold on the groceries he was carrying, the defendant approached him. Smith was struck from behind, knocked down, and almost simultaneously defendant took the money from his pants pocket. McCray then removed the money orders from his coat pocket.

Defendant testified he had known McCray for twenty years. According to defendant, on the evening of the robbery, McCray picked up defendant and his fiancee and drove them to the drug store. While looking at valentine cards, they saw Smith purchase his money orders. As the defendant was paying for his valentines, McCray whispered to him that he was “going to stick up that old man, ⅜ * *.” McCray left the store, a few steps ahead of defendant. Defendant stopped at the car, gave the valentines to his girl friend, and pursued McCray in an “attempt to stop him from robbing the old man, * * As defendant approached, Smith turned and faced him. McCray stood on the victim’s opposite side and struck him from behind. The old man fell down, shaking violently. McCray said: “ ‘Where all your money at’ ”, and then bent down and snatched the money orders and money from Smith. Defendant told McCray to “ ‘Give the man his money back.’ ”

Defendant does not challenge the sufficiency of the evidence as to the conviction of robbery, and as his sole grounds for reversal cites the failure of the court to give an instruction on stealing from the person. Defendant’s motion for new trial asserts that the court erred in refusing defendant’s Instruction “A” (stealing from the person), but fails to specify any facts in evidence supporting such submission. The assignment does not properly preserve the point for review. Rule 27.20(a); State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976); State v. Schulten, 529 S.W.2d 432 (Mo.App.1975).

Rule 27.20(c) provides: “Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.”

Initially, we note that § 546.070(4), RSMo 1969, requires the court to instruct the jury on “all questions of law arising in the case which are necessary for their information in giving their verdict; * * Generally, “instructional error is not ‘plain error’ unless the trial court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice, *." State v. Harley, 543 S.W.2d 288, 292 (Mo.App.1976), citing State v. Bridges, 491 S.W.2d 543, 547 (Mo.1973); State v. Auger, 434 S.W.2d 1,4 (Mo.1968); State v. Murphy, 533 S.W.2d 716, 718 (Mo.App.1976). The facts and circumstances of each case must be reviewed on a case-to-case basis to determine plain error. State v. Patterson, 443 S.W.2d 104, 107 (Mo. banc 1969).

Defendant contends he was entitled to the stealing-from-the-person instruction since no evidence was presented from which the jury could find he used force or violence in the commission of the crime, whereas there was evidence presented from which the jury could find defendant was not acting with another.

Defendant correctly states that if there is substantial evidence the taking was accomplished without violence or putting in fear, an instruction submitting the lesser offense of stealing from the person, rather than robbery, must be given. State v. Adams, 406 S.W.2d 608 (Mo.1966). In this case, the theory of the state was that defendant acted in concert with another in committing the robbery. This court, in State v. Johnson, 510 S.W.2d 485, 489 (Mo.App.1974), held:

“Presence, companionship and conduct before and after the offense are circumstances from which a defendant’s participation in the criminal intent may be inferred. * * * Moreover, evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction and it is not necessary that the defendant personally have done each one of the elements of the crime.”

The defendant relies on a series of cases wherein the defendant was found guilty of robbery while acting with another, and wherein the court reversed for failure to instruct on the lesser offense of stealing. The evidence presented in those cases distinguishes them from the case before us. The defendant admits being with McCray before and during the robbery. The defendant testified that McCray in his presence committed acts which constituted the offense of robbery in the first degree.

If the evidence offered by the state is true, defendant was guilty of first degree robbery. If defendant’s testimony was true, he was not guilty of either the offense of robbery or stealing. State v. Herron, 349 S.W.2d 936 (Mo.1961).

We cannot find that the failure to instruct the jury on stealing from the person has resulted in “manifest injustice or miscarriage of justice”, and hence there was no plain error under Rule 27.20(c).

Judgment affirmed.

McMILLIAN, P. J., and STEWART, J., concur.

      . Among those cases cited are: State v. Rust, 468 S.W.2d 205 (Mo.1971); State v. Adams, 406 S.W.2d 608 (Mo.1966); State v. Lasson, 292 Mo. 155, 238 S.W. 101 (1922).