text:
    STATE of Missouri, Respondent, v. Timothy R. TIERNEY, Appellant.
    No. KCD 29867.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1979.

      Allan J. Fanning, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ. '
   SHANGLER, Presiding Judge.

The defendant was convicted by a jury of the sale of methamphetamine, a Schedule II controlled substance, and was sentenced by the court to eight years imprisonment as a second offender.

On appeal, the defendant contends the conviction was without jurisdiction because the information was neither on the oath of the prosecutor nor with citation of the section of the statute which proscribes the conduct charged against him. The defendant admits ihese objections were not made at the trial, nor after the trial on motion, but contends nevertheless that the information, so truncated, does not charge an offense and thus vests no jurisdiction to adjudicate a conviction.

The prosecution was conducted on an amended information signed by an assistant prosecutor, rather than by the prosecutor, as provided by Rules 24,01 and 24.16. The term prosecutor as used in the Rules of Criminal Procedure, however, by the very terms of Rule 36.05 includes an assistant prosecutor for the reason, no doubt, that the office commands from both the same qualifications and the same duty. Sections 56.151 [Laws of 1973], 56.180, 56.200, 56.240, 56.550, RSMo 1969. The signature of the assistant prosecutor on the information brought against the defendant was as if done by the prosecutor. State v. Falbo, 333 S.W.2d 279, 284[2, 3] (Mo.1960).

The defendant contends, however, that the information was invalid as an accusation because the face did not recite “the section of the Revised Statutes of Missouri which proscribes the conduct charged [and] the section of the statutes which fixes the penalty or punishment therefor” which Rule 24.01(a) prescribes the formal charge shall contain. And, indeed, the information contains § 195.200, RSMo 1969, which fixes the penalty for sale of a Schedule II controlled substance but not § 195.020, RSMo 1969, which defines the conduct subject to offense. The defendant does not contend this lapse was error merely [as he may not in the absence of objection at the trial] but that the defect renders the information null as a formal accusation of offense. An information which fails to charge a crime does not empower a court to proceed, cannot support an adjudication of criminal sanction, and the want of jurisdiction is not aided by the verdict but may be raised for the first time on appeal. Rule 28.02; State v. Johnson, 548 S.W.2d 245, 247[1] (Mo.App.1977). An information stated so as to enable the defendant to meet the charge and to bar further prosecution for the same offense, however, is valid against objection. State v. Tandy, 401 S.W.2d 409, 412[2-4] (Mo.1966).

The elements for a valid information are given in Rule 24.01. The declared rule, prior to amendment on January 1, 1977, was:

The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting attorney, and the indictment shall also be signed by the foreman of the grand jury. [It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement.] Allegations made in one count may be incorporated by reference in another count.

The amended rule rescripts as paragraph (a) the original except that the portion in brackets is displaced by the provisions that

It shall also contain on the face thereof the section of the Revised Statutes of Missouri which proscribes the conduct charged, the section of the statutes which fixes the penalty or punishment therefor, and the name and degree, if any, of the offense.

The amended rule adds paragraph (b) that

All indictments or informations which are substantially consistent with the forms of indictments and informations which have been or will be approved by this court shall be deemed to comply with the requirements of rule 24.01(a).

Rule 24.01(b) contemplates the promulgation of forms of informations by the Supreme Court of Missouri to suit the given offense and, in fact, Missouri Approved Charges — Criminal [MACH — CR] 32.08 frames an accusation for the sale of a Schedule II Controlled Substance under § 195.020, RSMo 1969. The official form MACH-CR 32.08, consonant with the requirement of Rule 24.01(a), charges the essential elements of the offense in the terms of the statute and the recitations that the conduct of the defendant violated § 195.020, RSMo 1969, and was punishable upon conviction under § 195.200.1(4), RSMo 1969. The information brought against the defendant lacked any reference to § 195.020 which subjects the sale of methamphetamine to criminal sanction. The prosecution of the defendant, however, was during the interval between the currency of amended Rule 24.01 and the adoption of MACH — CR 32.08 so that the model information adopted thereafter becomes only advisory as to the form amended Rule 24.01(a) intended for sufficient compliance. It is within this perspective that we consider the contention of the defendant that failure of the formal charge to inform that the conduct alleged against him violated the specific statute was essential to an adjudication of conviction.

The advent of the Criminal Code of 1979 was a renovation of the law of crimes enacted to facilitate the administration of justice. To aid this significant public purpose, the Missouri Supreme Court adopted revised criminal instructions as well as new forms for indictments and informations conformable to the content of the code. These coordinate, but separate, implements were made to coincide with the day the new Criminal Code became effective, January 1, 1979. The difference between them is [other than that of function] that while the MAI-CR forms are required for use, MACH-CR are not. The use of MACH-CR “is recommended by the Court,” but Rule 24 of Criminal Procedure and the cases which decide those provisions continue to govern the validity of indictments and informa-tions. MACH-CR 1.00, Supplemental Notes on Use (2).

MACH-CR subserves the administration of criminal justice by the promulgation of forms, for the most part in the language of the criminal statute, but individuated when the statute defines an offense in generic terms, designed to inform the defendant of the nature and cause of the accusation with sufficient definition for defense and so as not to put twice the defendant in jeopardy for the same offense. MACH-CR, How To Use This Book; United States Constitution, Sixth Amendment; Missouri Constitution, Art. I, § 18(a); State v. Kesterson, 403 S.W.2d 606, 609[1] (Mo.1966); State v. Tandy, supra, l.c. 412[2-4]. MACH-CR, in other words, is designed to avoid error and hence to facilitate conclusive dispositions of criminal prosecutions. It is for this reason that Rule 24.01(b) provides that an information substantially consistent with MACH-CR shall be deemed to comply with the requirements of Rule 24.01(a) for the form, signature and contents of an indictment or information.

There is no contention by the defendant that the information does not charge the essential elements of offense under § 195.020 so as to leave doubt as to what to defend against or so as not to preclude a subsequent prosecution for the same conduct. The defendant complains only that the information does not cite § 195.020 which proscribes the conduct charged against him nor § 556.280 to allow punishment as a second offender, in violation of Rule 24.01(a). The Second Offender Act does not charge an offense or fix a penalty but acts only to take the punishment away from the jury to the judge. State v. Pulis, 579 S.W.2d 395 (Mo.App.1979, S.D.). It is evident that whatever consequence those lapses may entail, they do not invalidate the conviction for want of a sufficient statement of charge nor affect jurisdiction. It is evident also, that whatever error may have resulted was waived by failure to object and preserve the question for review on appeal.

The defendant next contends that the information was insufficient to invoke the Second Offender Act [and imposition of sentence by the court rather than the jury] because that statute applies to a person previously convicted of an offense punishable by imprisonment in the penitentiary who was sentenced and subsequently placed on probation, on parole, fined or imprisoned, whereas the information merely alleges that the defendant was received by the Department of Corrections. That allegation clearly implies that the defendant was imprisoned upon conviction and is sufficient for Second Offender Act jurisdiction. State v. Ellifrits, 459 S.W.2d 293, 296[1] (Mo. banc 1970). On this issue the defendant contends also that the amendment of the information at the close of the prosecution evidence to allege the prior conviction in Clay County, rather than in Jackson County as originally pleaded, prejudiced the defense. The claim of prejudice is that the defendant was denied opportunity to discover the Clay County record of conviction, presumably to contradict at the trial the Jackson County allegation of prior conviction. The defendant of course was not deterred from discovery of the Jackson County misallegation by an inquiry, formal or informal, which would have certainly disclosed the error. It is, in any event, a formal nonprejudicial defect of the kind cured by jeofails. Rule 24.11 [thirteenth part]; State v. Garner, 538 S.W.2d 937, 941[3] (Mo.App.1976).

The defendant contends next that the admission into evidence of the two exhibits to prove prior conviction was prejudicial as plain error. The Clay County transcript of judgment, defendant says, was invalid as proof of conviction because the document was without certificate or other official verification. A mere look at the back of the exhibit shows the authentication of the circuit clerk and refutes this contention. The other exhibit was a Division [formerly, Department] of Corrections record that the defendant, identified as to characteristics, was received and then paroled from custody. The signature of the Supervisor subscribes the record. The defendant contends that only those officials mentioned in §§ 490.180 and 480.190 are empowered to certify a record as evidence, the Supervisor of the Division of Classification and Assignment of the Division of Corrections not among them. To the contrary, the certification of the Supervisor was authentication of the document and the exhibit was proper proof of the matters shown. State v. Sheets, 468 S.W.2d 640, 642[1-4] (Mo.1971).

The defendant contends also that the evidence did not prove a sale within the elements of the criminal statute. The defendant likens a sale of a controlled substance to a commercial transaction of any other goods with a fixed price, delivery and payment. Sale as used in the Narcotic Drug Act, and as charged against the defendant, however, condemns a far more encompassed activity. [§ 195.010-(3Q)—Defi-nitions]:

Sale includes barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee.

The defendant derives his contention from State v. Sykes, 478 S.W.2d 387 (Mo.1972) and State v. Lemon, 504 S.W.2d 676, 681-682 (Mo.App.1973). In each case a sale was found and in each case the elements of a traditional sale were present. Sykes [l.c. 388] instructed that sell meant “the acceptance of payment for and delivery of an article at a fixed price to be paid for the article.” That instruction was not challenged and was not an element of decision but was shown in the opinion, no doubt, to demonstrate the strength of the evidence for conviction. It submitted, in any event, the actual proof, but does not mean what the defendant makes of it here—that no proof short of a performed commercial sale falls within the criminal sanction of § 195.020. Lemon follows Sykes to decide that when the elements of a commercial sale are shown—agreed price, delivery and payment—a sale under the criminal statute is also made out. They give no intimation that a transfer of a controlled substance, less formal or other than a commercial sale, cannot convict under the statute. The precedents follow the clear terms of the statutory definition that a sale includes barter [State v. McClure, 504 S.W.2d 664, 667[3] (Mo.App.1974)]—which is sufficiently proved by mere participation in the determination of the price to be charged for the controlled substance—and also exchange [State v. Davis, 450 S.W.2d 168, 170[2-4] (Mo.1970)] gift and even offer. The declaration of § 195.020 that possession, sale, distribution or transfer of stimulant drugs shall be unlawful intends that sale shall be given an application unconfined by definitions of the civil practice on commerce and contracts. State v. Schlagel, 490 S.W.2d 81, 84 (Mo.1973); State v. Davis, supra, l.c. 170[2—4],

The evidence was sufficient to submit to the jury the guilt of the defendant of the sale of the controlled substance methamphetamine. The proof was made at the trial by the testimony of three police officers and a forensic chemist. Two of the officers, undercover agents Kramer and Clark, received a telephone call from one Lawson that “a connection” could get them an ounce of “speed” and summoned them to his apartment. The two officers [Kramer equipped with a body microphone monitored by an officer on the exterior] entered the Lawson apartment with an unidentified informant and awaited the arrival of defendant Tierney. On arrival, Tierney introduced himself to the officers and stated: “Hey, man, I can- get you an ounce of pure speed. It will take us a few minutes to drive to where we’re going to go.” The others followed Tierney and Lawson in a car as directed and came to the address where the sale was to take place. The defendant Tierney entered the house first, soon emerged, and beckoned the others to join him. They entered the house and were met by one Weekly who, at the request of the defendant Tierney to, “Hey, show the guys the speed,” produced a cellophane bag with white powder content. Weekly handed the powder to Officer Clark with the comment, “Hey, it’s pure speed, it’s never been cut.” Thus assured, Officer Kramer agreed to pay Weekly $1,050 for the drug from a roll of bills he displayed. The defendant Tierney then asked: “Hey, what do I get for doing this? How about me?” Lawson made a similar request. Officer Kramer responded and gave a twenty-dollar bill to Tierney, one to Lawson and one to Weekly — presumably on the- purchase price of the drugs. With this, Kramer said, “Boy, boy, boy, that’s a lot of dough,” when the surveillance officers, on that signal [heard via the body microphone], entered the premises for the arrests.

The defendant contends, simply, that there was no sale because the full $1,050 purchase price did not pass to Weekly. A sale was shown under § 195.020 by transfer of the drug for any consideration, albeit not a full requital in contract terms. State v. Davis, supra, l.c. 170[2-4].

The defendant asserts other error in that the court refused his preferred instruction of conspiracy to sell methamphetamine under § 556.120, a misdemeanor. This contention proceeds on the assumption that conspiracy to commit an offense is included within the completed offense — the object of conspiracy — and so the duty befell the court to instruct on the lesser graded and included offense [conspiracy], conduct necessarily concomitant to the commission of the sale.

A conspiracy under §§ 556.120 and 556.130, the law then extant, was an agreement by two or more persons to accomplish by concert of action some criminal or unlawful purpose manifested by an overt act toward completion. State v. Dalton, 134 Mo.App. 517, 114 S.W. 1132, 1136 et seq. (1908). A conspiracy under these statutes was treated as an evil per se, subject to punishment separately from the substantive offense which is the object of consummation. Thus a conspirator could be charged, and convicted, at once for both the confederation to do an unlawful act, although still inchoate, as well as the completed act itself. State v. Slade, 338 S.W.2d 802, 805[4] (Mo.1960); 16 Am.Jur.2d, Conspiracy § 5; 15A C.J.S. Conspiracy § 76. That principle of conspiracy was modified by the 1973 amendment of § 556.130, effective as to this prosecution, that [subsection 2]

no information or indictment charging a person with conspiracy under sections 556.120 and 556.130 may contain a count for any other charge or crime, and no person may subsequently be charged or tried for an attempt to commit an unlawful act or the commission of an unlawful act having first been convicted or acquitted of a conspiracy to commit the same act.

This enactment, however imperfectly, intends to prevent concurrent and subsequent prosecution of a conspiracy and the completed offense. The deterrence of the statute to concurrent and subsequent prosecutions for the inchoate as well as the completed act does not rest on a premise of included offense but on a public policy to avoid the common law practice which vexes an accused twice for the conduct.

The common law history of conspiracy [which tolerated concurrent or consecutive prosecutions for the conspiracy to act and the completed act] as well as the statutory amendments to that traditional doctrine [which confine a' prosecutor to a single action for that course of conduct] treat the incipient and the completed conduct as exclusive crimes, independent of the other, and unaffected by the merger and double jeopardy considerations which preclude proceeding on a lesser-included offense after prosecution of the greater offense. LaFave & Scott, Criminal Law, p. 494 (Hornbook Series 1972); State v. Elliott, 559 S.W.2d 175, 177[4, 5] (Mo. banc 1977); State v. Slade, supra, l.c. 805[4].

The evidence was that the defendant Tierney was the connection for the illicit sale transaction. He acted the factotum: he arranged the sale, he brought the purchaser to the supplier, entered the premises alone to ensure an acceptable encounter between the purchaser and seller, summoned the purchaser in, exhorted the seller to produce the drug, and on conclusion of the terms of sale, asked for — and received — a money reward for his trouble. This evidence of affirmative participation proves that the defendant was an aider and abettor from incipience to conclusion of an unlawful sale, and not merely a conspirator of an unfulfilled criminal scheme. An accused who aids and abets the commission of a crime is guilty as a principal apart from an initial conspiracy. State v. McClure, supra, l.c. 667[2-5]; State v. Reich, 293 Mo. 415, 239 S.W. 835, 837[4, 5] (1922).

The trial court was without authority to submit the conspiracy as a lesser-included offense of the unlawful sale. The proffered instruction was properly refused.

The complaints that remain relate to contentions of error for an instruction tendered by the defendant as a converse but refused by the court and for irregularity in particulars in the verdict-director which submitted the prosecution theory of guilt. These points come without the text of the challenged instructions or of the converse tendered but refused by the court in violation of Rule 84.04(e) and they will be denied review. State v. Tash, 528 S.W.2d 775, 783[28] (Mo.App.1975); State v. Stuebinger, 552 S.W.2d 338, 339[2] (Mo.App.1977). They present, moreover, no contentions of merit. The converse tendered by the defendant as Instruction B was grammatically irregular and not in the form of MAI-CR.. It was properly refused. State v. Todd, 537 S.W.2d 865, 868 (Mo.App.1976). The instruction then given by the court was a full converse of the element of the direct charged and requested in the tender. The verdict-director was in the form of MAI-CR 14.10 [since superseded by MAI-CR 2d 32.06 for sale of a controlled substance] with the MAI-CR 2.12 modification for active participation as a principal and the proper submission for charge.

The judgment is affirmed.

All concur.

      . Prefatory Letter by the Chief Justice of the Missouri Supreme Court MACH-CR; MACH-CR 1.00, Supplemental Notes on Use; Prefatory Letter by the Chief Justice of the Missouri Supreme Court, MAI-CR 2d; MAI-CR 2d, How to Use This Book.

      . The Department of Corrections has been reorganized into the Department of Social Services which oversees the newly-formed Division of Corrections. We assume the title of the chief administrative officer of the Division of Classification and Assignment was then changed from Director to Supervisor. Omnibus State Reorganization Act (1974); V.A.M.S., Vol. 3A, Appendix B, § 13, paragraph 15.

      . That sale of a controlled substance under the statute varies from any common understanding or commercial usage of that term becomes evident from the injunction of present MAI-CR 2d 32.06, Notes on Use (3):
      In a separate instruction the following terms, if used in any of the instructions, may be defined by the court on its own motion with a request, and must be defined upon written request in proper form by the state or by the defendant:

        “sale.” [Emphasis added.]
      See, also, for the holding, that the sense of that term in comparable statutes does not accord with the usage in commercial transactions: State v. Stone, 114 N.H. 114, 316 A.2d 196 (1974); State v. Griffin, 221 Kan. 83, 558 P.2d 90 (1976).

      . This section was repealed by Laws 1977, S.B. No. 60, § 1, which enacts the Criminal Code effective January 1, 1979, and the new § 564.-016 on conspiracy.

      . The duty to instruct asserted by the defendant presumably derives from MAI-CR 2.04 and 2.05, Rules 20.02(a) and 26.02(6) and § 556.230, now repealed, and enacted anew as Code § 556.046.

      . The discernible purpose of the statute notwithstanding, the amendment read literally— quite inadvertently we believe, allows a double prosecution where the prosecution for the completed offense precedes the conspiracy charge. This anomaly was corrected by the enactment of the Criminal Code Conspiracy § 564.016 which abrogates altogether the common law rule on duplicate prosecutions:
      A person may not be charged, convicted or sentenced on the basis of the same course of conduct of both the actual commission of an offense and a conspiracy to commit that offense.


source: Caselaw Access Project

author: MANFORD, Judge.

license: Public Domain

text:
    Roy Lee KERR, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 30103.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1979.
    David M. Strauss, Public Defender, Columbia, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Richard Thurman, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD, and MANFORD, JJ.
   MANFORD, Judge.

Appeal from order denying motion to vacate judgment pursuant to Rule 27.26. Affirmed.

Movant was, by jury, convicted of murder in the first degree. Punishment was assessed at life imprisonment. The conviction was affirmed on appeal, State v. Kerr, 531 S.W.2d 536 (Mo.App.1975).

Post-conviction relief pursuant to Rule 27.26 was sought by movant. An evidentia-ry hearing was held satisfying the rule in Fields v. State, 572 S.W.2d 477 (Mo.banc 1978). The trial court made findings of fact and conclusions of law.

On appeal, movant alleges the trial court erred in its failure to conclude movant was denied effective assistance of counsel on two grounds; first, that counsel failed to investigate facts and circumstances of mov-ant’s alibi defense and second, that he was denied effective assistance of appellate counsel because of an alleged conflict of interest by appellate counsel.

Our review of such proceedings is weighed against the principles announced in McQueen v. State, 475 S.W.2d 111 (Mo.banc 1971). “ ‘The test on this question which this court has stated on several occasions is whether counsel’s actions, or lack thereof, have made the trial a farce or mockery of justice’ ”, and further, it has been held that “ ‘. . . examination of the cases indicates that in most instances the courts, after stating such a test, have sought actually to ascertain whether there has been such failure on the part of the attorney that defendant has not had a fair trial.’ ” Thomas v. State, 512 S.W.2d 116, 121 (Mo.banc 1974). Also see Rodgers v. State, 567 S.W.2d 634 (Mo.banc 1978) and Cox v. State, 572 S.W.2d 631 (Mo.App.1978).

“[T]he better rule seems presently to be that if the action (or inaction) of counsel were of such a character as to result in a substantial deprivation of defendant’s constitutional right to a fair trial . . .” Thomas v. State, 516 S.W.2d 761, 765 (Mo.App.1974).

“Our standard on review is limited to whether the findings and conclusions of the trial court are clearly erroneous.” Smith v. State, 518 S.W.2d 155, 157 (Mo.App.1974); Rule 27.26(j). As previously stated, it is against this standard that the trial court’s findings and conclusions as supported by the facts are weighed for final determination.

A complete reading of the transcript determines the following pertinent facts. Movant had been represented by counsel from the State of Illinois for the purposes of opposing extradition, on this charge, to Missouri. The public defender in Missouri assigned to defend Movant had a conversation with the Illinois counsel concerning movant’s witnessing a vehicular accident in the state of Illinois the early morning hours of the date of the homicide. The facts revealed the Illinois counsel had made inquiry as to the circumstances surrounding the accident. Such inquiry failed to produce any results because movant failed to provide counsel with pertinent details as to location, time and other necessary data to prove the existence of the accident.

The evidence further established that upon learning this, the public defender in Missouri, who ultimately defended movant at trial, immediately inquired of movant about the accident. Movant did not provide counsel with anything more than vague references to a general location in the state of Illinois. Even though counsel did not have sufficient data, he and his investigator made some 50 inquiries of local and and state law enforcement officials, plus they acquired and studied highway maps in their endeavors to determine the location of the accident. Their efforts, though diligent, failed to provide information regarding the accident.

After conviction and while incarcerated, movant spent from December 1976, until the latter part of February, 1977, in an effort to secure a report of the accident. Movant’s inquiry resulted in his receiving a copy of an Illinois vehicular report which confirmed a one-vehicle (semi-truck) accident on Route 157 (Ramp 128) from Interstate 270 in Illinois.

The evidence further established that the time of the death of the victim could not have occurred prior to 3:00 a. m. on the same date. Further, the testimony of the Illinois state trooper and an employee of the truck line, both of whom testified at the 27.26 hearing and who were at the scene of the accident, established there was ample time to depart from the scene of the homicide to arrive at the scene of the accident.

The record is replete with testimony of the co-effort by defense counsel and his investigator to establish the location, time and other relevant matters pertaining to the accident from which a defense alibi might have been established at the time of the trial. Movant’s contention is without merit for the evidence does not prove laxity by counsel.

As to movant’s contention of ineffective assistance of appellate counsel because of a conflict of interest, the evidence shows that one Robert Kingsland represented movant’s wife in the uncontested dissolution of marriage proceedings between movant and his former wife. The ground for dissolution was bigamy. The decree in said proceedings was entered in mid 1973. Both counsel and movant’s former wife testified at the 27.26 hearing and stated the criminal charges against movant (then pending) were not discussed. The evidence further establishes that approximately one and one-half years later, counsel, Robert Kingsland, became a member of the staff of the public defender’s office of Cole County.

In early 1973, counsel prepared a reply brief on behalf of movant. He did not even meet movant until after the appeal in this case was decided and the motion for rehearing and transfer was pending. The only discussion between appellate counsel and movant regarded the reply brief.

To sustain movant’s contention that the preparation of a reply brief relative to the appeal of movant’s conviction, prepared in accord and in the interests of movant some 1½ years after the same attorney had represented movant’s former wife in the uncontested dissolution proceeding, would not only be a bizarre conclusion, but would, in fact, border on the ludicrous.

There is no evidence to support this allegation by movant and it follows there can be no prejudice of movant’s rights. An attorney is not forever prevented from representing persons in the future simply because that person previously had some interest in the person or property of a prior client. In Thomas v. State, supra, this question was answered when the court declared, “A lawyer who represents a client is certainly not disqualified for the rest of his life from accepting employment by a person having an interest which may conflict with that of a prior client.”

Movant has had his day in court, been tried and found guilty by a jury, properly sentenced and accorded a hearing on his post-conviction allegations. There is nothing in evidence to support his allegations on this appeal that he suffered denial of any rights or was prejudiced by counsel, jury or the courts and therefore, the order of the trial court is in all respects affirmed.

All concur.

      . Seales v. State, 580 S.W.2d 733 (Mo.banc 1979), which sets forth the new standard for ineffective assistance of counsel, is not applicable to the case herein because majority opinion declares it to be prospective only as to hearings on motions under Rule 27.26 held subsequent to the date of the opinion.


author: KENNEDY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. William J. WILLIAMSON, Defendant-Appellant.
    No. KCD 30342.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1979.

      Robert Beaird, Kansas City, for defendant-appellant.
    John Ashcroft, Atty. Gen., Earl W. Brown, III, Special Asst. Atty. Gen., Kansas City, for plaintiff-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

We affirm the second-degree murder conviction of defendant William J. Williamson upon which he was sentenced, in accordance with the jury’s verdict, to 20 years’ imprisonment.

The sufficiency of the evidence to support the judgment is not challenged. A very brief statement of the facts will suffice for our purposes:

On the evening of December 28, 1977, defendant entered a bar in Kansas City, Missouri, where John “Sonny” Horton was seated at a table with his concubine, Gay-nell Harris, and another companion, Q. T. Lee. According to the state’s evidence, defendant without provocation attacked Horton with a large butcher knife, inflicting four wounds, from one of which he shortly died. Defendant then left the bar and disposed of the knife by throwing it into some weeds in a vacant lot a half-block away, where it was retrieved by the police upon their arrival.

Defendant testified that Horton, armed with a knife, had started the fight. He testified that Horton’s wounds were inflicted with his own knife during the course of their struggle, except a wound in the back which defendant said could have been inflicted by Gaynell as she struck at defendant during the affray. As defendant and Horton fell to the floor, Horton fell upon his knife and his grip at once relaxed. Defendant seized the knife and stabbed him once more.

He brings the case before this court with two complaints of trial error.

Cross-examination of defendant with respect to police role in prior convictions shown for impeachment purposes.

The first complaint is that the court overruled defendant’s objection to the prosecutor’s cross-examination question, “Have the police ever done anything to you?” (Defendant had given as an explanation for his leaving the bar before the arrival of the police, and his discarding the knife, that he was “frightened of the police”.) The court overruled the objection, and the defendant answered the question: “They have been mistaken on occasion.”

The court’s ruling was correct. The defendant’s flight, and his discard of the weapon, constituted evidence of his guilt of the offense. State v. Burnley, 480 S.W.2d 881 (Mo.1972); State v. Cooper, 541 S.W.2d 40, 45 (Mo.App.1976); State v. Garrison, 147 Mo. 548, 49 S.W. 508, 510 (Mo.1898). Defendant undertook to offer another explanation for his actions than consciousness of guilt, i. e., that he was frightened of the police. It was well within the court’s discretion to allow the prosecutor to cross-examine to test this explanation of the defendant. State v. Scown, 312 S.W.2d 782, 786-787 (Mo.1958); State v. Wendell, 542 S.W.2d 339, 341 (Mo.App.1976).

There followed without further objection from the defendant, a rather lengthy exchange between prosecutor and defendant, mixing proof of prior convictions of crimes (of which there were two, both upon guilty pleas) and the roles of the police therein. The allowance of this cross-examination is said to be error.

The proof of the criminal convictions was admissible for impeachment under § 491.-050, RSMo 1969; State v. Toliver, 544 S.W.2d 565, 568-569 (Mo. banc 1976).

Defendant’s answers on cross-examination, touching the roles of the police in the prior convictions, were designed to blunt the impact of the convictions. Of a conviction for carrying a sawed-off shotgun, he said there were “extenuating circumstances”. He said he had “no choice” but to plead guilty since he was “broke” and “not able to continue my defense”. The police had “manufactured” the evidence, he said. He also said the police had fabricated the evidence which had led him to plead guilty to a later charge of malicious destruction of property. None of the details of either crime were elicited.

It is true, as defendant points out, that the state is not permitted, upon proof of a prior conviction for impeachment purposes, to go beyond the fact of the conviction to give it undue emphasis or to show details of the convicted crime so as to aggravate it. “The scope of such prior conviction inquiry is subject to the discretion of the trial judge to act, upon timely objection, to prevent probing of convictions for any purpose other than to affect the witness’ credibility.” State v. Toliver, supra. But here defendant made no objection other than the one noted above, at the beginning of the exchange, when the prosecutor asked: “Have the police ever done anything to you?” Except for that initial question, objection and answer, with which we have already dealt, no objection was made and the court was not asked to limit the prosecutor’s questions with respect to the prior convictions. The matter is therefore not preserved for review. State v. Simmons, 500 S.W.2d 325, 328 (Mo.App.1973).

However, even had an objection been made and overruled, we see no prejudice to defendant. The idea of not allowing extensive inquiry into details of the conviction proved for impeachment is that the fact of the conviction ought not to be aggravated by additional facts to the defendant’s prejudice — and further that inquiry into such collateral matters must be closely limited in order to avoid confusion of issues and waste of time. State v. Newman, 568 S.W.2d 276, 281-282 (Mo.App.1978); McCormick on Evidence 88-90, 439-440 (1972). The facts brought out here with respect to the prior convictions were not of a kind which would aggravate the conviction itself, as would the details of the crime. Actually defendant’s allegations of police misconduct, if believed, would diminish the prejudicial effect of the convictions. The defendant suffered no prejudice from the additional facts surrounding the convictions. State v. Porter, 538 S.W.2d 888, 891 (Mo.App.1976); State v. Lee, 536 S.W.2d 198, 199 (Mo.App.1976).

Attack upon venire on Due Process claim of underrepresentation of women presented for first time in brief upon appeal.

The defendant raises in his brief in this court, for the very first time, the objection that “the court erred in accepting the venire as constituted under the 1978 Jackson County rules because that system of jury member selection violates the constitutional rights of the defendant.” For this proposition he cites Duren v. State of Missouri, 439 U.S. 664, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). However, Duren does not aid the defendant where no timely motion to quash the jury panel was filed. Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979).

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    In the Matter of a Subpoena of the Division of Employment Security, a Division of the Department of Labor and Industrial Relations of the State of Missouri, Served on Paul A. HEIN, Jr., M.D., and calling upon him to approve and produce records pertaining to his payroll.
    No. 40241.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 12, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 13, 1979.
    Paul A. Hein, Jr., M.D., pro se.
    Rufus D. Shannon, Clayton, John Gillespie, Jefferson City, for respondent.
   PER CURIAM.

An action to enforce a subpoena duces tecum issued by the Missouri Department of Labor and Industrial Relations, Division of Employment Security, pursuant to Section 288.380(8) RSMo 1969.

The Circuit Court of St. Louis County upheld the validity of the subpoena and ordered appellant to appear before the Division of Employment Security to produce the requested records. Appellant appeals this order.

Appellant, Dr. Paul A. Hein, Jr., is a licensed doctor practicing in Kirkwood, Missouri. Mr. Gene C. Rankin, field auditor of the Missouri Division of Employment Security (hereafter referred to as Division) received an assignment to examine appellant’s payroll records from the Division’s central office in Jefferson City. He mailed an audit letter to appellant stating he wished to examine appellant’s payroll records. Appellant responded to the letter and on February 28, 1977, when Mr. Rankin appeared at appellant’s office, appellant refused to allow his records to be examined.

Under Section 288.090 RSMo Supp.1956, every employer is required to make quarterly contribution and wage reports to the Division unless exempted under Section 288.080 RSMo Supp.1975. Appellant filed his contribution and wage reports for the third and fourth quarter of 1976. In both reports he stated, “No wages paid in dollars, ... as legally defined.” He also wrote that this information was provided involuntarily under threat of statutory punishment. In the third quarter report appellant wrote that he had one “worker”, Marian P. Vierheller.

On March 4, 1977, Mr. Rankin again appeared at appellant’s office and properly served appellant with a subpoena duces te-cum. The subpoena requested that appellant appear at the Division’s office in Clayton, Missouri, on March 14,1977, and bring with him,

“All payroll records and all the books, papers, and memoranda showing wages paid or payable . . . for the period from 1/1/76 to 12/31/76 which said records have been deemed necessary by the Division as evidence in connection with the administration of said Missouri Employment Security law. . . . ”

Appellant appeared before the Division but failed to produce the subpoenaed records. On January 9,1978, the Circuit Court of St. Louis County issued a Show Cause Order, commanding appellant to appear before the Court on February 14, 1978, to show cause why an order to produce the requested records should not be issued against him.

After the hearing, at which appellant represented himself, the Court entered an order requiring him to appear before the Division and produce the subpoenaed records. It is from this order that appellant, pro se, appeals.

Appellant raises two issues on appeal: first, the trial court erred by recognizing that the Division had established a prima facie case, and second, the trial court erred in issuing the order commanding appellant to comply with the subpoena since he has no payroll records and therefore it is impossible for him to comply.

The first issue raised by appellant may be phrased more explicitly as whether the Division, through its agents, abused its investigatory power, in requiring appellant to appear before the Division and produce the subpoenaed records. The Division initially exercised its discretion in determining what information it needed for its investigation. It is this court’s rule to determine if this power was abused.

The Missouri Employment Security Act, Title XVIII, Chapter 288, RSMo 1969 sets out the procedures for administering employer contributions to the state’s unemployment fund. The Act provides the Division with its own investigatory power, including the power to issue subpoenas. The Division has the statutory authority to, “ . . . issue subpoenas to compel the

attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed determination or any other phase of the administration of this law.” Section 288.230(1) RSMo 1969.

It was pursuant to this authority that the Division issued its subpoena to appellant. The Division does not have unfettered discretion in issuing subpoenas. It is generally accepted that the courts will enforce a subpoena during an administrative investigation if: 1) the inquiry is within the authority of the agency; 2) the demand is not too indefinite; 3) the information sought is reasonably relevant. Adams v. F. T. C., 296 F.2d 861, 866 (8th Cir.1961) cert. den. 369 U.S. 864, 82 S.Ct. 1029, 8 L.Ed.2d 83 (1962).

In most cases, the Division relies on the quarterly wage and contribution reports in determining whether employers have incurred contributions. However, in certain cases additional information is required to render such determinations. The Missouri legislature has provided the Division with investigatory powers to obtain this additional information. When the Division reviewed appellant’s third and fourth quarter reports of 1976 and saw that he employed a “worker” who was not receiving any wages, it was put on notice that additional information was needed. The note on appellant’s reports, stating that the information was being provided under protest also, merited further inquiry by the Division.

The Division was within its investigatory power when it issued the subpoena duces tecum to appellant. The information sought — “payroll records”, showing “wages paid”, — was not too indefinite, and was clearly relevant and necessary to enable the Division to carry out its legislative purpose. Through the issuance of the subpoena, the Division can obtain the additional information necessary to determine whether or not appellant has incurred any contributions. For the Division to properly administer the Missouri Employment Security Act it must have access to payroll records and where necessary, shall invoke the aid of the courts to compel their production. To allow appellant to refuse to produce the subpoenaed documents would subvert the intent of the Act. In failing to produce the subpoenaed documents appellant violated Section 288.-380(4) RSMo 1969. We hold that the Division of Employment Security did not abuse its investigatory power in issuing the subpoena duces tecum to appellant.

Appellant also claims that he neither possesses nor has knowledge of any payroll records and thus is being ordered to do that which is impossible. The existence of appellant’s payroll records is a factual issue. Upon our review of the record pursuant to § 536.140 RSMo 1969, we defer to the agency’s finding on this point. We hold that a reasonable inference can be drawn that appellant possesses the payroll records subpoenaed by the Division of Employment Security.

The order of the Circuit Court is affirmed.


text:
    Carrie INGRAM, Appellant-Plaintiff, v. CIVIL SERVICE COMMISSION OF the CITY OF ST. LOUIS et al., Respondents-Defendants.
    No. 39008.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 19, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 13, 1979.

      Charles R. Oldham, St. Louis, for appellant-plaintiff.
    Jack Koehr, City Counselor and Harry J. Dodson, St. Louis, for respondents-defendants.
   PER CURIAM.

This is a proceeding initiated by Carrie Ingram (Employee) for disability benefits for injuries sustained in the course of her employment with the City of St. Louis. At the time plaintiff was injured the City was not under Workmen’s Compensation Act Chapter 287, RSMo 1959. Employee appeals from the judgment of the circuit court affirming an award of the Civil Service Commission of the City of St. Louis (Commission).

The Petition for Review of the decision of the Civil Service Commission of the City of St. Louis alleges that the Commission found that an award of $4,431.13 as disability leave and $2,500.00 as an award in gross was just and reasonable. It further alleged that the findings of fact and conclusion of law were not supported by competent and substantial evidence upon the entire record.

The circuit court, at the request of Employee, made findings of fact and conclusions of law and affirmed the award of the Commission.

The scope of review of an appellate court with respect to an administrative decision is the same as that of the circuit court. We review the decision of the administrative body not the judgment of the circuit court. May v. Ozark Central Telephone Company, 272 S.W.2d 845 (Mo.App.1954). Because of the disposition we are required to make of this case we need not specifically delineate the entire scope of review.

A reading of the briefs on appeal indicates that Employee’s principal complaint is that an award of the Civil Service Commission of the City of St. Louis was inadequate; and that she should have had an opportunity to produce evidence and inquire about guidelines used by the City Counselor and the Commission in making awards for permanent disabilities or the lack of any guidelines in making such awards.

There are references to the findings of fact and conclusions of the Commission in the transcript; we have searched the file on this appeal and have reviewed each of 34 exhibits filed with us and we do not have before us the findings and conclusions of the Commission.

The very basis of the proceeding in this case is an ordinance of the City of St. Louis. The transcript reveals that the City Counselor provided the members of the Commission with copies of Ordinance 56172 promulgated March 21, 1972 which he said had been amended without substantial change. In the hearing before the Commission portions of this ordinance were read into evidence on three different occasions. The ordinance was not formally introduced into evidence and is not listed among the exhibits presented to the circuit court. A portion of the purported ordinance is printed in Employee’s brief. Neither the Commission, the trial court nor this court can take judicial notice of the ordinances of the City of St. Louis. A determination of this case would necessitate interpreting the ordinance. The existence and the content of the ordinances must be proved as any other factual issue. State ex rel Freeze v. City of Cape Girardeau, 523 S.W.2d 123 (Mo.App.1975). In the case before us it was conceded that the copies of the ordinance that were handed to the members of the Commission was not the ordinance that was in effect at the time employee was injured.

It is the duty of appellant to provide us with a record containing everything necessary to the determination of all questions presented to us. State ex rel. Perno v. Quinn, 558 S.W.2d 320 (Mo.App.1977); City of St. Clair v. Cash, 579 S.W.2d 763 (Mo.App.1979). Without the ordinance and without the findings and the conclusions and the award of the Commission before us we lack a complete record and thus have nothing to review.

The appeal is dismissed.


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Douglas F. SCHADE, Appellant.
    No. 40994.
    Missouri Court Of Appeals, Eastern District, Division Three.
    June 19, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 13, 1979.
    Spradling & Spradling, A. M. Spradling, III, Cape Girardeau, for appellant.
    Bradshaw Smith, Pros. Atty., Jackson County, Richard E. Snider, John L. Cook, Cape Girardeau, for respondent.
   CRIST, Judge.

Operating a motor vehicle while intoxicated.

The defendant was convicted by a jury of operating a motor vehicle while intoxicated. The trial court assessed punishment at thirty days in the county jail and a $500.00 fine. We affirm.

The defendant first contends the trial court erred by giving pattern instruction MAI-CR 3.40. The instruction, as given to the jury, states:

“Evidence has been introduced that a specimen was taken of the defendant’s blood, and that upon analysis it disclosed that there was alcohol in his blood.
If you find and believe from the evidence that there was ten-hundredths or more of one percent by weight of alcohol in the blood of the defendant at the time a specimen was taken, you may infer that the defendant was intoxicated at that time but you are not compelled to do so unless you find and believe from all of the evidence beyond a reasonable doubt that the defendant was intoxicated at that time.
The State has the burden of proving beyond a reasonable doubt that the defendant was intoxicated at the time of the offense charged against him, and in determining that issue you must consider all of the evidence bearing upon that issue.”

The defendant feels the trial court erred in giving this instruction because the evidence of which the instruction speaks (a lab report), which was admitted by agreement of both parties, showed the defendant’s blood as type A and not type 0. The defendant contends his blood type is O and that the lab report analyzed someone else’s blood by mistake. The defendant relies on an expert witness who persuasively testified at trial that the defendant has type O blood and that it would be medically impossible for defendant to have had type A blood at the time of the accident. The defendant concludes that since the lab report, in his opinion, must have tested someone else’s blood, there is insufficient evidence to warrant the giving of MAI-CR 3.40. He contends the instruction prejudicially buttressed the erroneous indication that the defendant’s blood actually had been tested and had shown a blood alcohol content of greater than .10%.

We are not persuaded by defendant’s contention. MAI-CR 3.40 “must be given if requested ... in the trial of any criminal action . . . arising out of acts alleged to have been committed by any person while driving a motor vehicle while intoxicated, and in which evidence is admitted relating to the alcohol content of such person’s blood.” MAI-CR 3.40 — Notes on Use (1979). Accord: Rule 20.02. The report was admitted, albeit by agreement of the parties, and the trial court was required to give the instruction. The defendant must have thought it a tactical advantage to have the lab report admitted so he could attack it. He cannot now complain that the trial court gave an instruction that must be given whenever a lab report such as the present one is admitted into evidence.

Defendant next complains that the assistant prosecuting attorney for Cape Girardeau County should not have been permitted to testify to certain incriminating statements made by the defendant in a civil deposition. The assistant prosecutor’s testimony went to statements made by the defendant in the deposition and not to facts in the case as observed by the assistant prosecuting attorney. The assistant prosecuting attorney was not involved in the prosecution of the defendant in this case. He was not asked on direct examination if he was an assistant prosecuting attorney. His official capacity was brought out by the defendant on cross-examination. While the practice of calling an assistant prosecuting attorney to prove statements in a deposition is not to be encouraged, we find no error in this case. State v. Johnson, 488 S.W.2d 645, 647 (Mo.1973); State v. Hayes, 473 S.W.2d 688, 691-92 (Mo.1971); State v. Dennison, 571 S.W.2d 140, 141 (Mo.App.1978).

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: TITUS, Judge.

text:
    Price B. WILLIFORD and Kenneth Bowen, Plaintiffs-Appellants, v. Charles C. WHITE and Mary Alice White, Defendants-Respondents. Price B. WILLIFORD and Kenneth Bowen, Plaintiffs-Respondents, v. Charles C. WHITE and Mary Alice White, Defendants-Appellants.
    Nos. 10713, 10706.
    Missouri Court of Appeals, Southern District, Division One.
    July 13, 1979.
    Douglas J. Patterson, Kansas City, for plaintiffs-appellants respondents.
    Robert L. Jackson, Burke, Jackson & Hoffman, Kansas City, William Icenogle, Icenogle & Icenogle, Camdenton, for defendants-respondents appellants.
   TITUS, Judge.

Plaintiffs Williford and Bowen filed a three-count petition (I) to quiet title to certain real estate, (II) to eject defendants husband and wife from the real estate and award plaintiffs rents and profits for the time defendants occupied the property and (III) to rescind a real estate contract for fraud. Defendants answered and counterclaimed for specific performance of the contract or, in the alternative, for damages because of plaintiffs’ failure to comply with the terms of the agreement. Following trial, the court entered judgment quieting title to the property in plaintiffs, ejecting defendants therefrom and awarding plaintiffs money damages in the sum of $1.00. In addition, the judgment was in favor of defendants on the third count of the petition and awarded defendants $16,500 damages against plaintiff Williford on the alternative counterclaim. All parties have appealed.

PLAINTIFFS’ APPEAL

The three points relied on by plaintiffs read: “I Plaintiffs Williford and Bowen should have received more than nominal damages for rent while the defendants were in possession of the premises, pursuant to Section 524.110 R.S.Mo. II Plaintiff Williford should be responsible in quantum meruit pursuant to Count II of defendants’ counterclaim only for those items which represent expenses by defendants for the improvement and completion of the residence in question and/or the reasonable value thereof. Ill Plaintiff Williford respectfully submits that the judgment entered against him in the sum of $16,500.00 [on defendants’ alternative counterclaim] is in error as being outside the scope of the evidence, not supported by competent evidence and excessive.”

Any apt informed reader of the points relied on, supra, will quickly note they were penned in violation of the mandatory requirements [Bell v. Bell, 538 S.W.2d 733, 735[1] (Mo.App.1976)] of Rule 84.04(d), V.A.M.R., which requires strict application and is appropriate to appellate review of court-tried cases. Matter of Estate of Langford, 529 S.W.2d 31, 32[3] (Mo.App.1975); Long v. Lincoln, 528 S.W.2d 512, 513[1] (Mo.App.1975). Wherein and why plaintiffs should have received more than nominal damages for rent, wherein and why plaintiff Williford should be liable for only improvement expenses or the reasonable value thereof and wherein and why the $16,500 judgment for defendants was outside the scope of the evidence, unsupported by competent evidence and excessive are simple abstract conclusions whose meanings may be ascertained only after a search through the transcript on appeal and the argument portion of plaintiffs’ brief. This we are not required to do. Corning Bank v. Hager, 560 S.W.2d 892, 894 (Mo.App.1978); Brewer v. Blanton, 555 S.W.2d 381, 386[12] (Mo.App.1977); Sears v. Kistner, 555 S.W.2d 74, 76[1] (Mo.App.1977); Barber v. M. F. A. Milling Co., 536 S.W.2d 208, 209-210[4] and 211[13] (Mo.App.1976); Cavaness v. Armstrong, 525 S.W.2d 446, 447[3] (Mo.App.1975).

In addition to the foregoing, we note that plaintiffs’ point II is penned naked of any citation of authority. Albeit Thummel v. King, 570 S.W.2d 679, 687[12, 13] (Mo. banc 1978) holds “that Rule 84[.04(d)] does not require citation of authority in every instance,” it also states that “if the point advanced is not a matter of first impression and is not simply a matter of logic or policy or analysis of statutory or documentary language, . . . the court on appeal need not search for precedential support to overrule the contention.” There is nothing in plaintiffs’ point that qualifies it to be cata-logued among the exempted categories en-ounced by Thummel and we respectfully decline the chore of briefing the matter for them.

For the reasons heretofore stated, plaintiffs’ appeal is dismissed.

DEFENDANTS’ APPEAL

Defendants’ first point relied on states: “The court erred in denying Defendants specific performance of their real estate contract and as a consequence erred in quieting title in Plaintiffs and in ordering Defendants ejected from the real estate in question in that Plaintiff Bowen, by his conduct is estopped from denying the validity of the contract because Bowen did not cause the Warranty Deed conveying the property to him and Plaintiff Williford, dated March 26,1958, to be recorded until June 1, 1973; permitted the records in the Office of the Camden County Assessor to show ownership of the real estate in Plaintiff Williford; permitted Williford to insure the property in Williford’s name only; permitted Williford to deal with the property as his own; and permitted Defendants to go in and remain in possession of the real estate for a number of years and make improvements thereon.”

The primary thing wrong with this point is that there is a total dearth of evidence that plaintiff Bowen delayed recording of the deed, permitted the assessor’s records to show plaintiff Williford owned the property, permitted plaintiff Williford to insure the property in his name, permitted plaintiff Williford to deal with the real estate as his own or permitted defendants to take and retain possession of the property and make improvements thereon. Furthermore, the proof was the real estate sales contract signed only by plaintiff Williford (but not by his wife or plaintiff Bowen) was dated May 9, 1973, and that in June 1973, shortly after the deed conveying the property to plaintiffs was recorded, defendants were provided with a title report and an indemnity contract showing that plaintiff Bowen was owner of an undivided half interest in the property and that a Kenneth Hall had an outstanding agreement with plaintiffs to purchase the real estate which constituted a cloud on the title. But more importantly, Rule 55.08, V.A.M.R., and § 509.090, V.A.M.S., provide that estoppel is an affirmative defense which must be pleaded. Neither defendants’ answer nor counterclaim reveals that estoppel was pleaded. The case was not tried on the theory of estoppel and no facts were proved that would constitute an estoppel. Since not presented to the trial court, the issue cannot now be considered. White v. Wilks, 357 S.W.2d 908, 913[12] (Mo.1962); McIntosh v. City of Joplin, 486 S.W.2d 287, 290[9] (Mo.App.1972); Haughton Elevator Co. v. C. Rallo Contracting Co., 395 S.W.2d 238, 246[10] (Mo.App.1965); Oddo v. Associated Wholesale Grocers, Inc., 387 S.W.2d 169, 173[7] (Mo.App.1965); E. C. Robinson Lumber Company v. Lowrey, 276 S.W.2d 636, 641-642[9] (Mo.App.1955) and cases there cited in note 7.

Defendants’ second point relied on reads: “The court erred in denying Defendants specific performance of their real estate contract and as a consequence erred in quieting title in Plaintiffs and in ordering Defendants ejected from the real estate in question in that Plaintiff Williford acted as agent for his undisclosed principal, Bowen, in executing the real estate contract, and Bowen is bound thereby because Bowen by his course of conduct as set out in [point relied on] I. above apparently clothed Willi-ford with full and complete authority to deal with the real estate as his own and in his own name only.”

As previously indicated, plaintiffs owned the subject real estate as tenants in common, a fact defendants knew or should have known a month after the real estate contract in question was executed only by plaintiff Williford and the defendants and before defendants undertook any extensive improvements to the property. However, the chief defect in defendants’ second point is that under usual circumstances, neither tenant in common may, in dealing with third persons, bind the other tenant by any act with relation to the common property, not previously authorized nor subsequently ratified, because tenants in common do not sustain the relationship of principal and agent to one another, neither are they partners. Timothy v. Hicks, 237 Mo.App. 126, 136, 164 S.W.2d 99, 105[5] (1942); 86 C.J.S. Tenancy in Common § 108 at p. 515. As there was no showing that plaintiff Bowen previously authorized or subsequently ratified any actions by plaintiff Williford as amounting to acts as his own, defendants’ final point is denied.

For the reasons heretofore stated, plaintiffs’ appeal is dismissed and the judgment as it relates to defendants’ appeal is affirmed.

FLANIGAN, C. J., and KEET, CAMPBELL, BARKER and HENRY, Special Judges, concur.


author: BILLINGS, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael Eugene HAWKINS, Defendant-Appellant.
    No. 11018.
    Missouri Court of Appeals, Southern District, Division Two.
    July 18, 1979.
    John D. Ashcroft, Atty. Gen., Marjorie Wholey Haines, Richard F. Engel, Asst. At-tys. Gen., Jefferson City, for plaintiff-respondent.
    David Robards, Public Defender, Joplin, for defendant-appellant.
   BILLINGS, Presiding Judge.

Defendant Michael Eugene Hawkins was convicted by a Jasper County jury of carrying a concealed weapon, a .357 pistol, and sentenced to a three-year prison term. Defendant contends the corpus delicti was not sufficiently proven by the state and it was reversible error to admit, over his objection, his uncorroborated extrajudicial statements. We agree. We reverse the judgment and order the defendant discharged.

At about 11 p. m., Policewoman Myers of the Joplin Police Department saw two males, the defendant and a juvenile, crossing a street intersection. Each was carrying a large brown grocery sack. Officer Myers lost sight of the defendant and his companion shortly after having first seen them, and wondered where they had gone. She drove her patrol car' around the block, looking for the pair. She then saw the twosome walking and running between vehicles on a car lot. When Officer Myers drove her patrol car onto the lot, the boys walked toward her car. She asked them what they were doing and asked for their identification. As she was doing this, she looked to her left and saw a .22 caliber pistol lying on the ground beneath a parked car. A “back-up” officer arrived on the scene and a search of the area by this officer revealed a .357 pistol behind the rear wheel of another car which was on the other side of the car where the .22 pistol had been found. Officer Myers stated that when she first saw defendant on the car lot he was about four feet from the .22 pistol and ten or twelve feet from the location of the .357 pistol. She also testified she never observed a pistol “on the defendant or on the juvenile” and did not know from personal observation whether either of them had been carrying either weapon.

The next morning the defendant told officers that he and his companion had hidden the pistols on the lot. He said he and the juvenile had just arrived via bus from Kansas City and in response to a question “Where was your gun at?”, stated: “It was in the back and I had some — I had it in my coat sometimes, put it in my sack sometimes, carried it on me sometimes. Prior to the defendant’s statements being received in evidence, he, unsuccessfully, objected on the ground that the state had failed to sufficiently prove the corpus de-licti.

The corpus delicti means the body or substance of the crime, and the proof of it in a criminal case requires the introduction of evidence to establish the fact that the crime with which the defendant stands charged has been committed. City of St. Louis v. Watters, 289 S.W.2d 444 (Mo.App.1956). And, when the corpus delicti has not been sufficiently proven, an uncorroborated extrajudicial confession of guilt cannot be regarded as evidence tending to show guilt. Kansas City v. Verstraete, 481 S.W.2d 615 (Mo.App.1972). While this rule does not require full proof of the body of the offense, independent of the confession, there must be evidence of corroborating circumstances independent of the confession. Kansas City v. Verstraete, supra. “Unless there is independent proof, either circumstantial or direct, of the essential elements of the corpus delicti, extrajudicial admissions, statements or confessions of the accused are not admissible . . . .” State v. Summers, 362 S.W.2d 537, 542 (Mo.1962).

One of the essential elements of the offense with which defendant was charged is the “carrying” of the .357 pistol. State v. Cole, 527 S.W.2d 646 (Mo.App.1975). Concealment on the person or in such close proximity to the accused so as to be under his easy and convenient control constitutes “carrying.” State v. Hall, 508 S.W.2d 200 (Mo.App.1974).

The state attempts to support the admission of defendant’s statements by arguing the corroborating evidence in this case consists of the following: the officer saw defendant and the juvenile walking across the street carrying brown paper bags; when she stopped and made inquiry of defendant and his companion on the car lot the defendant attempted to pick his brown paper bag up off the ground; the .357 pistol was found in “close proximity” to defendant; and, bullets for the .357 pistol were found in defendant’s pocket.

We cannot agree with the state’s position. Independent of defendant’s admissions to the officers the following morning, there was no evidence that, prior to the time the .357 pistol was found beneath a parked car, some ten or twelve feet distant from defendant, he had been carrying this weapon concealed on his person or in such close proximity thereto so as to be under his easy and convenient control. He was seen carrying a brown grocery sack — which contained Christmas presents and personal belongings. He was next seen several minutes later, on a car lot, attempting to pick up the sack, when the officer arrived. Officer Myers candidly admitted she did not know if either defendant or the juvenile was carrying the .357 pistol or both weapons and did not know when the pistols had been hidden beneath the parked cars or who had placed them there.

The fact that .357 bullets were found in defendant’s pocket does not support an inference that defendant was carrying a concealed weapon, the .357 pistol, prior to that time. Cases cited by the state involving a concealed weapon found in a motor vehicle occupied by a defendant are readily distinguishable.

We are of the opinion that it was reversible error to admit into evidence defendant’s extrajudicial statements without sufficient independent proof of the corpus delicti from which it could be found he was carrying a concealed weapon.

The judgment is reversed and defendant is ordered discharged. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Basham, 568 S.W.2d 518 (Mo. banc 1978).

HOGAN and MAUS, JJ., and KELSO, Special Judge, concur.


author: HENRY, Chief Justice.

text:
    The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY et al., Appellants, v. Elizabeth Ann MARTIN, d/b/a Classic Cat II, Appellees.
    Supreme Court of Tennessee.
    July 2, 1979.
    Rehearing Denied Aug. 6, 1979.

      J. R. Slobey, Metropolitan Atty., Nashville, for appellants.
    R. Price Nimmo, Joel H. Moseley, Richardson R. Lynn, Nashville, for appellees.
   OPINION

HENRY, Chief Justice.

The Metropolitan Beer Permit Board of Nashville and Davidson County suspended the beer permit of Classic Cat II, pursuant to two citations. The Davidson County Circuit Court, pursuant to statutory writs of certiorari and a' de novo hearing as provided in Sec. 57 — 209, T.C.A., reversed. The two writs were consolidated for trial purposes in the Circuit Court.

We examine these citations and the proceedings conducted pursuant thereto.

I.

The First Citation

When a petition for certiorari is filed to review the action of a beer board in revoking or suspending a beer license, Sec. 57 — 209, T.C.A. requires that “the revoking agency shall cause to be made, certified and forwarded to said court a complete transcript of the proceedings in said cause.”

The certificate lodged in the Circuit Court does not even purport to transmit a copy of the citation. There appears as Exhibit A to the petition for certiorari an undated document alleged in the petition and admitted in the answer to be a copy of the charges filed against the owner of the Classic Cat II. There is no indication it was ever served. In summary it charges violations as follow:

1. Metropolitan Code Section 5-1 — 23 relating to false statements in the permit application.

2. Metropolitan Code Section 5-l-16(a) requiring written applications.

3. Metropolitan Code Section 5-1-16(a)(6) requiring a statement that the applicant will conduct the business in person, and an indication of agency.

4. Metropolitan Code Section 5 — 1—16(d) providing for a forfeiture of a permit as a consequence of false statements in the application.

Permittee was cited to appear before the Beer Board on April 10, 1978 to answer these charges.

The Beer Board also lodged with the Circuit Court an authenticated copy of the transcript of its April 10, 1978 session. At the commencement of the hearing before the Beer Board, the Metropolitan Attorney, at the request of the Chairman, read the charges. The charges, as read, may be summarized as follows:

1. Violating Metropolitan Code Section 5-1-18.1 declaring beer premises to be public places for purposes of inspection.

2. Violating Metropolitan Code Section 5-2-23.3 making it unlawful to allow intoxicated persons to loiter on or about premises.

After these two charges, which are not contained in the citation as purportedly issued, there follows a specification charging the refusal to permit a police officer to enter the establishment and another charging the arrest of a drunk found on the premises and of the club manager for “allowing drunks to loiter.”

Thereafter the charges, as read, contain the four charges hereinabove listed. There is no indication that the citation was amended or that notice was ever given to the permittee of the additional charges.

At the hearing proof was presented as to these various charges.

Quite aside from the flawed foundation upon which these charges rested from a procedural standpoint, we find the proof to be wholly inadequate to support them. The Beer Board suspended the “license” for sixty (60) days. We assume that the Board intended to suspend the permit since it is powerless to suspend the license, although the latter is ineffectual without a permit.

After all the proof was in and a motion was made to suspend the license for sixty (60) days, Metropolitan counsel pointed out the necessity that the Board particularize its findings. The Board thereupon announced that it was “based on the beer violation.” We surmise that the Board intended by this to find the permittee guilty of all charges except those relating to false statements in the application. This necessarily follows from the fact that the latter violation requires a forfeiture of the permit.

Appeals to this Court in cases involving beer permits are accompanied by a presumption of the correctness of the action of the trial court, unless the evidence preponderates against it. Lones v. Blount County Beer Board, 538 S.W.2d 386 (Tenn.1976). The preponderance of the evidence clearly supports the Trial Judge’s finding of insufficient evidence to support this particular suspension. His action is affirmed and appellants’ assignments I and III are overruled.

II.

The Second Citation

The second citation was properly certified by the Beer Board and is included in the record. It charges the permittee with allowing “an[y] intoxicated person to loiter on or about the premises,” on April 14, 1978.

All the proof was directed to activities occurring on April 16,1978; however, counsel makes no issue of this discrepancy. Therefore, we do not treat it as being of critical significance. It is but another of many instances of sloppy Beer Board procedure.

The proof presented to the Beer Board was meager and marginal. If there were no other proof in the record we unhesitatingly would affirm the Trial Judge and hold that the Beer Board acted arbitrarily; however, upon the de novo hearing before the Trial Judge additional proof was presented which places the matter in an entirely different light.

The presentation of additional proof before the Trial Judge is permissible under Sec. 57-209, T.C.A., which provides for a trial de novo. In this context this means that the cause is tried as if it originated in the Circuit or Chancery Court and the Trial Judge is required to make an independent judgment on the merits, substituting his or her judgment for that of the Beer Board. Richards v. Lewisburg Alcoholic Beverage Commission, 543 S.W.2d 852 (Tenn.1977). As aforesaid, the finding of the Trial Court is supported by a presumption of correctness and will not be disturbed unless it preponderates against the conclusion reached.

We find that the evidence so preponderates.

Before the Trial Court the Beer Board presented the deposition of the “loitering drunk” and his cohort and companion. This proof was not presented to the Beer Board.

He is a member of the regular army stationed at Fort Campbell. He and his companion, another soldier, arrived in Nashville in the early afternoon of April 16, 1978 and took a room at a local motel.

About mid-afternoon they wended their way to the Classic Cat II, where they stayed several hours imbibing seven and sevens, “[m]aybe 10 to 15.” Thereafter, they left, bought a bottle of Seagrams V.O. and settled down to some serious drinking— “drinking out of the bottle.”

Around 9:30 or 10:00 p. m. they returned to the Classic Cat and the seven and sevens. While he denies that his first 10-15 drinks caused him to be “smashed,” he admits that after his interlude with Seagrams V.O. and after topping that off with more seven and sevens, he was drunk.

He says that every time he drinks “hard liquor” he gets drunk or tries to. He admits that he was in Nashville to get “bombed,” and that he went to the Classic Cat to get drunk and “watch the women.” Of course, he denies that he has a drinking problem; he says he just likes to drink.

They apparently remained at the Classic Cat for some two or three hours on their second visit.

When we analyze this soldier’s actions in terms of his stated intention “to get bombed,” the conclusion is inevitable that success crowned his efforts. While he lolled, loafed, and loitered about the Classic Cat satisfying his lickerish craving for liquor by lapping up lavish libations, he fell from his chair, clutching his drink in his hand, into the waiting hands of vice squad officer McElhaney, who helped him up and took him to jail.

We subject his conduct to the most liberal standard that has come to the attention of the author of this opinion.

Not drunk is he who from the floor Can rise alone and still drink more;
But drunk is he, who prostrate lies, Without the power to drink or rise.

This soldier fails the test. He was drunk —openly, visibly, notoriously, gloriously and uproariously drunk.

The Classic Cat II violated one of the great commandments by which “beer joints” must live. In summary and in short, in paraphrase and in idiom, the law “don’t allow no [drunken] hanging around” beer establishments.

We do not deal with an isolated case of a drunk who came in from the cold and was drunk on arrival, or with a customer who consumed beer and became intoxicated as a result of that consumption under circumstances where the management reasonably could not be expected to realize that the customer had reached the point of intoxication. We deal purely and simply with permitting a drunk to “hang around” a beer joint under circumstances that were known, or should have been known to the permit-tee, or her employees.

We find no reported cases wherein the courts have attempted to define the offense of drunken loitering about premises where beer was sold. However, Hopper v. State, 194 Tenn. 600, 253 S.W.2d 765 (1952) deals with an analogous prohibition against permitting minors to loiter about such premises. There, this Court quoted with approval the definition of “loitering” as contained in a decision of the Connecticut Supreme Court:

To be slow in moving; to delay; to linger; to be dilatory; to spend time idly; to saunter; to lag behind. 194 Tenn. at 601, 253 S.W.2d at 766.

See also McCoy v. State, 3 Tenn.Cr.App. 709, 466 S.W.2d 540 (1971) where the Court approved a definition from Black’s Law Dictionary:

To be dilatory, to be slow in movement, to stand around, to spend time idly, to saunter, to delay, to idle, to linger, to lag behind. 466 S.W.2d at 542.

We approve these definitions; they accord with the common understanding of the term “loiter” or “loitering.”

Appellants’ assignment number IV is sustained, and the action of the Beer Board in suspending Classic Cat IPs license for a period of thirty (30) days is upheld.

III.

Appellants assign as error the Trial Court’s ruling that Metropolitan Code Section 6 — 1—23(k), which makes it unlawful to permit an intoxicated person to loiter on or about premises where beer is sold, is unconstitutionally vague.

It is well settled that municipalities, in the exercise of their police power, are given wide discretion in regulating the sale of intoxicating beverages. Barnes v. Dayton, 216 Tenn. 400, 392 S.W.2d 813 (1965); Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345 (1968), appeal dismissed 393 U.S. 318, 89 S.Ct. 554, 21 L.Ed.2d 513 (1969).

Although an ordinance must “give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954), the United States Supreme Court has stated that laws governing regulated activities are not subject to the same degree of scrutiny as laws applicable to the general population:

In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed. .
The poor among us, the minorities, the average householder are not in business and not alerted to the regulatory schemes of vagrancy laws; and we assume they would have no understanding of their meaning and impact if they read them. Papachristou v. City of Jacksonville, 405 U.S. 156, 162-63, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115-16 (1972).

The ordinance in question applies only to beer permit holders and their employees. The sale of beer is a regulated business in which the permit holders are cognizant of the regulatory scheme and aware of its impact.

As noted above, the definition of “loiter” approved in previous cases reflects the common understanding of the term. We therefore hold that in the context of this regulatory scheme, the ordinance is not unconstitutionally vague, under either the state or federal constitution.

This cause is remanded to the Circuit Court at Nashville for appropriate action as to the 30-day suspension of the permit of the Classic Cat II.

Affirmed in part; reversed in part; remanded.

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

MEMORANDUM ON PETITION TO REHEAR

The petition to rehear is respectfully denied. The evidence, in its totality, clearly preponderates against the correctness of the action of the trial court. Lones v. Blount County Beer Board, 538 S.W.2d 386 (Tenn.1976).

All concur.

      . This proof was in deposition form. Neither deposition was signed by the deponent. Neither deposition waived the signature and neither authorized the signature by another. Rule 30.05, Tenn.R.Civ.P. requires that the deposition be submitted to the witness for examination and be signed by him unless waived or unless the witness is ill or cannot be found or refuses to sign. The record contains no indication of any of these conditions. A motion to suppress may be made for .dilure to abide the rule and the deposition may be rejected. No motion to suppress was made. Rule 32.04 provides that such irregularities are waived in the absence of such a motion. We, therefore, have considered these two depositions.

      . Seagrams and 7-up.

      . Thomas L. Peacock, The Misfortunes of El-phin (1827) Translated from the Welsh.


author: FONES, Justice.

text:
    James D. TOLLEY and William Lowe, et al., Appellants, v. GENERAL ACCIDENT, FIRE AND LIFE INSURANCE CORPORATION LTD., et al., Appellees.
    Supreme Court of Tennessee.
    July 30, 1979.

      John F. Kizer, Milan, for appellants.
    Lloyd S. Adams, Jr., Adams, Ryal & McLeary, G. Griffin Boyte, Warmath & Boyte, Humboldt, for appellees.
   OPINION

FONES, Justice.

This is an indemnification suit brought pursuant to T.C.A. § 50-915 by plaintiff General Accident, insurer of plaintiff H & M Construction Company, to recover workmen’s compensation benefits paid to James Romans, an employee of defendant Tolley & Lowe, a Tennessee partnership and a subcontractor of H & M. Defendant Auto-Owners Insurance Company insured the workmen’s compensation liability of Tolley & Lowe, and the policy was procured through defendant Pickard Insurance Agency.

The construction contract was performed in Arkansas and $1,609.75 was paid to Romans, based upon benefits provided by the Arkansas Workmen’s Compensation Act. Auto-Owners was not licensed to write workmen’s compensation insurance in the State of Arkansas and asserted that it was not liable to its Tennessee insured for a workman’s compensation accident that occurred in Arkansas and that its agent Pick-ard had no authority to issue a certificate of insurance to H & M to the effect that Tolley & Lowe’s workmen’s compensation liability on the Arkansas job was insured by Auto-Owners.

The facts were stipulated, from which the trial judge reached the legal conclusion that Romans’ contract of employment with Tol-ley & Lowe was an Arkansas contract. In effect, that finding precluded extraterritorial application of the Tennessee Act, because the contract of hire was not made in this State. T.C.A. § 50-917. The result was that the trial court awarded plaintiff a judgment against Tolley & Lowe on the original complaint, dismissed Auto-Owners, and a similar award in favor of Tolley & Lowe was made against Pickard, the agent.

Our legal conclusion from the stipulated facts differs from that of the trial judge.

After Tolley & Lowe entered into the painting subcontract with H & M, it sent its superintendent to Arkansas to hire painters. On February 14, 1975, James Romans, a resident of Missouri, sought employment as a painter at a higher wage rate than the superintendent was authorized to pay. The signed statements of James Tolley and their superintendent, J. C. Mitchell, set out the facts and circumstances under which Romans’ contract of employment was entered into. James Tolley’s statement reads as follows:

“[0]n Jan. 30,1975 I sent Mr. J. C. Mitchell our job superintendent over to Mountain Home, Ark. to complete the job which consists of painting the interior and exterior of this plant. I instructed him to employ men from that area, and on Feb. 14, 1975 a Mr. James H. Romans from West Plains, Mo. went to work for us, he came on the job and talked with superintendent, and he wanted more money than Mr. Mitchell was authorized to pay, so this man called me at Milan, Tenn. and told me he needed to work but couldn’t work for what Mr. Mitchell had offered him, he told me he was a past house painter and out of work and I decided that I would hire him without making application with us, then I called my superintendent Mitchell and told him I had hired him and he would be on the job next day at $4.00 per hour.”

J. C. Mitchell’s statement reads as follows:

“I was instructed to hire men from that area [Mountain Home, Arkansas] if I needed them as me and another employee from Milan, Tennessee was doing the job O.K. but we got behind and I was going to hire one guy to help us. A Mr. Romans came on the job looking for work and he wanted $3.75 or $4.00 per hour to work. Mr. Tolley and Mr. Lowe had not given me authority to hire anyone at this wage so I told him I couldn’t hire him at that price and told him he would have to get in touch with Mr. Tolley or Mr. Lowe and he left and the next day Mr. Tolley called me and told me he had hired Mr. Romans by phone and he would be on the job the next day.”

Mitchell did not hire Romans in Arkansas, because he had no authority to hire at that rate of pay. Romans telephoned Tol-ley in Milan, Tennessee for the avowed purpose of making an offer to work for the partnership at a $4.00 hourly rate and his offer was accepted by Tolley in Tennessee. “Where an acceptance of an offer is given by telephone, it is generally held that the place of contracting is where the acceptor speaks his acceptance.” 16 Am.Jur.2d, Conflict of Laws, § 37 (1964); accord, Restatement of Conflict of Laws § 326, Comment C (1934). We hold that the contract of hire between Tolley & Lowe and Romans was made in Tennessee and that the extraterritorial application of the Tennessee Workmen’s Compensation Act was thereby invoked. T.C.A. § 50-917. See Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678 (1947); Smith v. Van Noy Interstate Co., 150 Tenn. 25, 262 S.W. 1048 (1923); Hudnall v. S & W Constr. Co., 60 Tenn.App. 743, 451 S.W.2d 858 (1969).

It is immaterial that Auto-Owners was not licensed to do business in Arkansas. The express terms of T.C.A. § 50-917 renders an employer liable for an injury sustained by an employee while working outside the territorial limits of this State, when the contract of hire was made in this State. Auto-Owners insured Tolley & Lowe’s liability under the Tennessee Act, which included that extraterritorial liability.

Auto-Owners cites Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221 (1931), aff’d on rehearing, 163 Tenn. 648, 45 S.W.2d 528 (1932), in support of its position that all of the parties are bound “by their election of Arkansas compensation law” and cannot now proceed under Tennessee law.

We think Tidwell may be readily distinguished from this case. In Tidwell the employee’s widow proceeded directly against the deceased husband’s employer in Ohio, and obtained an award, that was being paid by the Ohio Insurance Fund, after the Chattanooga employer refused to recognize and pay the award. The suit in Tennessee was necessarily brought by the fund in the name of the employee, who had made the election to proceed in Ohio.

In the instant case, plaintiff H & M, as principal contractor, has the statutory right under T.C.A. § 50-915 to proceed in its own name for indemnification against the party primarily liable for compensation, having paid an obligation for which it was secondarily liable as “statutory employer” under that Code section. T.C.A. § 50-915 was not involved in Tidwell, and the reasoning employed to reach the result therein is not applicable to this situation.

The stipulation reveals that Romans filed a claim with the Arkansas Commission, that his claim was presented to Tolley & Lowe,

“who, in turn, submitted the claim to Pickard under the provisions of their Auto-Owners policy. Auto-Owners refused to honor the claim.”

In our view, Auto-Owners was liable for the compensation due Romans under the Tennessee Workmen’s Compensation Act. When it rejected the Arkansas claim, without offering to pay compensation under the Tennessee law, it created by its own act the necessity that the principal contractor, H & M, pay Arkansas compensation. Having done so it cannot avail itself of any defense based upon Romans’ election to first proceed in Arkansas.

There is no basis in this record for imposing liability to any of the parties upon Pickard, the agent.

The decree of the trial court is reversed and set aside, and this cause is remanded to the trial court for the entry of a decree awarding a judgment in the sum of $1,609.75 against Tolley & Lowe and Auto-Owners and providing that as between the judgment debtors Auto-Owners is primarily liable and Tolley & Lowe secondarily liable; General Accident may have a judgment over against Auto-Owners if it pays all or any part of the judgment, and dismissing all claims against Pickard. Costs of the cause are adjudged against Auto-Owners.

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