author: SHANGLER, Judge.

text:
    Paulette Sue McCLARNON, Respondent, v. Billy Ray McCLARNON, Appellant.
    No. KCD 27544.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    David A. Welte, Thomas J. McGrath, Olsen, Talpers & Welte, Kansas City, for appellant.
    Ted Y. McGuire, Tierney, Mushkin & McGuire, Kansas City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

The appellant father appeals from a judgment which denied change of custody of the infant Mitchell from the respondent mother. The original award of custody was entered upon the dissolution of the marriage in July of 1970 at which time the child was four years of age.

After this domestic rupture, the respondent entered into an admitted adultery with a male who shared living quarters with her and the boy. After a year, the respondent repented of this liaison and brought it to an end. Thereafter, she removed with the boy to Parkville where, for about a month, she shared a house with a Pat McAvoy and his two children. The appellant testified that she had slept with McAvoy, but the respondent denies an improper relationship with him. A few months later the respondent married one Jimmy Rusco, but was prompted by his abuse to divorce him.

The boy Mitchell has been beset by a tendency [seemingly an inheritance from the mother] to adiposity, so that at the time of the hearing for change of custody, he weighed 115 pounds — 50 pounds over normal — although then only eight years of age. Since her divorce from the appellant, the respondent has worked steadily, so that Mitchell has spent much time with sitters.

At the trial [and on this appeal] the appellant has complained that the respondent has been neglectful of the child so that he has become slovenly of appearance, habit and manner. The appellant complains also that the mother has done nothing, as by way of diet, to abate the child’s weight, although Mitchell had always responded well to such controls during his periods of visitation custody. This evidence, as well as the admitted episode of promiscuity and the inference of other impropriety, the appellant asserts, shows the unfitness of the respondent mother as the custodian of the boy.

We need only say that a review of the record of this hearing discloses that the judgment which confirmed custody in the respondent mother comports with the exercise of a wise discretion and took fully into account those statutory elements required for consideration by § 452.300, R.S.Mo.Supp. 1973.

The court made careful inquiry into the causes of the condition of overweight which beset the child and deferred decision until the medical procedure by diet for the reduction of his weight had been established. The respondent, in turn, pledged herself to follow the medical regimen prescribed for the continued reduction and control of the boy’s abnormal disposition to corpulence.

The admitted adultery, a folly recognized by the respondent and discontinued by her long before the change of custody motion, standing alone, is not sufficient to stigmatize her as an unfit custodian. It is the effect of such conduct on the child which is the paramount consideration. Klaus v. Klaus, 509 S.W.2d 479, 481[9, 10] (Mo.App.1974). The trial court apparently found no inference that the boy was aware of, or had been affected by, his mother’s misconduct. The judgment of the court is also consistent with a finding, upon disputed evidence, that no impropriety subsisted between the respondent and McAvoy, as contended by the appellant.

We defer to the opportunity of the trial court to have judged the credibility of the witnesses [Rule 73.01] and conclude that the judgment is consistent with the best interest of the child.

Accordingly, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    Buddy Gordon MIKEL, Respondent, v. STATE of Missouri, Appellant.
    No. KCD 27561.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for appellant.
    Clyde C. Rogers, Public Defender, Moberly, for respondent.

      Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

The State appeals an order setting aside the conviction of Buddy Gordon Mikel and allowing him to withdraw his plea of guilty to rape. Mikel (movant) was sentenced to ten years confinement following a plea of guilty.

In his motion under Rule 27.26, movant alleged as grounds for vacating and setting aside his conviction (1) his plea of guilty was not entered knowingly, intelligently and voluntarily, with fifteen allegations of specific reasons, (2) the court accepted his plea of guilty without first determining whether or not it was voluntary, with four allegations of specific reasons, (3) ineffective assistance of counsel, with seven allegations of specific reasons, (4) failure of the court to observe the requirements of Chapter 552, RSMo 1969, regarding the psychiatric examination of movant, with three allegations of specific reasons, and (5) movant was denied due process because at the time it passed sentence the court had false and inflammatory information in its files concerning the past conduct of movant which induced a greater sentence.

After an evidentiary hearing, the court entered the following order:

“FINDINGS AND ORDER
“An evidentiary hearing was granted movant on his Amended Motion to Vacate Sentence. Movant was represented by counsel and evidence was presented at the hearing on July 18, 1974.
“The court finds that movant entered a plea of guilty to a charge of rape in the Circuit Court of Howard County, Missouri in Case No. 2558 on April 14, 1970, and said plea of guilty was accepted by the court. The court sentenced movant to ten years in the custody of Department of Corrections on the same' date. The court finds that movant at the time he entered his plea of guilty did not have a clear understanding of the nature of the charge brought against him. The court further finds that movant’s plea of guilty was not knowingly and intelligently made. The court further finds that the judgment of conviction of movant in Case No. 2558 in the Circuit Court of Howard County, Missouri should be set aside to correct a manifest injustice and movant should be permitted to withdraw his plea of guilty entered in said cause.
“It is therefore ordered that the sentence and judgment of conviction of mov-ant, Buddy Gordon Mikel, in Case No. 2558 in the Circuit Court of Howard County, Missouri be and is hereby set aside and movant Buddy Gordon Mikel shall be permitted to withdraw his plea of guilty entered in said cause. Movant is ordered remanded to the custody of the Sheriff of Howard County, Missouri for further proceedings.”

The State primarily argues the invalidity of the court’s order on the basis the court failed to make the findings of fact and conclusions of law required by Rule 27.26(i). That Rule provides in part: “[t]he court shall make findings of fact and conclusions of law on all issues presented . . . ”

A remarkable similarity will be noted between the order in this case and that made in Porter v. State, 504 S.W.2d 30 (Mo.1974) and State v. McCullough, 493 S.W.2d 353 (Mo.App.1973). In both Porter and McCullough the court held findings of fact had not been made which would enable the appellate court to carry out its appellate function to determine if the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j).

In this case the movant alleged five grounds with numerous specific allegations of fact in support of his contentions that his conviction should be set aside and he be allowed to withdraw his plea of guilty. The evidence heard by the court on the motion range over practically all of the matters alleged in the motion. Much of the evidence was conflicting since it came from the movant on one hand and from his attorney at the time the plea of guilty was entered on the other. Furthermore, the court had before it a transcript of the proceedings at the time movant’s plea of guilty was entered and accepted which contradicts much of movant’s evidence.

In spite of the conflict in the evidence, the court failed to make any findings of fact. Rather, the court made a finding of the ultimate question of law, i. e., the plea was not knowingly and intelligently made and the movant did not have a clear understanding of the nature of the charge brought against him. These would be sufficient conclusions of law, but they would have to be supported by the findings which the trial court made in order to reach such conclusions. This court cannot review the findings of fact which the trial court may have made on conflicting evidence when the record is silent as to which facts the court found.

In this proceeding it is not possible to imply that the trial court made certain findings of fact which would support the two conclusions of law stated. This was the holding in Thomas v. State, 465 S.W.2d 513, 516 (Mo.1971) when the court stated: “[o]nly by implication may it be said that the court ruled on these questions. A ruling by implication is not a sufficient basis for a 27.26 appellate review.” Thus, this court is not at liberty to imply that the trial court found any particular fact in the absence of a finding made by the trial court.

A finding of fact has been said to be a finding sufficient to show how the controlling issues have been decided. Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136, 142 (banc 1952). In short, the finding of fact is nothing less than a statement by the court as to what facts the court finds to be true which in turn leads the court to form conclusions of law. The conclusions constitute a finding on the ultimate legal issues which determines the result of the dispute.

The judgment setting aside and vacating movant’s conviction and allowing him to withdraw his plea of guilty is reversed and the cause is remanded for the court to make findings of fact and conclusions of law on all issues presented by movant as required by Rule 27.26(i).

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Theoplus E. HILL, Appellant.
    No. KCD 27657.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.

      Jon M. Krebbs, Asst. Public Defender, Seventh Judicial Circuit, Liberty, for appellant.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   SOMERVILLE, Presiding Judge.

Defendant was found guilty by a jury of stealing a motor vehicle. He was sentenced by the court to four years confinement in the Department of Corrections in view of the jury’s inability to agree upon his punishment.

By a timely appeal defendant seeks to set aside his conviction and sentence on two grounds: (1) the trial court erred in admitting his extrajudicial oral confession prior to proof by the state of the corpus delicti of the crime; and (2) the state failed to meet its burden of proof because of a material and prejudicial variance between the information and the proof adduced at trial regarding ownership of the motor vehicle which defendant was charged with stealing. The nature of defendant’s first point dictates a need for setting forth the facts in their correct trial sequence. With this admonition in mind, the following facts are sequentially set forth.

At 5:19 a. m. on May 28, 1974, Officers Trabue and Bozarth of the Kansas City, Missouri Police Department were dispatched to the Bus-Air Truck Company at 1508 Woods wether Road to meet a security guard who had reported the presence of “prowlers”. Upon arrival they found defendant handcuffed and standing next to the security guard’s automobile with a gas cap in his hand. The gas cap fit a 1974 Thunderbird automobile which was parked next to a fuel pump which was located between a truck and a loading dock. The cover to the gas tank of the Thunderbird was open and the gas cap was off. There was a padlock lying halfway between the Thunderbird and the fuel pump. The padlock had been sheared by some type of cutting instrument. At the scene defendant told the officers that a white male who had been driving the Thunderbird picked him up and offered to take him home if he would obtain gas for the car. Defendant pointed across the street and indicated that the white male was standing there waiting for him. One of the officers checked the area pointed out by defendant but was unable to find any one who matched the description given by defendant. Defendant was arrested and given a Miranda warning. Upon searching the defendant, an automobile key was found which unlocked the trunk to the Thunderbird. Upon opening the trunk of the Thunderbird one of the officers discovered “a rather large bolt cutter”. Defendant was then removed to police headquarters and booked.

At police headquarters defendant was again given a Miranda warning and he signed a “waiver of rights”. An officer who thereafter interrogated defendant at police headquarters testified that defendant admitted stealing the Thunderbird on the night of May 24, 1974, from Dealers Transport Co. on 69 Highway in Clay County.

Gordon Ringberg, an employee of Dealers Transport Co. testified that the Thunderbird was received by his employer on May 22, 1974, from California, and was on his company’s lot on May 24, 1974. The car was in transit from California to Dewey Ford, Inc., a dealer in Iowa. Ringberg discovered the Thunderbird had been stolen from the company lot when informed by the police on May 28, 1974, that they had the car. No one on behalf of Dealers Transport Co. ever gave defendant permission to use or drive the Thunderbird.

Defendant chose not to offer any evidence.

Defendant’s first point must be put in proper perspective. He does not claim that proof of the corpus delicti was inextricably linked to his extrajudicial oral confession and without the latter no proof of the corpus delicti existed. Indeed, if he did, the record would strip such a claim of all credence since the transcript discloses that the state adduced sufficient independent evidence, totally apart from defendant’s extrajudicial oral confession, to establish the corpus delicti. The real nub of defendant’s first point is directed toward the order of proof, i. e., admission of his extrajudicial oral confession prior to proof by the state of the corpus delicti. Viewed in its proper perspective, defendant’s first charge of error must fail. Similar charges of error have been leveled in previous cases and consistently struck down. The reason being this state has not seen fit to legally write an indelible trial scenario requiring independent proof of the corpus delicti to inexorably precede admission to an accused’s confession. State v. Easley, 515 S.W.2d 600, 602 (Mo.App.1974); State v. Madison, 459 S.W.2d 291, 293 (Mo.1970); State v. Rohman, 261 S.W.2d 69, 73 (Mo.1953); and State v. Arndt, 143 S.W.2d 286, 287 (Mo.1940).

Defendant’s second and final point also fails to afford him any relief. The gravamen of defendant’s second point, as contended by him, is the existence of a variance between the information and the proof at trial regarding ownership of the Thunderbird in that the information charged him with stealing property belonging to Dewey Ford, Inc., while the proof at trial showed ownership of the Thunderbird to be in the Ford Motor Cotnpany. Defendant has characterized the variance as “material and prejudicial” without advancing any reason or argument as to how and why such a characterization should attach.

An analysis of the information in conjunction with the facts impels the conclusion that defendant’s characterization of the variance is totally unwarranted. The information charged defendant with stealing a motor vehicle, to-wit, a Thunderbird “ . . . the property of Dewey Ford, Inc., under the care and custody of Dealers Transport Co. . . .” Mr. Ringberg of Dealers Transport Co. testified that “as far as we’re concerned, at the time [it was stolen] it was Ford Motor Company’s car.” However, Mr. Ringberg further testified that the car was in the possession and custody of Dealers Transport Co. [when stolen] and that it would have been liable for the car if it had not been recovered. Mr. Ring-berg’s testimony also disclosed that the Thunderbird was received by Dealers Transport Co. from Ford Motor Company for delivery to a dealer, in this case Dewey Ford, Inc., in Des Moines, Iowa.

Lawful custody and control of property, even though actually owned in the formal or strict sense by another, is in the eyes of the law a sufficient attribute of ownership to support an averment and proof of ownership against one charged with stealing property belonging to another. State v. Flowers, 311 Mo. 510, 278 S.W. 1040, 1043 (1925); State v. Nicoletti, 344 Mo. 86, 125 S.W.2d 33, 36 (1933); and State v. Webb, 400 S.W.2d 84, 86 (Mo.1966). In the instant case the information averred and the evidence at the trial was amply sufficient for the jury to find that the Thunderbird was in the “custody and control” of Dealers Transport Co. when stolen by defendant from its lot. In an “embezzlement” case the purpose of requiring an averment of ownership in the information was held to be threefold: (1) to show that title of ownership is in someone other than the accused since the accused can not be charged with converting his own property; (2) to furnish notice to the accused of the particular offense which he is confronted with; and (3) to bar subsequent prosecution of the accused for the same offense. State v. Nelson, 362 Mo. 129, 240 S.W.2d 140, 142 (1951). This court believes the same rule should apply in a “stealing” ease. Here the information clearly averred sufficient ownership in someone other than defendant, the averment was such that defendant was under no false illusion or misapprehension about being charged with stealing a Thunderbird belonging to another from the lot of Dealers Transport Co. while it was in their “care and custody”, and, in State v. Wright, 476 S.W.2d 581, 584 (Mo.1972), a first degree robbery case involving an analogous variation between an averment in an information and proof at trial as to ownership of the property taken, it was held that the charge as alleged in the information would protect the accused against a subsequent charge involving the same act. The averment in the instant information that the general owner of the Thunderbird was Dewey Ford, Inc., while the evidence showed the general owner thereof to be Ford Motor Company, smacks of being harmless surplusage rather than a material variance in legal contemplation because of the additional averment in the information and uncontradicted proof at trial that the Thunderbird was in the “care and custody” of Dealers Transport Co. when stolen from its lot in Clay County. If there was a variance, it did not rise to the level of a material variance. Whether viewed as sur-plusage or as a variance, defendant, for reasons heretofore stated, was not prejudi-cially victimized by the somewhat imperfect information by which he was charged and stood trial.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Denorvel M. BLAINE, Appellant.
    No. KCD 27697.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.

      Thomas M. Larson, Public Defender, Robert A. Simons, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J. and TURNAGE, J.
   TURNAGE, Judge.

Defendant appeals his conviction on both counts of a two-count information. Defendant was charged in each count with robbery in the first degree by means of a deadly and dangerous weapon.

The jury was unable to agree on the punishment and the court assessed a sentence of twenty-five years confinement on each count with the sentences to run consecutively.

On appeal defendant raises only a claim of unconstitutionality as to both Rule 24.04 and Section 546.480, RSMo 1969. He raises no question as to the sufficiency of the evidence, so a recital of the evidence presented is not necessary.

Defendant filed his brief prior to the decision of the Supreme Court in State v. Baker, 524 S.W.2d 122 (Mo. banc 1975). Almost identical challenges were made to both Rule 24.04 and § 546.480 in Baker as are made in this case. Those contentions were fully answered in Baker when the court held Rule 24.04 to be valid but held § 546.480 to be unconstitutional. The court in Baker noted, however, that holding § 546.480 to be unconstitutional did not entitle the defendant to a new trial but only to have sentence reimposed with the judge free to exercise his discretion as to whether or not the sentences would be consecutive or concurrent.

Under the holding in Baker, the judgment of conviction in this case is affirmed but the sentences imposed upon the defendant are set aside. This cause is remanded for re-sentencing of the defendant with the trial court directed to exercise its discretion as to whether the sentences to be imposed on the two counts are to run consecutively or concurrently.

All concur.


author: ROBERT W. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. John H. GRISCO, Appellant.
    No. 27758.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Thomas M. Larson, Public Defender, Richard G. Roth, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT W. WELBORN, Special Judge.

John Grisco was charged by indictment by a Jackson County Grand Jury with second degree murder in the shooting death of Mary Ann Holden. On a jury-waived trial, the court found Grisco guilty of manslaughter and fixed his punishment at eight years’ imprisonment.

A party on August 17, 1974, in an apartment at 3942 Paseo in Kansas City, terminated in the shooting of Mary Ann Holden by John Grisco, resulting in the death of Ms. Holden. Present at the shooting in addition to Grisco and the victim were Jean Ferrell, who described Grisco as her “boyfriend,” and Andre Holden, the son of Jean. Ms. Holden and Ms. Ferrell were sisters. The shooting culminated an argument between Grisco and Ms. Holden over Grisco’s bringing the .45 caliber pistol used in the shooting into the apartment and “leaving it laying around loaded.”

Andre Holden and Ms. Ferrell testified at the trial that John Grisco fired the shot which resulted in the death of Ms. Holden. A police officer in the vicinity whom Andre told of the shooting shortly after it occurred testified that he saw a man whom he later found to be John Grisco leaving the apartment building with a weapon in his hand and that he placed Grisco under arrest.

The sole ground of error on this appeal arises out of the following which occurred after the state had closed its case in chief and the defense counsel had moved for a directed verdict:

“MR. SIMONS (defense attorney): First of all, it has been my careful observation during the course of this trial that while much has been said about a shooting and much has been said about a man named John Grisco, no one has yet identified the defendant as that individual. I would, therefore, move that the case against this gentleman be dismissed as no evidence has come in that he was the person who stood in that room, and he is the person who pulled the trigger. I believe a review of the record would reveal that fact.

******

“THE COURT: * * * What does the State say about the man being identified as the man that did the shooting?

“MR. ROSEN (prosecuting attorney): I think he has properly been identified by the witnesses. I think Andre Holden and Jean Ferrell said they were present, and that John Grisco did, in fact, fire the shots that killed Mary Ann Holden.

“THE COURT: His point is how do we know that this man sitting here is John Grisco if you never asked them to identify him?

“MR. ROSEN: I believe I did ask who fired the shots, and they did say John Gris-co.

“THE COURT: I am not sure you did. I don’t know. I never had this come up before, because — if you didn’t ask them to identify the defendant, it’s the first time I ever tried one where the Prosecutor didn’t ask the witness to identify a defendant. I don’t know if I had it come up before — I don’t know if we can assume if the defendant named as John Grisco, the fact the witnesses referred to John Grisco, they are talking about the same person or not.

“MR. SIMONS: Your Honor, I would suggest that in a case of this nature and a case of this seriousness it’s a rather broad assumption that because a man is sitting at the counsel table he is necessarily the person who is referred to by witnesses.

“THE COURT: We will take a recess. If you want to get a witness in, I will let you reopen your case.

“MR. ROSEN: All right. Thank you, Your Honor.

“RECESS

“THE COURT: All right. Are you ready to proceed?

“MR. ROSEN: We are, Your Honor.

“THE COURT: Are you requesting leave to reopen your case?

“MR. ROSEN: The State is requesting permission at this time to reopen its case.

“THE COURT: Over the objection of defendant leave is granted.

“Did you want to object more specifically?

“MR. SIMONS: Only to state, Your Hon- or, the State of Missouri has rested. The burden is on the State to prove its case in chief. The defendant is owed the full measure of the State’s proof. If it has failed it is not the duty of the Court or anybody else to advise the State. The State rested its case, concluded its case, and failed to prove its case. I object at this time and ask for a mistrial at this time to cure the injustice done the defendant if the State is given leave to reopen its case.

“THE COURT: Thank you.

“State is given leave to reopen its case.

“STATE’S EVIDENCE (CONTINUED)

“ANDRE HOLDEN, previously called as a witness on behalf of the plaintiff, State of Missouri, being first duly sworn by the Deputy Clerk of the Court, was recalled to the witness stand, and testified further as follows:

“REDIRECT EXAMINATION BY MR. ROSEN:

“Q. Mr. Holden, you are still under oath. On the night—

“THE COURT: What is your name?

“THE WITNESS: Andre Holden.

“THE COURT: You have testified here previously?

“THE WITNESS: Yes.

“MR. ROSEN: Do you require that he be resworn?

“THE COURT: No. I require he be reid-entified, so the record will show who is talking.

“Q. (By Mr. Rosen) Mr. Holden, on the night of August 17th, 1974, you have testified that you were present at 3942 Paseo when Mary Ann Holden was shot and killed, is that correct?

“A. Yes.

“Q. Is the person who you witnessed fire the shot that killed Mary Ann Holden present in the courtroom today?

“A. Yes.

“Q. Would you point him out, please?

“A. It’s the defendant, John Grisco.

“Q. I want you to describe him and his place at the table.

“A. He is sitting at the side of the District Attorney.

“Q. Apparently you are referring to Mr. Simons?

“A. That’s right.

“MR. SIMONS: I object.

“THE COURT: The District Attorney is the one that is asking you questions. Do you want to answer the question again?

“Q. (By Mr. Rosen) Where is the person who you have just referred to as being John Grisco?

“A. He is sitting at the table opposite the Prosecuting Attorney.

“Q. I am the Prosecuting Attorney, Mr. Holden. Are you referring to the gentleman seated first at the table?

“A. Yes.

“MR. SIMONS: I object to this as leading. Why don’t he stand behind the defendant and ask him if that is the man, if he wants to lead the witness?

“THE WITNESS: You said the District Attorney is asking me questions.

“THE COURT: Yes. That is him over there. You said—

“THE WITNESS: This is the District Attorney (indicating).

“THE COURT: No. That is him over there, see him, standing?

“THE WITNESS: Well, he is sitting next to the Prosecuting Attorney.

“THE COURT: Would you get — if you see the man in the courtroom that you say fired the fatal shot, will you get out of the chair and reach a point where you can point to him?

“THE WITNESS: Yes.

“THE COURT: All right. That is him?

“THE WITNESS: Yes.

“MR. ROSEN: Let the record show that—

“Q. (By Mr. Rosen) And you know that man by what name?

“A. John Grisco.

“Q. He was the man present that evening—

“A. Yes.

“Q. —who fired the shots?

“A. Yes.

“MR. ROSEN: Let the record show Mr. Holden has identified John Grisco as being seated at the counsel table, and as the defendant.

“I have no further questions.

“MR. SIMONS: I have no questions.

“THE COURT: You may step down.”

Appellant’s point on this appeal is stated as follows:

“THE COURT COMMITTED REVERSIBLE ERROR IN PERMITTING THE PROSECUTING ATTORNEY TO ASK LEADING AND SUGGESTIVE QUESTIONS OF THE STATE’S WITNESS ANDRE HOLDEN WHEN THE STATE WAS PERMITTED TO REOPEN ITS CASE FOR THE PURPOSE OF IDENTIFYING THE DEFENDANT, AN ESSENTIAL ELEMENT OF PROOF WHICH WAS OVERLOOKED DURING THE STATE’S CASE IN CHIEF.”

There is no merit in this assignment. There is no question that Andre Holden was acquainted with appellant. In his original testimony he referred to Grisco by name, said that he had known him since February 1974, and that Grisco was involved in “some sort of romantic relationship” with his mother. The confusion of the witness when recalled upon the reopening of the state’s case was not over the identity of the defendant, but over the role of the various attorneys. The definitive identification of the defendant by the witness was the result of a direction by the court, not a question of the prosecuting attorney to which appellant’s counsel objected as leading.

The ultimate answer, however, to the assignment of error is to be found in the fact that, after his motion for directed verdict had been overruled, the appellant took the stand and testified that he held the gun at the time of the firing of the fatal shot. He claimed that the gun discharged accidentally when Ms. Ferrell knocked his arm, but he clearly acknowledged that he was the person charged with the offense. See State v. Grey, 525 S.W.2d 367, 370[8 — 10] (Mo.App.1975).

Appellant makes oblique reference to the court’s permitting the state to reopen its case and to the court’s participation in the interrogation of Holden, but he has not assigned either as a ground of error and has not briefed either claim. Therefore, nothing has been presented for review by this court on either on these grounds.

Judgment affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Anne Doris DUNCAN (Crookshanks), Petitioner-Respondent, v. James Quentin DUNCAN, Respondent-Appellant.
    No. KCD 27846.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.

      Charles W. Spooner, North Kansas City, for respondent-appellant.
    Jon M. Krebbs, Kansas City, for petitioner-respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges. '
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment in modification of decree of divorce and custody of minor children.

A divorce action between these parties resulted in a decree of divorce to James Quentin Duncan May 17, 1968. Custody of their minor children, Angela Anne Duncan, age four years, and Troy Quentin Duncan, age two years, was awarded to James Quentin Duncan. Anne Doris Duncan was awarded temporary custody of the children for one weekend each month and two weeks during the summer months with right of visitation at reasonable times and for reasonable lengths of time.

On July 19, 1974, Anne Doris Duncan Crookshanks filed her Motion to Modify Decree of Divorce As To Custody, praying that she be granted the care and custody of the children, now 10 and 8 years of age, alleging:

“That since the rendering of the divorce decree there has been a change of conditions between the parties sufficient to warrant the modification of the divorce decree, to-wit:

“A. The defendant-respondent is possessed with a violent temper and has disciplined the children harshly on numerous occasions.

“B. The defendant-respondent has continually shown partiality towards Angela thereby causing fear, resentment and distrust in Troy which has manifested itself in an extreme nervous condition.

“C. The defendant-respondent refuses to allow visitation by plaintiff-petitioner except for one weekend a month and refused to allow plaintiff-petitioner to have temporary custody of the children for two weeks in the summer during 1968, 1969, 1970, 1971 and 1972.

“D. That the defendant-respondent constantly attempts to turn the children against plaintiff-petitioner and has told the children that if they live with plaintiff-petitioner they will never see him again.

“E. That the children have often requested to live with plaintiff-petitioner and have exhibited reluctance and anxiety on being returned to defendant-respondent.

“That since the granting of the divorce the plaintiff-petitioner has remarried, that she can provide an adequate home for the raising of two minor children, that she is not now employed and therefore can be present in the home at all times, that her present husband has stable employment and is providing a suitable home for the plaintiff-petitioner.”

Trial was accorded on the motion November 27, 1974. Mrs. Crookshanks and her husband as of December 15, 1972, Larry A. Crookshanks, testified in support of her motion. James Quentin Duncan and his wife as of June 26, 1968, Karen Rinehart Duncan, testified in opposition to the motion. Also in evidence by agreement of the parties were two reports, each styled “Court Study,” purporting to be a social summary covering the parties, their children, and their homes, prepared by a social service worker in the Platte County Division of Family Services. (See Section 452.390, Laws 1973, effective January 1, 1974.)

During the testimony of Mrs. Crook-shanks, an objection was sustained against her stating what Angela may have told her with respect to where she preferred to stay. Counsel for Mr. Duncan observed, “[t]he children are available here today for the Court’s examination”; counsel for Mrs. Crookshanks observed, “[t]he children are here, and I’m sure they can be cross-examined”; and the court stated, “I’ll talk to the children myself after while if I have permission from both of you to do it.” Both counsel responded, “Yes, sir.”

Prior to resting movant’s case, her counsel asked the court “to meet with the children and discuss these matters * * * in front of the court reporter, in order for the court to elicit from them the same reasons that they wish to live with Mr. and Mrs. Crookshanks, as they have indicated to Mr. and Mrs. Crookshanks.” The court responded, “I’ll talk to the two children, but I will not talk to the two children with the court reporter present. If I talk to the two children it’s going to be between the two children and myself, and individually, not together. So, we’ll take a recess, and let me talk to the little girl first, and then I’ll talk to the boy”; whereupon, the court went in recess after which it reconvened for the case in defense of the motion.

The judgment from which this appeal was taken was entered January 15, 1975: “ * * * the original order of divorce is modified in that the care, custody and control of Angela Anne Duncan and Troy Quentin Duncan is granted to the Mother, Anne Doris Duncan (Crookshanks), with reasonable rights of visitation to the Respondent Father, James Quentin Duncan, said reasonable visitation shall include that James Quentin Duncan shall have the children on alternate weekends from Friday at 6 P.M. until Sunday evening at 6 P.M., and shall have custody and control of the children for a two week period during vacation months * * *

Section 452.410, Laws 1973, effective January 1, 1974, provides: “The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.”

Consistent with the foregoing statute, appellant contends (I) and (II) that the evidence of change of circumstances and whether modification is in the best interests of the children is not sufficient as a basis for the court to modify its prior custody decree.

Dispositive of this appeal, however, is appellant’s contention (III) that the court erred in conducting nonrecord interviews in chambers with the children without presence of counsel, and in considering the product of such interviews as evidence on the issues in the case.

Section 452.385, Laws 1973, effective January 1, 1974, provides: “The court may interview the child in chambers to ascertain the child’s wishes as to his custodian and relevant matters within his knowledge. The court shall permit counsel to be present at the interview and to participate therein. The court shall cause a record of the interview to be made and to be made part of the record in the case.”

It is clear on the record that the court exercised the discretion accorded by Section 452.385, supra, and interviewed the children in chambers. It is clear also that the court did not cause a record of the interview to be made and to make it a part of the record in this case. Insofar as the record shows, neither did the court accord permission to counsel to be present and to participate in the interview.

The foregoing circumstances demonstrate that the clear and unambiguous provisions of Section 452.385, supra, were violated, and such violation was error in this case.

Any consideration given by the court to the children’s unrecorded testimony would be improper because it would not be supported by the record. The failure to preserve testimony elicited from the children under the circumstances precludes meaningful review with respect to whether their testimony may have furnished the court the basis, in whole or in part, for the indispensable finding under Section 452.410, supra, that a change has occurred in the circumstances of the children or their custodian and that modification of the prior custody decree is necessary to serve their best interests. For a similar situation, see Roper v. Roper, 461 S.W.2d 330 (Mo.App.1970), where the trial court erred because it was apparently actuated in its modification of a custody decree by facts that did not appear in the record but probably were ascertained in off-record interviews between judge and child; and because of the incomplete record, the appellate court on review was unable to enter a judgment concluding the case as authorized by Rule 73.01, V.A.M.R. Cf. Lipsey v. Lipsey, 464 S.W.2d 529, 534[8] (Mo.App.1971), where failure to record an in-chambers interview with the children in a custody proceeding was excused as harmless error in the circumstances; but note that the law then in force, Chapter 452, RSMo 1969, did not mandate a record of any such interview.

In summary, under Missouri’s Dissolution of Marriage Code, Sections 452.300 to 452.415, Laws 1973, effective January 1, 1974, and particularly Section 452.385, supra: If the court elects to interview a child in chambers to ascertain his wishes as to his custodian and relevant matters within his knowledge, the court must follow the mandate of the statute and permit counsel to be present and to participate, and cause a record to be made and to be made a part of the record of the case; if the court makes no such election, then the statute has no application.

Judgment reversed and cause remanded.

All concur.


author: FONES, Chief Justice.

text:
    Ellen Davies RODGERS, Appellant-Plaintiff, v. James H. WHITE et al., Appellees-Defendants.
    Supreme Court of Tennessee.
    Sept. 8, 1975.

      James M. Maniré, William W. Dunlap, Jr., Memphis, for appellant.
    C. Cleveland Drennon, Jr., County Atty., Leo J. Buchignani, Buchignani & Greener, John R. Johnson, III, Buchignani & Greener, Memphis, Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, for appellees.
   OPINION

FONES, Chief Justice.

All parties have appealed. White, et al (hereinafter defendants) question the standing of Ellen Davies Rodgers (hereinafter plaintiff) to bring this suit as an election contest. Mrs. Rodgers asserts that the question submitted to the electorate of Shelby County on August 1, 1974, involving the restructure of Shelby County Government, violated T.C.A. § 2-514(e) and renders that election void.

The learned Chancellor held that plaintiff had standing to maintain the action as an election contest and that the question on the ballot did not violate the provisions of T.C.A. § 2-514(e). We affirm.

I

Plaintiff alleged that she had charge of a campaign for the rejection of the Shelby County restructure question submitted to the people of Shelby County, Tennessee, on August 1, 1974. The ground asserted by defendants in their motion to dismiss, that plaintiff had no standing to prosecute the suit, is equivalent to a demurrer and the factual allegation in the complaint that plaintiff had charge of the campaign opposing restructure must be taken as true. State ex rel Hall v. Minimum Salary Dept. of A. M. E. Church, Inc., 477 S.W.2d 11 at 13 (Tenn.1972). Thus it is unnecessary to discuss the contentions of defendants with respect to the affidavit filed by plaintiff, merely supporting said allegation, three (3) days prior to the oral argument of the motion to dismiss in the Chancery Court.

T.C.A. § 2-1701 provides, inter alia:

“ * ⅜ * Any campaign committee or individual which has charge of a campaign for the adoption or rejection of a question submitted to the people may contest the election on the question. [Acts 1972 (Adj.S.), ch. 740 § 1.]”

Defendants say that a suit by a private citizen to have an election declared void is in the nature of a quo warranto proceeding and must be brought in the name of the state.

We agree with the Chancellor that the gravamen of this action is analogous to Hatcher v. Bell, 521 S.W.2d 799 (Tenn.1974) wherein the constitutional disqualification of the successful candidate to hold office was asserted as a ground to void the election. We held that circumstance could be the predicate of an election contest as well as a quo warranto proceeding.

In the present posture of this case, plaintiff has standing to contest the Shelby County restructure question.

II

This brings us to the issue of compliance with the provisions of T.C.A. § 2-514(e). The title of said section is “Arrangement of Material on Ballots” and subsection (e) reads as follows:

“Whenever a question is submitted to the vote of the people, it shall be printed upon the ballot before or at the top right of the list of candidates, followed by the words ‘Yes’ and ‘No’, so that the voter can vote his preference by making a cross mark (X) opposite the proper word. If the full statement of a question is more than three hundred (300) words in length, the question shall be preceded by a clear, brief summary of the proposal not more than two hundred (200) words in length. The summary shall be written by the attorney-general for questions submitted to the voters of the entire state or of more than one county or by the county attorney of the county in which the question is to be voted upon for questions to be submitted to the voters of one (1) county or any part of a county.”

The Legislative Act involved is Chapter 260 of the Private Acts of 1974. The first grammatical paragraph of Section One of said act is as follows:

“SECTION 1. Subject to approval of a majority of the voters of Shelby County, voting in the referendum to be held August 1, 1974, the government of Shelby County is hereby restructured and established in the manner and form hereinafter provided:”

Section One continues for approximately twenty-two (22) pages, divided into four (4) articles, numerous sections and sub-sections, providing a governmental structure for Shelby County consisting of an Executive branch headed by a county mayor, and a Legislative branch of eleven (11) members. The powers, functions, and duties of the Executive branch, the Legislative branch and the departments, divisions and bureaus attached thereto are set out explicitly. Budget procedures and other appropriate subjects are also covered. This briefly described remaining portion of Section One may aptly be referred to as the Charter for a restructured government of Shelby County. It is apparent, from a perusal of Section One, that it would be physically impossible to put it on the ballot, in toto, in print of sufficient size to be readable.

Following the charter provisions appears the following, designated as Section Two of the Act:

“SECTION 2. Section 1 of this Act shall have no effect unless the same shall be approved by a majority of the voters voting in an election to be held for such purpose. At the August general election, 1974, the County Election Commission shall place on the ballot for such general election the question as to whether or not the provisions of Section 1 of this Act shall be accepted or rejected by the voters of Shelby County. The ballots used in such election shall have printed thereon the following question: Shall Shelby County Government be restructured to be a Government consisting of an Executive Branch headed by a County Mayor and a Legislative Branch consisting of the eleven (11) members of the Shelby County Quarterly Court (Justices of the Peace)?
Yes
No”
* * * * * *

The question placed on the ballot was in the exact words mandated by the Legislature, as quoted above.

Plaintiff contends that the “question” as set out in Section Two above was not preceded by a clear, brief summary of the proposal. The question that appeared on the ballot consists of thirty-nine (39) words, and as we read the statute a clear, brief summary is not required, unless the statement of the question exceeds three hundred (300) words.

Plaintiff advances several ingenious arguments in an effort to show non-compliance with T.C.A. § 2-514(e). Said contentions assume that Section One of the Act, including the approximately twenty-two (22) pages of “Charter” provisions, is the “question” for the purpose of applying T.C.A. § 2-514(e).

Our reading of the statute convinces us that the word “question” as used therein refers to the question that is placed upon the ballot. The word “proposal” in the second sentence of the sub-section clearly means the complete proposition, to be approved or rejected by the people.

Applied to the case before us, the “question” is the thirty-nine (39) words framed by the Legislature and placed on the ballot. The “proposal” is Section One of the Act, in toto.

We must presume that the Legislature having drafted the question to appear on the ballot, submitting to the people the proposal to restructure the government of Shelby County, considered the thirty-nine (39) words used to be a “full statement” of the question.

Admittedly the expression “full statement” of the question in the second sentence causes us some concern, because of the possibility of an intent that it be construed as having the same meaning as “proposal.” However, if so construed, it would necessarily follow that the Legislature intended, in enacting T.C.A. § 2-514(e) that every proposal submitted to the people must be copied in toto upon the ballot and, if more than three hundred words, to be preceded by a two hundred word summary. That intent is negated by the law that prevailed at the time said sub-section was enacted.

Pidgeon-Thomas Iron Company v. Shelby County, 217 Tenn. 288, 397 S.W.2d 375 (1965) approved the abbreviated question that appeared on the ballot, as a proper statement of a lengthy “proposal” of the Shelby County Quarterly Court to levy a sales tax. The Court held that the test of the sufficiency of the abbreviated question was whether or not the notice on the ballot conveyed a reasonable certainty of meaning so that a voter could intelligently cast a vote for or against the proposal with full knowledge of the consequence of his vote.

We reason that if the Legislature had intended that every proposal must be copied in toto, they would have drafted a one sentence section clearly and affirmatively so stating, and adding the requirement that if it exceeded three hundred words it should be proceeded by a two hundred word summary. Obviously T.C.A. § 2-514(e) does not evince that purpose.

Finally, we observe, as did the learned Chancellor, that there is no claim that there was any fraud nor that any voter was confused or mislead. The proposal in toto was widely publicized as were the claims of the proponents and opponents. The question, as drafted by the Legislature, gave the voters of Shelby County sufficient information to enable them to cast their vote intelligently, knowing the consequence thereof.

The decree of the Chancery Court of Shelby County is affirmed. The costs are adjudged against the plaintiff.

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

OPINION ON PETITION TO REHEAR

A respectful and earnest petition to rehear has been filed in this cause.

We have carefully examined the petition and brief in support thereof and find that no argument is made the substance of which was not presented heretofore.

We sufficiently stated our views upon the issues raised in our original opinion.

The petition to rehear is denied at the cost of appellant.


author: PONES, Chief Justice.

text:
    STATE of Tennessee, Petitioner, v. Johnny COLLINS, Respondent.
    Supreme Court of Tennessee.
    Sept. 29, 1975.

      R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, for petitioner.
    J. Gregory O’Connor' Jim D. Owen, Knoxville, for respondent.
   OPINION

PONES, Chief Justice.

The primary issue in this case is the authority of a trial judge to pass upon the constitutionality of a Legislative Act, where its validity or invalidity affects the charge to be given the jury in the trial of a criminal case.

Respondent was convicted of rape and sentenced to imprisonment in the penitentiary for twenty (20) years. His codefend-ant was also found guilty of rape and sentence to ten (10) years. Both appealed to the Court of Criminal Appeals. The majority of a panel of that Court affirmed the judgment as to the co-defendant and the judgment as to respondent was reversed and remanded for a new trial. Only respondent Collins is before this Court by virtue of the State’s petition for certiorari.

The alleged offense occurred on August 25, 1972. The trial was conducted on May 14 and 15, 1973. The defense was based upon the alleged consent of the prosecutrix. The trial judge instructed the jury that if they found the defendants or either of them guilty of rape, they should “fix his, or their punishment at imprisonment in the penitentiary for life, or for any time not less than ten years . . . ”

That was the punishment prescribed by T.C.A. § 39-3702, prior to the enactment of Chapter 192, Public Acts of 1973, Section 5, which reduced the minimum punishment for rape of a female over twelve years of age to not less than three (3) years. The Governor signed that Act and it became effective on May 8, 1973, seven (7) days before the trial judge charged the jury in this case. Neither the trial judge nor any of the lawyers in the case were aware of the passage of that Legislative Act, at the time of the trial.

On motion for a new trial, it was asserted on behalf of Collins that the jury should have been charged that the minimum punishment was three (3) years as provided in Section 5 of the 1973 Act, rather than ten (10) years, and that this was reversible error entitling Collins to a new trial.

Generally, if a penal statute is repealed or amended by subsequent legislation, an accused will still be tried under the law that was in effect at the time the offense was committed. T.C.A. § 39-114. However, the last sentence of that section provides that if the subsequent act reduces the penalty, punishment shall be in accord with that Act.

The trial judge overruled the motion for a new trial on the basis that Chapter 192, Public Acts of 1973, was unconstitutional and void because the body of the Act was broader than the caption. Since it was void, he reasoned that no error had been committed in his instruction to the jury as the prior valid act, under which he charged the jury, remained in effect. McMinn County Board of Education v. Anderson, 200 Tenn. 333, 292 S.W.2d 198 (1956). On February 4, 1974, in State v. Hailey, 505 S.W.2d 712 (Tenn.1974), this Court ruled that the Act was, in fact, unconstitutional and void.

The majority of the Court of Criminal Appeals held that failure of the trial judge to charge what was referred to as the “current applicable” minimum sentence of three (3) years was erroneous and prejudicial. In arriving at that conclusion it was said that: (1) a Court should not voluntarily pass upon constitutional questions that are not properly before it, (2) an unconstitutional act is not void but voidable only, (3) that Chapter 192, Public Acts of 1973 was presumably a valid enactment until the Supreme Court of Tennessee decreed otherwise on February 4, 1974, in State v. Hailey, supra, and (4) that the 1973 Act was the law at the time of the trial, and it was not within the competence of the trial court to raise the issue sua sponte and hold the Act unconstitutional.

The dissenting opinion agreed that the 1973 Act should have been charged, but would have reduced Collins’ sentence to three (3) years as opposed to granting a new trial.

We disagree with both opinions.

I.

No one can successfully question the authority or competence of a Tennessee trial judge to rule upon the constitutionality of a statute, when raised by one of the parties as a necessary issue in the litigation. The issue of the constitutionality of Acts of the Legislature are traditionally raised and determine, first, in the trial courts of this State.

The views of our sister states on this question are accurately summarized in 16 C.J.S. Constitutional Law § 93, p. 303:

“. . . it is the rule, under the American constitutional theory, that inferior courts, including even those of original jurisdiction, have power to pass on the validity of a statute and to declare it unconstitutional in proceedings before them in the courts of judicial administration. The exercise of such power, however, should be carefully limited, and avoided if possible, and, unless it appears clearly beyond a reasonable doubt that the statute is unconstitutional, it is considered the better practice for the court to assume that it is constitutional until the contrary is declared by a court of appellate jurisdiction, especially where the statute is of great importance and far-reaching effect, has been in effect for an appreciable period of time, and has been followed in innumerable cases involving the rights of property. In a proper case, however, the court should not hesitate to determine the constitutionality of a statute, if this be necessary.”

The quoted text is supported by the following cases: People ex rel. Wogan v. Rafferty, 77 Misc. 258, 136 N.Y.S. 4 (Sup.Ct.1912) (reversed on other grounds, 208 N.Y. 451, 102 N.E. 582 [1913]); People v. Marcello, 25 N.Y.S.2d 533 (Mag.Ct.1941); State v. Packard-Bamberger & Co., 16 N.J.Misc. 479, 2 A.2d 599 (1938).

In Lent v. Tillson, 140 U.S. 316, 11 S.Ct. 825, 35 L.Ed. 419 (1891), Mr. Justice Harlan, responding to a contention that a California state court of original jurisdiction was without the power to adjudge a new tax statute to be unconstitutional, said:

“. . . The judge or judges of that court were obliged, by their oath of office, and in fidelity to the supreme law of the land, to refuse to give effect to any statute that was repugnant to that law, anything in the statute or the Constitution of the State to the contrary notwithstanding.” (140 U.S. at 330, 331, 11 S.Ct. at 830)

He continued with the following quote from the Supreme Court of California:

. . But the power to do this is necessarily involved in the power of the court to act at all.”

II.

Was it necessary that the trial judge consider the constitutionality of the statute in this case?

It is the duty and obligation of the trial judge to conduct a trial that is free of prejudicial error and to charge the applicable law. The statute prescribing the crime and punishment pursuant to which a defendant is being tried is drawn directly into issue. Where a new act is passed amending or replacing an existing criminal statute and the rights of a defendant on trial are affected by said statute, the trial judge is faced with the necessity of making a determination as to its constitutionality. If he assumes it to be constitutional and this Court decides otherwise the defendant must be granted a new trial, if adversely affected. In such circumstances, the power and the duty to determine the validity of a legislative act necessarily confronts a trial judge. He should exercise great care and caution in declaring any act of the Legislature unconstitutional, in accord with the admonitions herein cited. But, where the act is invalid on its face, as here, he should rule accordingly.

III.

Was it error for the trial judge to consider the constitutionality of the 1973 Act sua sponte?

It is incumbent upon the courts to apply the controlling law, whether or not cited or relied upon by either party. Simmons v. State ex rel. Smith, 503 S.W.2d 103 (Tenn.1973), cf. Smith v. Norris, 218 Tenn. 329, 403 S.W.2d 307 (1966).

No cases were cited and none can be found that limit judicial consideration of the law to cases or propositions of law urged by the parties. The idea that apparently exists in some segments of the bench and bar that courts cannot or must not give sua sponte consideration to the law applicable to the case on trial, or on appeal, is an anachronism, if indeed, it ever had validity in American jurisprudence.

Bricker v. Sims, 195 Tenn. 361, 259 S.W.2d 661 (1953) was relied upon by the Court of Criminal Appeals for the application to this case of the principle that an unconstitutional act is not void, but voidable only. As we read the case, it holds that ministerial officers are not permitted to question the validity of a statute because the peace and good order of society will not admit of such officers being the judge of the constitutionality of legislative acts, a purely judicial function.

Bricker relies upon Roberts v. Roane County, 160 Tenn. 109, 23 S.W.2d 239 (1929), for the quote that:

“An unconstitutional act is not void but voidable only and ministerial officers are therefore authorized to treat every act of a Legislature as prima facie valid and they are not liable for any acts committed under an unconstitutional statute on account of its unconstitutionality.” 259 S.W.2d at 664.

The above quote is headnote twelve of Roberts. In Roberts, the Court had under consideration a statute providing the compensation for sheriffs, which it had determined to be unconstitutional. The issue of equitable estoppel was raised, based upon the fact that the county had paid and the sheriff received the compensation provided by the invalid act, in good faith and without collusion. In the course of the opinion in Roberts the court approves the rule,

“. . . that an unconstitutional statute is not a law, does not of itself confer any rights, duties or obligations, and is ‘in legal contemplation as inoperative as though it had never been passed.’ Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 1125, 30 L.Ed. 178. But it is recognized that parties may so deal with each other upon the faith of such a statute that neither may invoke the aid of the courts to undo what they themselves have done.” (160 Tenn. at 123, 124, 23 S.W.2d at 243)

The rule that an act is not void, but voidable only applies when the actions under consideration are those of ministerial officers, taken prior to a judicial determination of the constitutional status of the act.

The rule that an unconstitutional statute is not a law, does not confer any rights, and is void ab initio applies to this case, wherein the question before the court was the appropriate statutory punishment for the criminal offense with which defendant was charged.

The foregoing conclusions are inescapable from a reading of the following cases and others too numerous to mention: Lawrence County v. Hobbs, 194 Tenn. 323, 250 S.W.2d 549 (1952); Matill v. City of Chattanooga, 175 Tenn. 65, 132 S.W.2d 201 (1939); Henry County v. Standard Oil, 167 Tenn. 485, 71 S.W.2d 683 (1934); O’Brien v. Rutherford County, 199 Tenn. 642, 288 S.W.2d 708 (1956); Williams v. Carr, 218 Tenn. 564, 404 S.W.2d 522 (1966) and Cooper Realty Company, et al. v. Claiborne C. Hall, et al., released June 16, 1975, Western Division.

V.

The Court of Criminal Appeals said, “It is irrelevant that, as stated during discussion of the new trial motion, the trial judge and counsel were unaware that the minimum punishment had been reduced from ten years to three years.”

We agree. The trial judge could not be expected to reach the question of whether to charge the jury that the punishment was in accord with a seven day old act of which he had no knowledge, or to charge the law it sought to replace. When brought to his attention on the motion for a new trial, he performed his duty as prescribed in the oath of office, made a determination that the 1973 Act was unconstitutional, and that he had, in fact, charged in accord with the existing valid statutory law.

As noted by the Court of Criminal Appeals, following this Court’s declaration in State v. Hailey, supra, that Chapter 192, Public Acts of 1973 was unconstitutional, the Legislature enacted Chapter 461 of the Public Acts of 1974, wherein the minimum punishment for the offense involved herein was restored to not less than ten (10) years. Notwithstanding the fact that the charge to the jury on a second trial would be identical to the charge given on the first trial, the Court of Criminal Appeals held that Collins was entitled to a new trial, because,

“. . . there is no way of knowing what sentence the jury would have given him if they had been correctly instructed that the minimum punishment was three years . . . ”

The 1973 Act was void ab initio and the jury was correctly instructed that the minimum punishment was ten (10) years. The minimum punishment remains ten (10) years under the 1974 Act. Any confusion about the correct disposition of this case was completely resolved by the decision of this Court in State v. Hailey, supra, rendered while this case was on appeal to the Court of Criminal Appeals.

VI.

It has come to our attention that another panel of the Court of Criminal Appeals held in Crigger et al. v. State, Maury County Criminal, released in March, 1974, that to hold the 1973 Act void ab initio would work an automatic reversal of all convictions rendered between the effective date of the 1973 Act and our opinion in State v. Hailey, supra, with catastrophic results to the administration of criminal justice. We disagree. In those cases wherein the trial judge charged a minimum punishment of ten (10) years they were correctly charged and are not entitled to a new trial. It is immaterial whether or not the trial judge made an affirmative determination of the constitutionality of the 1973 Act. In those cases wherein the trial judge charged a minimum punishment of three (3) years, a defendant has no standing to complain of a charge more favorable to him than the correct charge. Wattingham v. State, 37 Tenn. 64 (1857); Murphy v. State, 47 Tenn. 516 (1870); Frazier v. Elmore, 180 Tenn. 232, 173 S.W.2d 563 (1943), and Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900 (1944).

The Court of Criminal Appeals is reversed and the conviction and judgment entered thereon in the trial court is affirmed.

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


author: SANDERS, Judge.

text:
    DYNAMIC MOTEL MANAGEMENT, INC. v. Samuel G. ERWIN.
    Court of Appeals of Tennessee, Eastern Section.
    June 5, 1975.
    Certiorari Denied by Supreme Court Sept. 22, 1975.

      Thomas S. Kale and Fred H. Moore, of Spears, Moore, Rebman & Williams, Chattanooga, for appellant.
    Harry Berke, of Berke, Berke & Berke, Chattanooga, for appellee.
   OPINION

SANDERS, Judge.

Appellant has appealed from a jury verdict of treble damages for procuring the breach of a contract under T.C.A. § 47 — 15— 113.

The original Plaintiff and Appellant is the owner of the Downtowner Motel in Chattanooga and the original Defendant and Appellee is the owner of the Flaming Sword Restaurant which he operates in a portion of the motel leased from the Plaintiff.

The Plaintiff filed suit against the Defendant alleging he had breached the provisions of the lease and sought to recover possession of the premises.

The Defendant answered denying a breach of the lease and filed a cross-action in which he alleged that the Plaintiff induced prospective purchasers of his restaurant to breach their contract to purchase in violation of T.C.A. § 47-15-113 and seeks treble damages under the Code provision.

The case was tried before a jury in the Circuit Court of Hamilton County with The Honorable Samuel H. Payne presiding.

The jury found the issues in favor of the Defendant, both in the original complaint and on the cross-action. The Plaintiff’s suit for possession of the premises was dismissed and the jury fixed the Defendant’s actual damages under the cross-action at $15,-000.00, resulting in a total judgment of $45,000.00.

Plaintiff’s motion for a new trial was overruled and it has appealed and assigned error.

The Plaintiff appealed and assigned error as to the action of the Court and jury on both the issue of the alleged breach of the lease and its right to possession of the premises and the cross-action for treble damages.

Upon argument of the case, however, counsel advised the Court that the question of the Plaintiff’s right to possession of the premises had become moot since the appeal was perfected and the only remaining question for determination by this court was the question of treble damages.

The thrust of the Plaintiff’s assignments of error relating to damages is there is no evidence so support the finding of the jury that Plaintiff had induced the breach of a contract.

T.C.A. § 47-15-113 provides as follows:

“PROCUREMENT OF BREACH OF CONTRACTS UNLAWFUL — TREBLE DAMAGES. — It shall be unlawful for any person, by inducement, persuasion, misrepresentation, or other means, to induce or procure the breach or violation, refusal or failure to perform any lawful contract by any party thereto; and, in every case where a breach or violation of such contract is so procured, the person so procuring or inducing the same shall be liable in treble the amount of damages resulting from or incident to the breach of said contract; and the party injured by such breach may bring his suit for said breach and for such damages.”

The proof shows that the Defendant purchased the restaurant known as the Flaming Sword in June, 1973. At the time he purchased the restaurant the former owner was the lessee of the premises in which it was located and it was necessary to secure the approval of the Plaintiff before the lease could be assigned. In this regard the lease provides as follows: “The parties mutually agree that the Lessees shall not assign this lease or sublet the premises covered by this lease or any portion thereof, without first obtaining the written consent of the Lessor to do so, which consent shall not be unreasonably withheld.”

As a condition to approving the transfer of the lease, the Plaintiff required the Defendant to agree that within 90 days of occupancy he would install a mixed-drink bar and would refurbish the entire restaurant and repair certain furniture so as to upgrade the rating of the restaurant from a “B” to an “A” rating.

The Defendant went into possession of the premises on June 1 but he failed to install the mixed-drink bar and failed to refurbish the restaurant to the satisfaction of the Plaintiff. This led to considerable controversy between the parties, resulting in threats by the Plaintiff to terminate the lease and a desire on behalf of the Defendant to sell the restaurant.

The Defendant and Plaintiff discussed the possibility of the Plaintiff’s purchasing the restaurant but no agreement was ever reached.

The Defendant testified that he had four other prospective purchasers for the restaurant but because the Plaintiff would not agree to transfer the lease he was deprived in each instance of making the sale.

While the proof shows that two of the prospective purchasers were willing to pay the amount the Defendant was asking for the restaurant, there is no proof that a valid, binding contract ever existed between them and the Defendant.

Mr. James L. Jones testified that he was interested in purchasing the restaurant and when he talked with the Plaintiff’s motel manager about approval of transferring the lease he was refused. The pertinent portion of his testimony on direct examination was as follows:

“Q I’ll ask you if you became interested in the purchase of the Downtowner Motel?
“A About a year ago roughly.
“Q The restaurant there?
“A Yes, I approached the Erwins. Well, really, about a partnership in the thing, and they were not interested in the partnership, they wanted to sell out altogether. So they told me to see the innkeeper, a gentleman by the name of Rainwater, and I approached him, and he told me that he would not be interested at all, that the company was going to take the restaurant over, and so that was the extent of it.
“Q Had you and Mr. Erwin agreed on the price—
“A (Interposing) Yes.
“Q —for the restaurant?
“A Yes, $25,000.00.”
On cross-examination he testified:
“Q All right, now, in your purchase price of $25,000.00, what was the profitability of the restaurant that they showed you?
“A Well, in other words, that included the equipment.
“Q All right, did they actually discuss what they paid each month, and what their expenses were each month, and how much their profit was?
“A Well, we really didn’t go into too many details because when I was turned down, you know, there was not much use in going into that.” * * ⅜ * * *
“Q Okay, would it astound you to find out that their outstanding debts to Mr. Paul Georgeson might be in the amount of $14,000.00 or more?
“A Yes.
“Q And for $25,000.00 you might have been buying a lot of trouble, might you not?
“A This could be.
“Q So you would have much, much more considered that figure than simply saying I’ll buy it for twenty-five?
“A Well, like I say, we never really got into the details because there wasn’t no use in it, because it was refused.”

Mr. Larry Culber also testified that he was interested in purchasing the restaurant for $25,000.00 but when he contacted the motel manager about transferring the lease he was advised that approval could not be obtained. As a result of his conversations with the motel manager, he and the Defendant never got into details concerning the sale. On this point he testified:

“Q (Interposing) You were going to buy the assets, I take it?
“A The assets, and the goodwill, that’s all there was.
“Q All right, and wouldn’t you have been interested to know whether or not there was any tax lien on those assets?
“A My C.P.A. would have taken care of that had we kept on going, which is Reece Donaldson, he — I don’t do anything without my C.P.A. checking everything out for me.
“Q He didn’t check this out?
“A We didn’t never get that far.
“Q You didn’t get that far?
“A No, because I was discouraged about it, they just said it couldn’t be bought.”

We think the greater weight of authority supports the proposition of law that before there can be a recovery for interference in the performance or the procurement of the breach of a contract, as contemplated by T.C.A. § 47-15-113, the following criteria must be met:

1. There must be a legal contract.
2. The wrongdoer must have knowledge of the existence of the contract.
3. There must be an intention to induce its breach.
4. The wrongdoer must have acted maliciously.
5. There must be a breach of the contract.
6. The act complained of must be the proximate cause of the breach of the contract.
7. There must have been damages resulting from the breach of the contract.

45 Am.Jur.2d, Interference §§ 3, 4, 5, 6, 7 and 11.

In considering the Plaintiff’s assignments of error, we are mindful that we are reviewing a jury verdict. In the review of a judgment based on a jury verdict the appellate courts do not weigh the evidence or decide where the preponderance lies, but merely determine whether there is material evidence to support the verdict. City of Chattanooga v. Rogers, 201 Tenn. 403, 299 S.W.2d 660; Dorrity v. Mann, 43 Tenn.App. 554, 310 S.W.2d 191.

In determining whether there is material evidence to support the verdict we are required to take the strongest legitimate view of all of the evidence in favor of the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict. D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897. If there is any material evidence to support the verdict it must be affirmed. City of Chattanooga v. Ballew, 49 Tenn.App. 310, 354 S.W.2d 806.

In our consideration of the evidence most favorable to the Defendant, we think it shows that both Mr. Jones and Mr. Culber would have been interested in buying the restaurant for $25,000.00 if the Plaintiff would have consented to an assignment of the lease and because consent was withheld no agreement was ever reached.

Also, we think the proof shows that the Plaintiff had knowledge of Messrs. Jones’ and Culber’s interest in purchasing the restaurant but there was no proof of its knowledge as to the existence of a contract between either of them and the Defendant. Absent knowledge of the existence of. a contract, there could have been no intention to induce its breach.

The assignment of error is sustained.

Judgment of the Trial Court is reversed and the Defendant’s cross-action is dismissed.

The cost of this appeal is taxed to the Appellee.

PARROTT, P. J. (E. S.), and GODDARD, J., concur.


author: WALKER, Presiding Judge.

text:
    Robert MARSHALL, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    April 10, 1975.
    Certiorari Denied by Supreme Court Sept. 2, 1975.
    John C. Littleton, Chattanooga, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Stephen M. Bevil and Robert J. Batson, Asst. Dist. Attys. Gen., Chattanooga, for defendant in error.
   OPINION

WALKER, Presiding Judge.

The defendant below, Robert Marshall, appeals in error from his conviction of robbery by means of a deadly weapon and his sentence of 15 years in the penitentiary.

The state’s evidence showed that on March 11, 1974, at about 9:00 P.M., the defendant entered Stop N Go Market in Chattanooga and robbed the cashier, Mrs. Lois Garrison, with her own pistol of about $150 in the cash register as well as her handbag containing her money and valuables. She was alone in the store at the time of the robbery. The defendant ordered her to lie down in a back room and then fled the store.

Mrs. Garrison positively identified the defendant at the trial. She had previously picked his photograph from four submitted to her by an officer.

Testifying in his own behalf, the defendant denied participation in the robbery and relied on an alibi, saying that he was at home at the time of the robbery. The woman with whom he lived corroborated this testimony. He further said he had never been in the Stop N Go Market but he then admitted that he was arrested there.

Anna Mae Ellis and her son, Willie Ellis, Jr., testified that they saw a man run from the store that night and he was not the defendant. She placed the time at 11:00 P.M. and her son fixed it at about 10:00 or 10:30 P.M. She said Mrs. Garrison was standing behind the counter when the man fled and her son said he saw three people then in the store. By the victim’s testimony, she was lying on the floor in a back room at that time; there were no other people in the store when the robber fled and that the robbery occurred at a different hour.

The jury accepted the state’s theory and resolved the conflicts in the testimony. The evidence does not preponderate against the verdict and the assignment on the weight of the evidence is overruled. See Holt v. State, 210 Tenn. 188, 357 S.W.2d 57.

The defendant says the court erred in instructing the jury that a reasonable doubt was a substantial doubt. The instructions, in part, were:

“If you find that the insistence of the State is established, by the proof beyond a reasonable doubt, it will be your duty to convict the defendant of the offense named or comprehended in this indictment.
“On the other hand, it is the insistence of the defendant that he is not guilty of this crime. If you find this insistence to be established by the proof, or if you have a reasonable doubt as to whether it has been established or not, it will be your duty to acquit him.
“You enter upon the investigation of this case with the presumption that the defendant is not guilty of any crime, and this presumption stands as a witness for him until it is rebutted and overturned by competent and credible proof. ■ It is, therefore, incumbent on the State, before you can convict the defendant, to establish to your satisfaction beyond a reasonable doubt, that the defendant committed the offense of robbery as charged in the indictment.
“Reasonable doubt means an honest misgiving on your part, touching the guilt of the defendant, arising out of the proof in the case, and is such a doubt as your reason entertains and sanctions as a substantial doubt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required, and this certainty is required as to every proposition of proof requisite to constitute the offense.”

The defendant relies on Frazier v. State, 117 Tenn. 430, 100 S.W. 94.

The instructions on this subject were patterned after language in Purkey v. State, 50 Tenn. 26, where the court remarked in dicta that “A reasonable doubt is an honest misgiving as to the guilt of the defendant upon the proof, which the reason entertains and sanctions as a substantial doubt.” In Frazier the Supreme Court disapproved the use of the terms “substantial” and “well-founded” in defining reasonable doubt although the case was reversed for failure to mention reasonable doubt until the concluding paragraph. It does not hold that the use of the term “substantial” in itself is reversible.

The court in a number of places in the instructions charged the jury that before conviction the guilt of the defendant must be proved to the satisfaction of the jury beyond a reasonable doubt. The court’s instructions on reasonable doubt as a whole did not mislead or confuse the jury, but, on the contrary, assisted the jury in understanding the difference between a reasonable doubt and one based on some vague reason. We find no reversible error in the use of “substantial”, but in view of Frazier we think trial judges could well avoid the use of this term in defining reasonable doubt. This assignment is overruled.

The defendant also says the court failed to charge that each material element must be proved beyond a reasonable doubt, relying instead on a mere moral certainty as to each proposition of proof. He also relies on Frazier v. State, supra, for support of this assignment.

The use of this language on moral certainty is approved in Hardin v. State, 210 Tenn. 116, 122, 355 S.W.2d 105. Further, the court stressed reasonable doubt throughout the instructions, particularly on the quantum of proof required on the alibi and identity issues. The charge must be viewed and its fairness determined from a full reading and isolated excerpts should not be taken out of context. See Wallace v. State, Tenn.Cr.App., 500 S.W.2d 629.

All assignments are overruled and the judgment is affirmed.

GALBREATH and DWYER, JJ., concur.


author: O’BRIEN, Judge.

text:
    Chuck BOSWELL, alias James M. Boswell, III, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    July 14, 1975.
    Certiorari Denied by Supreme Court Sept. 2, 1975.

      Billy G. Leffew, Rockwood, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Etrula R. Trotter, Asst. Atty. Gen., Nashville, H. Kenneth Deatherage, Dist. Atty. Gen., Kingston, for defendant-in-error.
   OPINION

O’BRIEN, Judge.

Defendant was convicted by a jury of selling marijuana in the Criminal Court for Roane County, Honorable Lloyd G. McCluen, Judge. His sentence was fixed at not less than one nor more than three years in the State Penitentiary, plus a fifteen hundred dollar ($1,500.00) fine.

On his appeal from the judgment, defendant makes five assignments of error, the first three of which attack the weight and legal sufficiency of the evidence.

Defendant was positively identified by a T.B.I. undercover agent as the individual who sold to him a quantity of substance analyzed and determined to be marijuana, in violation of T.C.A. Section 52-1432(a)(1)(F). In his own defense defendant testified he had never been involved in the sale of marijuana, did not recognize the T.B.I. agent as a person whom he had ever seen before, and, specifically, had not made a sale of marijuana to this State witness.

This evidence created an issue of fact which has been settled by the jury against the contention of defendant. He has failed to carry the burden, imposed on him here, of showing that the evidence preponderates against the jury verdict. Assignments of error 1, 2, and 3, are overruled.

By the fourth assignment it is charged that the trial judge erred in overruling defendant’s motion to quash the indictment based on the grounds he was denied a speedy trial.

Defendant’s complaint is that approximately one year elapsed between the purported offense with which he was charged and the date of the indictment.

Reliance is placed on the 6th Amendment to the Federal Constitution, and Article I, Section 9 of the Tennessee Constitution in asserting the right to a speedy trial. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26, and Pollard v. U. S., 352 U.S. 354, 361, 77 S.Ct. 481, 486, 1 L.Ed.2d 393 are cited as authority to sustain this position.

We disagree. The Dickey case, coming from the state of Florida, involved a defendant who was tried and convicted some eight years after his arrest, in spite of various efforts on his part to have his case brought to trial for a hearing on the merits of the charges against him. Pollard, supra, is mentioned only incidentally, and it appears the statement in the brief is not an exact quotation from the text, in addition to being inapplicable to the facts of the case sub judice. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, points out that the sixth amendment’s speedy trial provision has no application until the putative defendant in some way becomes an “accused”, an event which does not occur until there is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge occurs. Although Marion, supra, dealt with consideration of a Federal indictment, we have not been referred to any authority to the contrary in this state, and we hold that to invoke an individual’s right to a speedy trial under the provisions of Article I, Section 9, of the Constitution of this state, there must be either a formal indictment or presentment, or the actual restraints imposed by arrest and holding to answer a criminal charge.

Defendant says it was error to overrule a plea in abatement charging the indictment was fatally defective in form and sufficiency. The indictment named defendant as Chuck Boswell, alias. The plea in abatement stated his true name to be James M. Boswell III.

This assignment must be overruled. There is no entry on the minutes of the court showing the action of the trial judge on the plea in abatement. We cannot look to the Bill of Exceptions to determine this question. Russell & Sweeney v. State, Tenn.Cr.App., 499 S.W.2d 945. Moreover, T.C.A. Section 40 — 1803, provides inter alia, that a person may be indicted under any name by which he is generally known. The transcript of a pretrial hearing on the plea in abatement is included in the Bill of Exceptions. The trial judge made a finding of fact that defendant was known in grammar school and among his friends as Chuck Boswell, and to his family as Chuckie Boswell. A finding of fact by the trial judge is conclusive unless this court finds the evidence preponderates against the judgment. Mitchell v. State, Tenn.Cr.App., 512 S.W.2d 661. We concur with the trial judge’s finding. The likelihood of defendant being again placed in jeopardy by prosecution for the same offense is vitiated by the record in this case.

The judgment of the trial court is affirmed.

GALBREATH, J., and C. ALLEN HIGH, Special Judge, concur.


author: GREENHILL, Chief Justice.

text:
    CONTINENTAL SOUTHERN LINES, INC., Petitioner, v. Ruth HILLAND et vir., Respondents.
    No. B-5004.
    Supreme Court of Texas.
    Oct. 8, 1975.

      Weitinger, Steelhammer & Tucker, Don A. Weitinger and Robert H. Steelhammer, Houston, for petitioner.
    Jamail & Gano, Robert F. Stein, Houston, for respondents.
   GREENHILL, Chief Justice.

Ruth Hilland, a passenger, was injured in Louisiana when she was getting off of a bus marked Continental Trailways. “Continental Trailways” is but a trade name used by a number of separate bus corporations as indicated below. The bus from which the plaintiff stepped was owned and operated by Continental Southern Lines, Inc. Suit was brought within two years by Ruth Hil-land against Continental Trailways, Inc., a Texas corporation. The defendant Continental Trailways, Inc., is a different corporation with different officers and directors from Continental Southern Lines, Inc., a Louisiana corporation which had its headquarters in Jackson, Mississippi. More than two years after the accident, the plaintiffs’ petition was amended to make Continental Southern a party defendant. It interposed the two year statute of limitations.

The trial court overruled the plea of limitations; and after a jury trial, judgment was rendered for the plaintiff against Continental Southern for approximately $7,800. The Court of Civil Appeals affirmed. 516 S.W.2d 279. We reverse on the limitations question, but we remand the cause to the district court for a new trial in the interest of justice.

The general rule in tort cases, under the limitation statute, is that a suit must be “commenced and prosecuted” against a party to be held liable within two years from the date of the act which causes the injury. And generally, the institution of suit against one corporation will not interrupt the running of the limitation period as to a different corporation or entity. Stokes v. Beaumont, Sour Lake & Western Ry., 161 Tex. 240, 339 S.W.2d 877 (Tex.1960); 51 Am.Jur.2d 805, Limitation of Actions § 294.

The evidence in this regard is this: The plaintiff purchased in Houston a round-trip bus ticket on “Continental Trailways.” The bus station and the bus were marked in large letters “Continental Trailways.” The bus had printed on its side, near its rear, in one inch letters, the information required by the Interstate Commerce Commission,^ — that the bus was owned by Continental Southern Lines, Inc. The plaintiff apparently did not see this. She considered that she was just traveling on “Continental Trailways” [not Continental Trailways, Inc., against whom suit was brought].

The ticket which she purchased stated on it that it was issued by some 26 bus lines, listed in alphabetical order, beginning with American Bus Lines, Inc., and including the name of Continental Southern Lines, Inc., “all doing business as Continental Trailways, Dallas, Texas.”

The corporation first sued, Continental Trailways, Inc., was not one of the 26 corporations listed on the ticket sold to the plaintiff. At times relevant here, it had no equipment, busses, or terminals. It transported no passengers. Its sole purpose was to preserve the trade name, “Continental Trailways.” The record is silent as to the ownership of Continental Trailways, Inc., and Continental Southern Lines, Inc. There is no evidence that there is a parent corporation owning or controlling the two corporations, or any of the corporations. Each of the 26 or 27 corporations was a separate entity with separate officers and directors.

The testimony is that “Continental Trailways” is a trade name for an association of bus lines for advertising purposes. The evidence is that “any bus line that will qualify and meet the requirements can belong to the national Trailways System . . . .” Asked why Continental Trailways operated under so many corporate names, the Houston division superintendent, Mr. Hooker, testified, “Well, the Interstate Commerce Commission has required us to keep separate corporations for legal purposes, . I know they are . . . required to operate them as separate corporations. They have a separate board of directors and separate officers that make up individual corporate income tax records, it always operates separately.” The witness knew of no interlocking agreements.

The line owning and operating the bus from which plaintiff was injured had been the Southern Bus Lines, Inc.; and, according to the witness Hooker, “then, when it got into a Continental picture, it became Continental Southern Lines, Inc.” It operated thereafter under the trade name “Continental Trailways.”

The Court of Civil Appeals apparently recognized that there was not proof in the record to establish that Continental Southern Lines, Inc., and Continental Trailways, Inc., were the same or jointly owned entities, and that before the amendment to Rule 28, Texas Rules of Civil Procedure, instituting suit against Continental Trailways, Inc., would not, absent some exception or other reason, toll the statute of limitations against Continental Southern Lines. Its decision is based squarely upon the amendment to Rule 28.

Rule 28 formerly provided that an individual, partnership or unincorporated association could sue or be sued in an assumed name. The rule was amended to provide that

Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on a motion by any party or on the court’s own motion the true name may be substituted.

The suit was not brought against an entity in its assumed or trade name, “Continental Trailways.” It was brought against a Texas corporation, Continental Trailways, Inc., upon which service was had. Service was not had upon Continental Southern Lines, Inc. Furthermore, the amendment to Rule 28 did not become effective until January 1, 1971. The accident occurred in March of 1968; and the two year period of limitation would have run in March of 1970, — before the effective date of the amendment of the rule in 1971. If the limitation period had run, the amendment of the rule could not remove the bar of the statute of limitation. Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447 (1922). We must, therefore, reverse the judgments below.

This brings us to the judgment to be entered. Having found error in the judgment below, this Court, in a proper case, may remand the cause for a new trial in the interest of justice. Scott v. Liebman, 404 S.W.2d 288 (Tex.1966). We consider this to be such a case.

While there is no evidence here that the bus companies involved set about to deprive anyone of his or her rights, it is apparent that they have made a conscious effort to make it appear to the public and to their customers that they are “Continental Trailways.” There is evidence that the corporations have the same agent for service; and it developed on the oral argument that they use the same attorneys in this area, at least in Houston. There was also some indication on oral argument that the service of citation may have actually been forwarded to Continental Southern Lines, Inc., but there was no indication as to when this may have occurred. The driver of the bus from which plaintiff fell, soon after the accident, filled out a report of the accident and sent it to his home office, the office of the “real defendant,” Continental Southern Lines, Inc. From the above it might be inferred that its people became alerted and that its investigative people had prompt notice of the accident. Upon a retrial, the plaintiff will also have the opportunity to prove, if she can, that with knowledge of the facts of the accident, Continental Southern Lines, Inc., caused an answer to be filed by Continental Trailways, Inc., or acquiesced in such action. The record, however, was not fully developed; and there are only inferences, but no finding, that Continental Southern Lines, Inc., was actually notified and had a fair opportunity to defend itself before the period of limitations had run.

The primary purpose of a statute of limitations is to compel the exercise of a right within a reasonable time so that the opposite party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. While the plaintiff made a mistake in her original petition as to the defendant that should have been sued, it is our opinion that she should be given, under the circumstances here present, an opportunity to prove that the Continental Southern Lines, Inc., was cognizant of the facts, was not misled, or placed at a disadvantage in obtaining relevant evidence to defend the suit. Price v. Anderson, 522 S.W.2d 690 (Tex.1975); Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816 (1950). See also Gentry v. Credit Plan Corporation of Houston, Tex., 528 S.W.2d 571, announced by this Court on September 24, 1975, where dispositive facts were put in evidence.

If the substance of the facts set out above are found upon a new trial, it would be a misapplication of the statute of limitations to hold that the plaintiff’s action was barred. Continental Southern would then have known or should have known that it would be the target if plaintiffs ever learned the new facts, and it had as much opportunity to prepare a defense as if it had been named a defendant in the original petition.

The judgments of the courts below are reversed and the cause is remanded to the district court for a new trial.

      . Article 5526, Vernon’s Texas Civil Statutes Annotated. All emphasis herein is added.

      . The bus station was owned and operated by yet another corporation, Trans-Continental Bus System, Inc. Out of that terminal four bus lines operate: Continental Bus System, Inc., which operates “up as far as Denver, Colorado”; Continental Southern Lines, Inc.; Midwest Bus Lines, Inc.; and at the time of trial in 1974, Continental Trailways, Inc. The latter was changed from a Texas corporation to a Delaware corporation in about 1973 and began to operate busses to Houston, Corpus Christi and San Antonio. The defendant Continental Southern Lines, Inc., operates in Louisiana, Mississippi, Alabama, and Arkansas, and “comes as far west as Houston, Texas.”