text:
    STATE of Missouri, Respondent, v. George Hilliard DAVIS, Appellant.
    No. KCD 29786.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.

      Robert B. Paden, Maysville, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was charged with second degree murder (Sec. 559.020, RSMo 1969), found guilty of manslaughter (Sec. 559.070, RSMo 1969) by a jury, and sentenced to ten years confinement in the Missouri Department of Corrections.

The points of error relied on by defendant, four in number, are as follows: (1) the trial court erred in overruling defendant’s motion for verdict of acquittal at the close of the state’s case because under the evidence introduced by the state defendant, as a matter of law, acted in self-defense; (2) the trial court erred in admitting State’s Exhibit No. 9 (a knife) in evidence over defendant’s objection that there was a “break in the chain of custody” with respect to said exhibit; (3) the trial court erred in permitting the “late” endorsement of a witness by the state on the information; and (4) the trial court erred “in failing to direct a verdict of acquittal in favor of the defendant during the [closing] argument of the prosecuting attorney” because of the latter’s comment “on the failure of the defendant to report to law enforcement officers from the date of the homicide until February 3, 1977.”

Defendant’s points relied on, particularly his first and second points, necessitate a somewhat comprehensive review of the evidence introduced by the state. In doing so it should be noted that in certain critical areas much of the state’s proof consisted of two extrajudicial statements made by defendant, one to agents of the F.B.I. on February 3, 1977, in Pasadena, Texas, and the other to the Sheriff of DeKalb County, Missouri, on February 14, 1977, in DeKalb County. The admission of these extrajudicial statements has not been challenged by defendant on appeal.

The defendant and Grover Slawson Silvers (hereinafter the victim), according to the extrajudicial statements heretofore referred to, first met in the convivial atmosphere of a bar in St. Joseph, Missouri. The defendant was from Pasadena, Texas, and the victim was from Union Star, DeKalb County, Missouri. The two struck up a “friendship of sorts” and defendant accompanied the victim home. On July 22, 1976, the victim and the defendant (a guest in the victim’s home) “got up real early and started drinking”. They favored “peppermint schnapps and beer”. During the afternoon two teenage boys came by the victim’s home. After they left defendant took a nap and was awakened “about dusk” by the victim. Thereupon the victim talked to defendant “excessively about [one of the teenage boys] . . . being a homosexual”. Defendant advised the victim that he “didn’t participate in any homosexual activities and didn’t like that sort of talk”. However, the victim kept “aggravating” defendant with such talk. In order to avoid being subjected to further “talk” of that kind, defendant went into the kitchen of the victim’s home. The rear door of the victim’s home was approximately five feet from a counter which contained a kitchen sink. An open door led from the kitchen to an adjoining bedroom. At this point the two extrajudicial statements, in certain important respects, vary considerably. According to the statement given to the F.B.I. agents, the following then occurred: “When I got into the kitchen he grabbed at me at which time I hit him in the head with a Coke bottle which I had in my hand at that time. I then picked up a butcher knife that I saw laying on the counter. At that time Silvers said, ‘I’m going to get you,’ and turned running toward his bedroom. I then

went after Silvers, when I saw him in his room he was standing next to his bed. When he turned around I stabbed him in the chest with a butcher knife that I had in my hand. I then became extremely frightened and ripped the telephone out of the wall, went to the kitchen where I washed my hands and the knife and thereafter put the knife back where I got it. The keys to Silvers’ 1966 Chevrolet stationwagon were on the table so I picked them up and left in his vehicle. After leaving Silvers’ house, I drove all night and just before getting to the Arkansas border, picked up a hitchhiker who wanted to go to the house of a friend of his, Wayne Rogers, who lived in Spring-dale, Arkansas. . . According to the statement given to the Sheriff of De-Kalb County, the following then occurred: “He took hold of my arm and shoved me. I kept telling him to leave me alone but he wouldn’t do it. I picked up a Coke bottle from the kitchen table and hit him on the forehead — but it didn’t phase him. He grabbed me and started pulling me toward the bedroom and said, ‘I’ll get you’ or ‘I’ll fix you’, I don’t know which. I reached over and got a knife off the sink there. Then we were in the bedroom. I said, ‘Let me go, let met go’, but he wouldn’t. I popped him one — he fell on the bed backwards. I pulled the knife out and went to the kitchen and washed the knife and my hands. I went back to the bedroom and I believe I put his feet up on the bed. I reached over and jerked the telephone wires loose. I went in the kitchen and saw the car keys and picked them up. Then I got my other stuff together and took off. I went out the front door and got in his car and left. I drove all night before I got to Kansas City. I drove in Missouri all day Friday and I picked up a hitchhiker before I got to Arkansas. . . . ”

The state’s evidence, apart from defendant’s extrajudicial statements, also disclosed the following. The victim’s body was not discovered until Sunday, July 25, 1976. When discovered it was lying upon a bed in the bedroom adjacent to the kitchen. No foul play was suspected at the time and the victim’s death was presumably believed to have resulted from natural causes. However, when the victim’s body was being prepared for interment embalming fluid “spurted out” of an aperture caused by an incision in the victim’s chest. Nevertheless, funeral services proceeded and the victim’s body was buried.

Several neighbors and relatives who entered the victim’s home at or near the time his body was found testified that nothing in the house was in a state of “disarray”. One of the neighbors further testified that he did not “notice a knife or any other type of instrument in the bedroom” were the victim’s body was found.

On July 28, 1976, the Sheriff of DeKalb County, in response to a call from the City Marshal of Union Star, conducted a limited investigation at the victim’s home. During the course of his investigation, the sheriff found a knife in the victim’s house “in a dish drainer” on a counter adjacent to the kitchen sink. The knife was left in place at the victim’s home until September 2, 1976, when the sheriff returned and picked it up from the place where he had first seen it on July 28, 1976, i. e., “in a dish drainer” on a counter adjacent to the kitchen sink. The knife which the sheriff removed from the “dish drainer” was marked State’s Exhibit No. 9 during the trial, identified and admitted into evidence over defendant’s objection that there was a “break in the chain of custody”. A neighbor of the victim testified that the victim’s home was locked from July 25, 1976, until September 2, 1976, except for a period of time on July 28, 1976, when it was unlocked to admit the Sheriff of DeKalb County. This witness further testified that the windows of the victim’s house were “up” during the entire period of time just mentioned.

Disinterment of the victim’s body was judicially ordered approximately thirty days after it was buried, and an autopsy was then performed. The pathologist who performed the autopsy testified that the victim “died from a stab wound of the chest which resulted in internal bleeding”. The pathologist described the would inflicted upon the victim as follows: “[T]he knife entered in the third right rib, actually sliced a little bit of the top of the rib off, split it longitudinally, and cut the upper lobe of the right lung. It cut the sack enclosing the heart and cut the aorta, the large vessel at the top of the heart where it leaves the heart, and then went on through, through the back layer of the sack enclosing the heart, then ended in one of the verta bra, that is a bone of the spine.” The pathologist equated the force required to inflict such a wound as being “about as much force as it takes to crack some spare ribs with a cle[a]ver.”

In pursuing his first point defendant argues that the extrajudicial statement which he gave the F.B.I agents was preempted by the later and more favorable one he gave to the Sheriff of DeKalb County, and therefore only the latter should be considered in resolving his first point. The state acquiesced as evinced by the following statement found on page 19 of its brief: “Because state’s Exhibit 2 [the statement defendant gave to the F.B.I agents] does not raise any claim of self-defense only state’s Exhibit 3 [the statement defendant gave to the Sheriff of DeKalb County] need be considered in deciding whether the state’s admission of the confession established as a matter of law that the appellant acted in self-defense.”

State v. Thornton,. 532 S.W.2d 37 (Mo.App.1975), is principally relied upon by both the defendant and the state as illuminating the way for disposing of point one. There, as here, the accused contended that the state’s evidence, as a matter of law, established that he acted in self-defense. In State v. Thornton, supra, at p. 42, the court emphasized four constituent requirements of self-defense. Substantially paraphrased, they are: (1) he who relies upon self-defense must believe that he is faced with the danger of having death, great bodily harm or a felony inflicted upon him; (2) he must have reasonable grounds for such belief; (3) he must not use more force than reasonably appears necessary to him under the circumstances to resist the danger with which he reasonably believes he is confronted; and (4) before resorting to the extreme measure of homicide, he must do everything in his power consistent with his own safety to otherwise avoid the danger. Fully aware of the difficult challenge presented when called upon to resolve whether self-defense is established as a matter of law or is a question of fact for the jury, the court in State v. Thornton, supra, at pp. 42-43, leaned heavily upon State v. Rash, 359 Mo. 215, 221 S.W.2d 124, 124 (1949), and State v. Jackson, 522 S.W.2d 317, 319 (Mo.App.1975). Rash was cited for the proposition that although self-defense is ordinarily a question of fact for the jury, whether undisputed and uncontradicted evidence introduced by the state establishes self-defense presents a question of law for the court. Jackson was cited for its recognition of cases dealing with certain aspects of the foregoing propositions in greater depth, namely, cases holding that self-defense is generally a question of fact for the jury when the evidence appertaining thereto is conflicting or of such a character that different inferences might reasonably be drawn therefrom, and cases holding that self-defense is seldom established as a matter of law and that acquittal of an accused by reason of self-defense as a matter of law, so as to bar submission of the charged homicide offense to the jury, is relegated to those exceptionally rare instances where all the undisputed and uncontradicted evidence clearly establishes self-defense.

After carefully evaluating the evidence in this case in light of the various principles garnered from State v. Thornton, supra, this court is constrained to hold that the state’s evidence did not establish, as a matter of law, that defendant acted in self-defense and the trial court properly responded to the evidence by submitting the issue of self-defense to the jury by way of appropriate instructions. A number of cogent reasons exist for drawing this conclusion: (1) evidence that defendant had time to secure and strike the victim with a Coke bottle and thereafter secure a knife from the kitchen sink counter permits the reasonable inference that defendant was presented with ample opportunity to retreat from the victim’s home before resorting to the extreme measure of taking the victim’s life; (2) a lack of disarray in the victim’s home and defendant’s disconnection of the telephone are inconsistent with his claim of self-defense; (3) the absence of a “knife or any other type of instrument” in the bedroom where the victim’s body was found belies any claim by defendant that he reasonably believed that he was faced with a real or apparent danger of death, great bodily harm or a felony being inflicted upon him by the victim; and (4) the danger which defendant claims to have relied upon, somewhat illusionary at best, when coupled with the force with which defendant drove the knife into the victim’s chest, strongly suggests that defendant resorted to more force than could be said to have reasonably appeared necessary under the circumstances. Although this court’s research has failed to disclose that flight has heretofore been specifically discussed in this state in the limited context of self-defense, it has been held in other jurisdictions that flight is inconsistent with self-defense. See Thomas v. State, 214 Ark. 736, 217 S.W.2d 839, 840 (1949); Yarbrough v. State, 13 Okl.Cr. 140, 162 P. 678, 679 (1917); Washington v. State, 113 Tex.Cr.R. 291, 21 S.W.2d 524, 525 (1929). All of the above substantially negates any basis for holding that the state’s evidence established that defendant acted in self-defense as a matter of law, and by the same token affirms the action of the trial court in submitting the question of self-defense to the jury by appropriate instructions.

Defendant’s second point questions the admissibility of State’s Exhibit No. 9 (knife) on the sole ground that there was a “break in the chain of custody” from July 28, 1976, the date the knife was first observed by the sheriff, until September 2, 1976, the date the knife was seized by the sheriff. Literally speaking, defendant’s second point — “the trial court erred in admitting into evidence State’s Exhibit No. 9 over the objection of the defendant when there was a distinct and complete break in the chain of custody of State’s Exhibit No. 9” — does not question the knife as being the murder weapon. Bearing this in mind, the looming fallacy of defendant’s second point is quickly discernible. When, as here, an exhibit is susceptible of positive identification and is sufficiently identified to warrant its admission into evidence, the importance that might otherwise attach to its chain of custody fades into obscurity. State v. Granberry, 484 S.W.2d 295, 300-01 (Mo. banc 1972), and State v. Holman, 556 S.W.2d 499, 504 (Mo.App.1977). Defendant’s unmitigated extrajudicial admission that he obtained the knife with which he stabbed and killed the victim from the kitchen counter and after fatally using it washed and put it back where he originally got it goes far to eliminate any aura of prejudice that might otherwise surround the admission of State’s Exhibit No. 9 in evidence. Everything considered, defendant’s second point fails to demonstrate any reversible error.

In his third point defendant faults the trial court for permitting the late endorsement of a witness’ name on the information by the state. Defendant attempts to forge reversible error from the following facts. The state, in response to defendant’s request for discovery pursuant to Rule 25.-32(A)(1), omitted naming Charles Nichols as one of the persons whom it intended to call as a witness. According to the prosecuting attorney, the state’s reason for not doing so was that Nichols’ identity was then unknown. This also accounted for Nichols’ name not being originally endorsed on the information as a witness. The prosecuting attorney further advised the trial court that Nichols’ identity as one of the two boys who stopped by and visited with the victim and the defendant at the victim’s home on the afternoon of July 22, 1976, went undiscovered until a “week or week and a half” before August 11, 1977, the date the case was set for trial. On August 4, 1977, the prosecuting attorney gave defense counsel notice that he would seek to have Nichols’ name endorsed as an additional witness on the information and on August 8, 1977, the prosecuting attorney gave defense counsel a summary of Nichols’ anticipated testimony. Parenthetically, although no specific finding as such was made by the trial court, it is implicit from the record that the trial court accepted as true the prosecuting attorney’s explanation of why Nichols’ name was not originally endorsed on the information as a witness.

On the morning of the trial, defendant objected to Nichols’ name being endorsed as a witness on the information. The trial court withheld its ruling and ordered the state to make Nichols available to defense counsel for an “interview” before the trial commenced and further ordered defense counsel to report back to him if the interview developed any “additional matters or material” which would necessitate further investigation “to prepare for [Nichols’] testimony”. After defense counsel interviewed Charles Nichols, the trial court specifically asked defense counsel if the interview revealed anything which would “dictate or necessitate any further investigation” of the witness or his proposed testimony. Defense counsel affirmatively stated to the court that the interview had not revealed anything which would require further investigation and tacitly conceded that what the witness told him was quite innocuous. Against this background the trial court permitted the state to endorse Charles Nichols’ name on the information as an additional witness. Defendant reasons his objection to the late endorsement of Nichols’ name on the information as a witness to be tantamount to a request for the trial court to have imposed the sanction of exclusion authorized in Rule 25.45 because of the state’s failure to include Nichols’ name and address when it responded to the defendant’s request for discovery pursuant to Rule 25.32 some five and a half months earlier. This highly convoluted reasoning indulged by defense counsel cannot withstand close scrutiny. Rule 25.37, captioned “Continuing Duty to [make] Disclosure”, recognizes that certain information sought by way of discovery, for example the existence and identity of all potential witnesses, may not be known when an original request for discovery is made. For this obvious reason the Supreme Court wisely provided that a party has a continuing duty to disclose subsequently obtained information if it be information which he would have been required to disclose if known at the time of the request or order for disclosure. The state complied with Rule 25.37, supra, and defendant’s third point could properly be laid to rest on that ground alone.

The tenor of defendant’s argument however, perhaps unwittingly, is that the state knew of the existence and identity of Nichols when it responded to defendant’s earlier request for discovery pursuant to Rule 25.32. Assuming, arguendo, that the state previously knew of the existence and identity of Nichols, an erroneously assumed fact which lies at the core of defendant’s argument, it is patently clear that the imposition or non-imposition of a sanction authorized by Rule 25.45, supra, for failure to comply with a request or order for discovery rested in the sound discretion of the trial court. The rule itself says so. Rule 25.45, supra, captioned “Sanctions”, reads: “If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances. Wilful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court.” (Emphasis added.) Likewise, eases applying it have said so. State v. Sykes, 559 S.W.2d 643, 646 (Mo.App.1977); State v. Helms, 559 S.W.2d 587, 590 (Mo.App.1977), and State v. Moten, 542 S.W.2d 317, 320 (Mo.App.1976). Defendant’s argument notwithstanding, Rule 25.-45, supra, does not automatically require the imposition of one of the sanctions authorized therein when a party fails to comply with a proper request or order for discovery. As pointed out in State v. Helms, supra, at p. 590, whether or not a trial court has abused its discretion in not imposing a sanction authorized by Rule 25.45 is tested in terms of the nature of the charge, the evidence presented by the state, the role which the nonproduced information would likely have played, and whether the nonpro-duced information was of such character that a reasonable likelihood existed that if produced earlier it would have affected the outcome of the tria!. The record discloses that the trial court approached the state’s request to endorse Nichols’ name on the information as an additional state’s witness with a commendable sense of caution and care, and the late endorsement was not permitted until after defense counsel had interviewed the proposed witness and favorably reported back to the court. At that point of time defense counsel himself effectively convinced the trial court that no prejudice would inure to defendant by permitting the late endorsement of the witness. Without hesitation or equivocation it may be said that the trial court’s handling of the matter was the very antithesis of an abuse of discretion.

Getting down to the real crux of the matter, Rule 24.17, addressing the endorsement of the names of witnesses on indictments and informations, although never mentioned by either party, provides, inter alia, that “[t]he names of other witnesses may be added at any time upon order of the court and after notice to the defendant or his attorney of record. . . . ” (Emphasis added.) In conjunction with this segment of Rule 24.17, supra, an order permitting late endorsement of the name of a witness on an indictment or information is not deemed to constitute an abuse of discretion where there is no showing that prejudice inured to the defendant from doing so. State v. Strawther, 476 S.W.2d 576, 579 (Mo.1972). As heretofore pointed out, no prejudice from doing so was ever shown by defendant. As a matter of fact, the record affirmatively demonstrated that doing so did not prejudice him. Defendant’s third point is entirely without merit.

Defendant advances an amazing and extraordinary proposition in his fourth and final point — that the trial court erred in “failing to direct a verdict of acquittal in favor of defendant during the [closing] argument of the prosecuting attorney” because of the latter’s comment “on the failure of the defendant to report to law enforcement officers from the date of the homicide until February 3, 1977”. During the trial defendant took the stand and testified in his own behalf. His testimony, with certain minor exceptions, corresponded with the extrajudicial statement he made to the Sheriff of DeKalb County. The following questions were put to the defendant by the state, without objection, during cross-examination, and defendant responded with the following answers:

“Q From the time of July 22nd, 1976, until the time of the F.B.I. investigation on February 3rd, 1977, did you ever contact any law enforcement people?
A No, Sir.
Q Did you ever tell any of them that you’d killed a man but it was in self defense?
A You mean before?
Q Before February the 3rd?
A No, Sir.”

During his closing argument to the jury the prosecuting attorney, obviously alluding to the above, made the following statement: “He admitted that from July, 1976, until February, he called no law enforcement people.” Defense counsel immediately interrupted the prosecuting attorney at that point, beckoned him to approach the bench, and out of the presence of the jury objected to the line of argument immediately heretofore referred to. Defense counsel’s objection was sustained, and the trial court cautioned the prosecuting attorney to refrain from any further reference to “defendant’s silence”. This was an isolated incident, and the subject was never again touched upon or mentioned. Although defense counsel objected to the complained of line of argument, and had his objection sustained by the trial court, he sought no further relief of any kind. He did not ask the trial court to strike the statement, or to instruct the jury to disregard it, or to declare a mistrial. It is particularly noteworthy that defense counsel did not request the amazing and extraordinary relief he now appears to be pursuing, namely, outright acquittal by reason of the complained of statement. Defense counsel’s objection, not having been joined with or followed by a request for any type of specific relief, conjoined with the action taken by the trial court, can only be construed, at best, as an implied request for limited relief, i. e. that the prosecuting attorney cease and desist from making any further reference to the complained of subject matter. That was done. Defendant is in no position to presently complain that he was entitled to some further relief. State v. Lafferty, 415 S.W.2d 792, 795 (Mo.1967). Defendant’s fourth and final point fails to afford any ground for relief.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Charles E. LARRABEE, Appellant.
    No. KCD29360.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.

      Jeffery L. Alena, Gepford & Sears, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

Defendant, charged as a second offender, was tried to a jury for the crime of robbery in the first degree by means of a dangerous and deadly weapon (Sec. 560.120, RSMo 1969 and Sec. 560.135, RSMo Supp.1975), found guilty, and sentenced by the court to twenty years imprisonment in the Missouri Department of Corrections.

Synopsized, the evidence discloses that defendant was positively identified by the victim and his son as the person who robbed him at gunpoint on the evening of January 16, 1976, and relieved him of one hundred sixty dollars. Defendant has not challenged the sufficiency of the evidence to sustain his conviction, and it is self-evident why he has not done so.

A single point is pressed by defendant on appeal — error in not granting a new trial because of ineffective assistance of counsel, all in contravention of defendant’s right to the assistance of counsel as guaranteed by the Sixth Amendment to the Constitution of the United States and Art. I, § 18(a) of the Missouri Constitution (1945). For reasons hereinafter noted, defendant’s single point has not been preserved for appellate review.

Chronologically, the guilty verdict in this case was returned by the jury on October 5, 1976. Defendant filed a motion for new trial on November 5, 1976, absent any record entry showing or suggesting that he applied for and the trial court granted additional time within which to do so. Rule 27.20(a), so far as here apropos, provides that “[sjuch motion [motion for new trial] shall be filed before judgment and within ten days after the return of the verdict: Provided, on application of defendant, the court may extend the time for filing such motion for an additional period of thirty (30) days: Provided further, the court shall have no power to make another or further extension of the time for filing said motion.” (Emphasis added.) The transcript on appeal in this case fails to contain or mention any record entry that defendant applied for and was granted additional time within which to file his motion for new trial. Ergo, the record on appeal leaves this court no choice but to conclude that defendant’s motion for new trial was required to be filed “within ten days after the return of the verdict”, Rule 27.20(a), supra, which was not done. If defendant applied for and the trial court granted defendant an extension of time to file his motion for new trial it was incumbent upon him to see that any record entry doing so was included in the transcript on appeal. Rule 81.12(a), as made applicable by Rule 28.18; Jackson v. State, 514 S.W.2d 532 (Mo.1974). Defendant’s failure to preserve the single point now pressed on appeal, on the precise ground hereinabove set forth, was specifically raised by the state in its brief. Notwithstanding notice given by the state’s brief, defendant, to date, has never sought leave pursuant to Rule 81.12(c) to file a supplemental transcript if, in fact, an application for and an extension of time was granted by the trial court for defendant to file his motion for new trial. Defendant’s continuing reliance on the transcript on appeal as originally filed in this case buttresses the conclusion that additional time within which to file a motion for new trial was never applied for by defendant or granted by the trial court.

The requirements of Rule 27.20(a), supra, pertaining to the time for filing motions for new trial, are mandatory and noncompliance therewith must be noticed on appeal, sua sponte if not raised by an opposing party, as neither the courts nor the parties can waive the requirements of the rule. State v. Tucker, 451 S.W.2d 91 (Mo.1970); State v. Rapp, 412 S.W.2d 120 (Mo.1967); State v. Maddox, 549 S.W.2d 931 (Mo.App.1977), and State v. Morse, 526 S.W.2d 432 (Mo.App.1975). Defendant’s tardily filed motion for new trial (filed on the 30th day after the verdict was returned) was a nullity and preserved nothing for appellate review. State v. Richardson, 519 S.W.2d 15 (Mo.1975); State v. Brown, 543 S.W.2d 796 (Mo.App.1976), and State v. Morse, supra.

The issue embroiled in defendant’s single point on appeal, ineffective assistance of counsel, even if properly preserved for appeal, is ordinarily relegated to disposition by way of a postconviction motion pursuant to Rule 27.26 to vacate the judgment and sentence. State v. Lindley, 545 S.W.2d 669 (Mo.App.1976). Exceptions to this accepted principle, and consideration of claims of ineffective assistance of counsel on direct appeal, are narrowed to those infrequent instances where the records on appeal disclose that sufficient facts essential to a meaningful review of the issue have been developed. State v. McQueen, 431 S.W.2d 445 (Mo.1968). The crux of defendant’s charge of ineffective assistance of counsel at the trial level is twofold: (1) trial counsel’s failure to investigate or call purported exculpatory witnesses about whom defendant says he timely advised trial counsel; and (2) trial counsel’s failure to file a motion to suppress or otherwise object to defendant’s identification by the victim and his son. Trial counsel was never called as a witness or otherwise afforded an opportunity to be heard on the twofold charge of ineffective assistance. The only input below as to whether trial counsel was ever notified of the existence and identity of the purported exculpatory witnesses, and as to whether trial strategy was or was not involved in trial counsel’s failure to file a motion to suppress or otherwise object to defendant’s identification by the victim and his son, came solely from defendant.

Ineffective assistance of counsel is a serious charge to level against a lawyer and, if he is available, as here, one on which he should be heard in order to judicially resolve the charge. When, on direct appeal, as here, trial counsel, although available, was never afforded an opportunity to be heard, it is difficult to perceive how it can be said that the record presented on appeal discloses that sufficient facts essential to a meaningful review of the issue were developed.

All areas of review mandated by Rule 28.02 have been carefully considered and no error within the purview of the rule has been found.

Judgment affirmed.


author: PRITCHARD, Judge.

text:
    STATE of Missouri ex rel. Robert FALCONE, Relator, v. The Honorable Julian M. LEVITT, Judge of the Circuit Court of Jackson County, Missouri, Division Seventeen, Respondent.
    No. KCD 30054.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.

      Max W. Foust and E. Wayne Taff, of counsel: Morris, Foust & Beckett, Kansas City, for relator.
    James R. Borthwick and William H. Sanders, Jr., of counsel: Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for respondent.
    Before WASSERSTROM, P. J., SWOF-FORD, C. J„ and SHANGLER, DIXON, PRITCHARD, SOMERVILLE and TUR-NAGE, JJ.
   PRITCHARD, Judge.

The underlying action is one to recover monies due from an insurance agent by American Fidelity Fire Insurance Company against F.I.C. Insurance Agency, Inc.; Fal-cone Companies, Inc.; and Robert Falcone, individually. [Case No. CV 76-0673 in the Circuit Court of Jackson County, Missouri.] During the course of the proceedings American filed interrogatories addressed to defendants “to be answered separately and fully in writing under oath by each defendant.” After American’s first motion to compel answers was sustained, Falcone, individually, refused to answer all the interrogatories “under the provisions of the Fifth Amendment of the United States Constitution on the grounds that my answer might tend to incriminate me.” Upon American’s further motion to compel answers to the interrogatories, or in the alternative, to strike defendants’ pleadings, the court struck all of the pleadings including those of the individual defendant, Falcone. Falcone then applied for a writ of prohibition in this court alleging that the trial court was without authority to strike his pleadings for his failure to answer the interrogatories because such answers might incriminate him. The preliminary rule in prohibition issued in this court ordering respondent to give no further effect to his order striking the pleadings of personal defendant Robert Falcone, except that he might rescind it. That alternative was not accepted, so the parties have briefed and argued the issue.

The corporate defendants are not parties here, and nothing is presented as to the propriety of striking their pleadings—• which is the final punitive action prior to entry of judgment against them. Falcone’s individual status, as far as claiming the right against self-incrimination, is different from that of the corporate defendants, which have no privilege against self-incrimination. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906) (disapproved on other grounds in Murphy v. Waterfront Comm, of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678); Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911); Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974). Nor does a person, acting in his official capacity as an agent or officer of an artificial entity, have a Fifth Amendment privilege against self-incrimination. Annotations, 52 A.L.R.3d 636; 48 L.Ed.2d 852.

Falcone does not seek any affirmative relief in the trial court which might justify the striking of his pleadings for failure to answer interrogatories. See Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483, 486 (1955); Geldback Transport, Inc. v. Delay, 443 S.W.2d 120, 121 (Mo.1969). Falcone does, however, come within the protection of State ex rel. Pulliam v. Swink, 514 S.W.2d 559, 560 (Mo. banc 1974), making a writ of prohibition absolute where relator properly invoked his constitutional privilege. See also the there cited case of State ex rel. North v. Kirtley, 327 S.W.2d 166 (Mo. banc 1959). The parties should, however, note what was said in the Pulliam case, page 561[3], “Once the privilege has been invoked to preclude discovery, trial courts have the power not to allow the defendant to change his position and testify at trial to his benefit.”

There was also a motion directed to all defendants, including Falcone, to produce specified corporate records. Falcone has no right to refuse to produce corporate documents which are in his possession and control. Wilson v. United States, supra, 31 S.Ct. 544, 546. The fact that Falcone may be or have been the sole shareholder of the corporate defendants does not cause the records sought to be produced to become personal to him. Christianson v. United States, 226 F.2d 646, 654 (8th Cir. 1955). And if the corporations have ceased to exist, and their records have been transferred to him personally, that does not create a privilege, Wheeler v. United States, 226 U.S. 478, 490, 33 S.Ct. 158, 57 L.Ed. 309 (1913), nor does the fact that the request to him to produce the documents was a personal one give rise to a privilege, United States v. Greater New York Live Poultry Chamber of Commerce, 34 F.2d 967 (D.C.N.Y.1929).

Although Falcone has a personal privilege against self-incrimination under the cases first above noted as would entitle him to have the preliminary rule in prohibition made absolute, that relief should be conditioned upon his producing the corporate records against which he has no privilege.

The preliminary rule in prohibition is made absolute on the following conditions: Upon receipt of the mandate from this court, respondent shall set a reasonable time within which plaintiff, American Fidelity Fire Insurance Company, may file an amended request directed to Falcone personally for the production of corporate documents. Falcone shall respond to the amended request within 20 days after service thereof upon him, unless within that time specific objections and reasons therefor shall be lodged with respondent, who, after rulings upon any objections, shall thereafter set a time for Falcone’s response, all under Rule 58.01. Should Falcone persist in refusing to produce documents, his pleadings may be stricken, or respondent may apply other sanctions under Rule 61.01, in which event this conditional absolute preliminary rule in prohibition shall be deemed dissolved.


author: SHRIVER, Presiding Judge.

text:
    KMC CO., INC., Plaintiff-Appellant, v. Harvey E. NABORS and James Nabors, d/b/a Nabor’s Food Giant, et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 28, 1977.
    Certiorari Denied by Supreme Court March 13, 1978.
    Wayne Christeson, Jr., Butler, Vines, Babb & Threadgill, Knoxville, for plaintiff-appellant.
    Eugene Jared, Cookeville, for defendants-appellees, Harvey E. Nabors and James Na-bors.
    John P. Hudson, Cookeville, for petitioner-receiver.
   OPINION

[Recitation of Proceedings Below Abbreviated]

SHRIVER, Presiding Judge.

The plaintiff, KMC Co., Inc., filed a complaint in the Chancery Court of Putnam County, Tennessee on October 15, 1975 which was sustained as a general creditors’ bill. After extensive proceedings involving the disposition of the assets of the defendant Harvey E. Nabors d/b/a Nabor’s Food Giant, the Court found that the cost of administering the receivership, including the receiver’s compensation and that of his attorney, amounted to $17,500.00 and decreed that the plaintiff, KMC Co., Inc., should pay one-half of the costs incurred, or $8,750.00.

From said decree, the plaintiff has appealed and assigned errors.

Assignments of Error

There are two assignments, as follows:

“I. The order of the Court below charging costs to appellant is contrary to the established practices of equity and is not supported by any material evidence.
II. To affirm the judgment of the Court below would utterly destroy the established right of a general creditor to seek satisfaction under a general creditors’ bill.”

The Pleadings and Proceedings Below

The original complaint states that the suit is brought on behalf of plaintiff and all of the creditors of the defendant, Nabor’s Food Giant; that said defendant is indebted to the plaintiff in the sum of $22,218.48 for goods supplied to said defendant which is a retail establishment whose principal business is the sale of food and groceries.

It is averred that there are other creditors of the defendant which remain unpaid but whose names and amounts owed to them are unknown to the plaintiff and that there exists a danger of the assets of the defendant being lost and dissipated through the costs and expenses of a multiplicity of suits; that defendant is insolvent and cannot pay its debts as they mature, and that a receiver should be appointed to receive the income of defendant, to investigate claims being made against it, to direct its assets and pursue the claims on behalf of the defendant corporation against others.

A judgment by default was taken against the defendant but a motion was filed to set aside the default judgment and an answer tendered with said motion, admitting its indebtedness to plaintiff in the amount set forth in the bill of complaint but denying that defendant is insolvent.

On December 15, 1975, judgment for plaintiff was entered against defendants for $22,218.48 providing for the appointment of a Receiver if the judgment was not satisfied within thirty days.

On January 7, 1976, an order was entered appointing James D. Little Receiver on giving bond in the amount of $10,000.00.

Numerous claims were filed and certain creditors, including Commerce Union Bank and Maynard Food Store, filed petitions claiming right to possession of items of equipment in defendant store under conditional sales contracts.

Pursuant to a petition filed by the Receiver, an order was entered reciting that, by agreement, a threatened foreclosure sale was postponed.

Citizens Bank of Cookeville filed a claim and cross-complaint reciting that defendant was indebted to it in the amount of $159,-735.04, secured by deeds of trust to certain property of defendants, and asked that it be sold and the proceeds of sale applied to the indebtedness of defendants according to priority.

The sale was held and the Receiver reported on the sale of the foregoing property to the Citizens Bank of Cookeville as the highest and best bidder for $175,400.00, and a decree vesting title was entered.

The Receiver also filed a preliminary report of monies received in the liquidation of the assets of the defendant Nabors Food Giant for a total of $16,037.38 and for miscellaneous funds received of $1,121.32, or a total of $17,158.70, a part of the merchandise equipment being secured by a trust deed in favor of the Bank of Cookeville.

Numerous motions and petitions and orders in response thereto were filed, including an order allowing an advance of $2,500.00 to the receiver and $2,500.00 to his counsel.

On February 10, 1977, the Chancellor entered an order fixing the Receiver’s fee at $10,000.00 and that of John P. Hudson, his attorney, at $7,500.00.

And, finally, on the 9th day of March, 1977, the Court entered a document designated “Memorandum Opinion” which he ordered filed as a decree wherein it is recited that it appears there is no common fund of consequence out of which the costs of the cause could be paid and that costs would have to be paid by the various parties participating in the case, and ordering that the plaintiff, KMC Company, Inc., pay one-half of the total cost and that the other one-half be paid out of the fund reserved and set aside from the proceeds of the sale.

Our Conclusions

The record shows the following facts:

In the Fall of 1975, Harvey Nabors, a grocer, was insolvent such that he owed the appellant $22,218.48, owed a judgment of $8,857.00, owed a debt of $45,740.14 to C. B. Ragland Company, and had defaulted upon a real property mortgage such that the Citizens Bank of Cookeville had begun foreclosure proceedings. At this time, KMC Company, Inc., the appellant, presented these facts to the Trial Court seeking a general creditors’ bill in equity and the appointment of a receiver. The Court gave Harvey Nabors thirty days to comply with his debt to appellant or it would appoint a receiver. After twenty-one days, Harvey Nabors voluntarily submitted to the receivership. Thereafter, the insolvent’s property was inventoried and sold. The proceeds of the sale did not amount to enough to provide for anything but secured debts and there were no proceeds for the general creditors. The cost of the receivership was $17,500.00.

It is argued by counsel for the appellees that the appellant, KMC Company, Inc., caused the holders of prior mortgages to jointly incur total court costs of approximately $20,000.00, considerably more than the amount of the encumbered assets produced. It is asserted that the act of the KMC Company, Inc., in abandoning its role as plaintiff and not guiding the direction of the ensuing litigation resulted in the very large costs by way chiefly of fees to the receiver and his counsel which could have been avoided. It asserts that, therefore, the Chancellor was justified in taxing one-half of these costs to the appellant who procured a judgment in the proceedings for $22,218.48 and received not one penny in payment of this judgment debt.

The position of counsel for appellee, Citizens Bank of Cookeville and the Bank of Cookeville, seem to overlook the fact which is abundantly clear from the proceedings as set out hereinabove, that they each voluntarily filed petitions in the Court asking that the receiver take charge of the real estate and other assets which were held as security for their respective debts and that the receiver also voluntarily applied to the Court by motion and petition to have a scheduled sale of the property by the trustee under certain deeds of trust in favor of the Banks enjoined so that he could investigate and enter into the matter and, as above indicated, the Bank then petitioned the Court to have the receiver act in disposing of the property rather than the trustee under the trust deeds.

It is to be remembered that the receiver is an officer of the Court, appointed by him and subject to his instructions in respect to the property that he deals with.

It is strenuously argued by counsel for appellees that the plaintiff was derelict in its duty in not pursuing this case and giving direction to the proceedings. This overlooks two facts that seem relevant.

First, that the plaintiff had every right to seek the assistance of the Court in undertaking to conserve and protect the assets of the insolvent debtor and to try to collect the debt owing by the debtor to the plaintiff. We find nowhere in this record that the plaintiff misinformed the Court as to any facts relative to the defendant and the obligations it owed to the various creditors. There is no question but that the allegations in the original petition were true and correct and that, indeed, the debtor was hopelessly insolvent and that the appointment of a receiver was in order.

After the filing of the original petition, the Chancellor, finding that the debt to the plaintiff was legitimate, owing and past due, and considering the other circumstances indicated by the record, gave the defendant thirty days in which to liquidate the debt to the plaintiff; otherwise, a receiver would be appointed.

The record indicates that thereafter, before the expiration of the thirty days, the defendant and his counsel appeared before the Chancellor in Sparta, along with counsel for the plaintiff, and there voluntarily agreed that a receiver be appointed.

It became apparent that much of the equipment and goods in the defendant’s store were held under conditional sales contracts with title retained by the seller, while other goods were on lend or lease to the defendant with no title in said defendant, and that there was very little by way of assets that were unencumbered, many of which facts were not known to the plaintiff and which were not readily available since there was no public record of many of these obligations.

Under these circumstances, counsel for plaintiff realized there was probably nothing to be gained for his client by continuing to pursue this suit. However, it is doubtful that he had any other choice but to let it proceed under the petitions, motions and proceedings instituted by the receiver and by the two appellee Banks and some other of the secured creditors.

It is to be remembered that the Chancellor was in full control of these proceedings. He appointed the receiver; he permitted the receiver to employ counsel who was not the counsel of record for the plaintiff; he allowed the intervening petitioners to make use of the receiver in the proceedings by which the secured property was sold and through him instead of requiring that the trustees under the trust deeds conduct their own sales with responsibility to report to the Court about the proceeds.

Thus it is that most of the costs which amount to $17,500.00 were not incurred at the instance of the plaintiff but were incurred through actions over which the plaintiff had no control.

In Pope v. Knoxville Industrial Bank, Inc., 173 Tenn. 461, 465, 121 S.W.2d 530 (1938), the Court in dealing with the duties and authority of a receiver appointed in a general creditors’ suit, said:

“A receiver derives his authority from the act of the Court appointing him, and not from the act of the parties at whose suggestion or by whose consent he is appointed; and the utmost effect of his appointment is to put the property from that time into his custody as an officer of the Court for the benefit of the parties ultimately proved to be entitled, but not to change the title, or even right of possession, in the property.”

In 75 C.J.S. Receivers § 142, it is said:

“ . . .A receiver is, rather, for the time being, a ministerial officer and representative of the Court having charge of the receivership, and accountable to such Court, and has been referred to in some cases as an ‘arm,’ in other cases as a ‘hand,’ of the Court, and in still others as a part of its machinery. While the acts of a receiver are the acts of the Court for which he acts, the relationship of principal and agent does not exist between them; and since his appointment is for the benefit of all parties interested, he holds and manages the property for the benefit of those ultimately entitled and not primarily for the benefit of the party at whose instance the appointment was made.”

It is further said (Sec. 144):

“ . . . The sole control of the receiver belongs to the Court by which he is appointed.”

In Section 146, it is said:

“The administrative actions of the Court in charge of a receivership are at all times in its control, to be enforced or suspended as it sees fit, and, when mistakes occur, they are subject to its correction as long as it is administering the estate. So, the Court may enlarge or vary the powers and duties of the receiver as circumstances may demand . . .”

And, in Section 147, it is said:

“It is the duty of the Court to supervise and direct its receiver in his administration of the receivership, and to see that the property is handled by the receiver in such a way as best to serve the interests of all persons concerned. . . . ”

As indicated by Gibson’s Suits in Chancery, 5th Ed., § 1082, it is the general rule that the costs in a receivership proceeding are paid out of the proceeds in the hands of the receiver prior to distribution to the creditors and this rule is departed from only when an individual creditor is shown by the evidence to have a false claim or engaged in inequitable conduct.

Counsel for appellant cites Sklar v. Bernstein, 7 Tenn.App. 593, 601 (1928), where it is said:

“Cases may arise in which the Court will, if the fund in Court be sufficient for that purpose, require the parties, at whose instance a receiver is appointed, to meet the expense of the receivership; but it has been held that special circumstances must appear, which upon equitable principles will authorize the Court to fix liability upon plaintiff for such expenses, and the mere inadequacy of the property or fund to meet such expenses constitutes in itself no reason why liability should be fixed upon plaintiff who has been guilty of no irregularity, and who has succeeded in a suit for obtaining the relief asked.” [emphasis supplied]

For the reasons indicated herein above, we are impressed that it was unfair and inequitable to assess one-half of the costs of this cause to the plaintiff, including the receiver’s fee and that of his counsel for a total of $8,750.00. He is not shown to have filed this case improvidently. We think the costs should be borne by those who are responsible for incurring the major part of them.

The estate coming into the receiver’s hand for unsecured creditors was minimal, and justified no more than a minimal fee to the receiver and his attorney. The substantial fees awarded to the receiver and his attorney are justified only by the substantial assets which were encumbered, were not available to general creditors and which were liquidated by foreclosure sale for the sole benefit of secured creditors and at their specific request.

It results that the judgment of the Chancellor with respect to these costs is reversed and the cause remanded for the purpose of apportioning said costs equitably, that is, that the costs incident to liquidation of unencumbered assets for the benefit of unsecured creditors be paid out of the funds coming into the receiver’s hands from the liquidation of such unencumbered assets, and that the costs incident to the liquidation of encumbered assets for the benefit of secured creditors be paid out of the funds coming into the receiver’s hands from liquidation of said encumbered assets. If necessary, it would be in order to require secured creditors to restore to the receiver a sufficient amount of the money paid to them out of the latter fund to enable the payment of such costs.

REVERSED AND REMANDED.

TODD and DROWOTA, JJ., concur.


text:
    Alvin C. SPUNT, Plaintiff-Appellant, v. Eugene W. FOWINKLE, Joe C. Carr and Harlan Matthews, acting as members of the Licensing Board for the Healing Arts, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 24, 1978.
    Rehearing Denied March 23, 1978.
    Certiorari Denied by Supreme Court July 31, 1978.

      W. A. Moody, Nashville, for plaintiff-appellant.
    Brooks McLemore, Atty. Gen., Frank J. Scanlon, Asst. Atty. Gen., Nashville, for defendants-appellees.
   OPINION

SHRIVER, Presiding Judge.

The Case

This is an appeal by plaintiff, Alvin C. Spunt, a chiropractor, from a decision of Chancellor C. Allen High in the Chancery Court for Davidson County, wherein he affirmed a decision of the defendants, members of the State Licensing Board for the Healing Arts, acting in their official capacity, whereby they suspended for sixty days the license of plaintiff to practice chiropractic in Tennessee.

The Proceedings Below

Plaintiff-petitioner, Alvin C. Spunt, on November 12, 1974, filed his Petition for Writs of Certiorari and Supersedeas in the Davidson County Chancery Court wherein it was set forth that petitioner was charged by the defendant Licensing Board for the Healing Arts of the State of Tennessee with violation of T.C.A. § 63-123(2), (11) by exceeding the scope of his privileges as a licensee and invading the field of medicine as defined in T.C.A. § 63-4608 (sic) (§ 63-608), and that as a result of said charges a hearing was had before said Board wherein the charges were sustained and petitioner’s license suspended for a period of sixty days.

It is charged that there was no evidence to support the findings of the Board which were, therefore, arbitrary, and that the Board Chairman, Eugene W. Fowinkle, was disqualified by reason of economic interests from passing on the charges brought against petitioner, and that Board members Harlan Matthews and Joe C. Carr were disqualified by virtue of their lack of knowledge in the scientific exposition of the subject matter.

It is further charged that the action of the Board was unconstitutional as applied to this petitioner because it deprives him of his liberties, privileges and immunities without due process of law, and, further, because the Act purports to confer judicial powers upon an administrative tribunal composed of interested persons; that the Licensing Board for the Healing Arts of the State of Tennessee is without jurisdiction over the practice of chiropractic, and, further, that the Board of Chiropractic Examiners had previously passed on an identical action favorably to the petitioner and, therefore, the action of that Board was res judicata.

The prayer of the petition is for the issuance of a Writ of Certiorari requiring the filing in the Court of the transcript of the proceedings before the Board, and for the issuance of a Writ of Supersedeas setting aside the action of the Board.

The Order of Suspension of the Licensing Board for the Healing Arts was filed as a part of the record wherein the findings of the Board were set out in detail.

Thereafter, the Chancellor entered an Order stating:

“It appearing to the Court that counsel for the defendants do not oppose the petitioner’s application for supersedeas in aid of certiorari, it is ORDERED that a writ of supersedeas issue staying the effect of the Order of Suspension appealed from pending final action on the petition by this Court or on appeal, upon the posting of a supersedeas bond in the amount of $250.00.”

The Answer of the defendants admits certain allegations in the petition with respect to the proceedings and denies all allegations with respect to lack of jurisdiction and competence of members, etc.

After a hearing the Chancellor, on March 23, 1977, filed an exhaustive and well-reasoned Memorandum Opinion wherein, among other things, he held:

“This case is before the Court for review of the action of the Licensing Board of Healing Arts suspending for sixty (60) days plaintiff’s license to practice chiropractic. The writ of certiorari was granted in the matter prior to the passage of the Uniform Procedures Act, T.C.A. § 4-501, et seq. Review is made, therefore, pursuant to the common law writ of certiorari. T.C.A. § 27-801.
The scope of review under a common law writ of certiorari is limited to the inquiry of whether the administrative body has exceeded its jurisdiction or acted illegally. Anderson v. Carter, 512 S.W.2d 297 (Tenn.App.1974).
By letter of April 22, 1974, the Board notified plaintiff that he was charged with violating T.C.A. § 63-123(2) and § 63-123(11) by exceeding the scope of his license under § 63-401 and invading the field of medicine by making pap smears in the course of examinations, diagnosis and treatment; by drawing and analyzing blood in the course of examination, diagnosis and treatment; by conducting a complete physical examination in the course of examination, diagnosis and treatment.
A hearing was held before the Board on September 10 and 11, 1974. Plaintiff presented witnesses, testified in his own behalf and was represented by counsel.
Plaintiff testified that during the course of his practice he did conduct along with general visual and manual examinations a general physical examination which included making pap smears and taking blood for analysis.
Other licensed chiropractors testified that performing physical examinations on their patients including drawing blood and making pap smears were done in order to diagnose the patients’ condition and to determine the appropriateness of chiropractic treatment.
The Board found that the plaintiff did take blood specimens and pap smears in the course of his practice of chiropractic in violation of T.C.A. § 63-608. The Board found no evidence of unprofessional conduct by plaintiff and made no finding as to violation of § 63-123(2).
The Board exercised its authority under T.C.A. § 63-123 and suspended plaintiff’s license for sixty (60) days.
A person is regarded as practicing medicine who ‘shall treat or profess to treat, operate on, or prescribe for any physical ailment or any physical injury to or deformity of another,’ but chiropractors ‘not giving or using medicine in their practice’ are not to be regarded as practicing medicine. T.C.A. § 63-608.
The exception made in T.C.A. § 63-608 for chiropractors not giving or using medicine in their practice does not preclude a finding that a chiropractor has engaged in the practice of medicine in violation of T.C.A. § 63-123(11).”

The Opinion continues by reciting that the practice of doctors of medicine covers all human illnesses and diseases, their diagnosis, treatment and prevention, citing Ison v. McFall, 55 Tenn.App. 326, 400 S.W.2d 243 (1964), whereas, the field of chiropractic has been construed to be limited by statute to the treatment of illnesses and diseases of the human body which chiropractors reasonably believe can be aided by manipulation of the spine, the chiropractor being licensed to engage in the science of palpating, analyzing and adjusting the articulations of the human spinal column and adjacent tissue by hand, and that the field of chiropractic encompasses no more than these activities.

It is pointed out that although the plaintiff argues persuasively that chiropractors are trained to do diagnostic procedures, the field of chiropractic, as defined by statute, does not permit the performance of these diagnostic procedures which will not be presumed to be permitted implicitly in the language of the statute.

It is further held in said Opinion that the Board of Healing Arts did not act arbitrarily or illegally in determining that the procedures performed by the plaintiff extended into the field of medicine for which he was not licensed, and, further, that the Board did not deprive the plaintiff of property without due process, and that under T.C.A. § 63-122, the Licensing Board of Healing Arts has jurisdiction of all licensed practitioners of the healing arts in Tennessee.

It is noted in said Opinion that the proceedings of the Licensing Board were not rendered illegal by the presence of Dr. Fow-inkle, a licensed medical doctor, and by the presence of the other members but that the plaintiff was afforded a full and fair hearing by the Board, and, finally, that the statute as construed by the Board is not unconstitutional.

The Opinion concludes by stating:

“The Board has not exceeded its jurisdiction or acted illegally.”

A decree was entered implementing the foregoing Opinion and an appeal prayed for, granted, and perfected to this Court.

Assignments of Error

Appellant has filed seven assignments of error which may be summarized by stating that the Chancellor erred in holding that the Licensing Board for the Healing Arts had not exceeded its jurisdiction or acted illegally and arbitrarily; that it was error to hold that the field of chiropractic as defined by statute does not permit the performance of diagnostic procedures such as those performed by petitioner; and that it was error to hold that the diagnostic procedure of petitioner invaded the field reserved exclusively for medical doctors.

The Facts and Our Conclusions

The material facts involved in the case at bar are not in dispute.

There is no question that the Licensing Board of the Healing Arts cited Dr. Spunt for a hearing before the Board on a charge of having violated the statutes regulating the healing arts and, specifically, the practice of chiropractic by engaging in certain diagnostic procedures which the Board insisted were an invasion of the field of medicine reserved to doctors of medicine.

After a full hearing, the Board sustained the charges.

As is stated by counsel for plaintiff-appellant, the issues for decision on this appeal are: (1) Whether the State of Tennessee acting by and through the Board of Healing Arts has authority to restrict, in the absence of an applicable statute, Dr. Spunt from performing differential diagnostic procedures; and (2) Did the State violate the due process clause of the Constitution in its order suspending for sixty days Dr. Spunt’s license to practice his profession.

The record shows that Dr. Spunt, testifying before the Board, readily admitted that he made Pap smears, drew blood for analysis and conducted physical examinations in the course of his practice and he argued that he was by training and experience qualified to perform such procedures and that they were performed only for the purpose of making a differential diagnosis to determine whether or not an individual patient had a condition for which chiropractic treatment would be appropriate and safe. Also, several other licensed Tennessee chiropractors testified that they routinely performed similar procedures for the same purpose and that it was a common practice among chiropractors in Tennessee.

On the other hand, the State argues that despite any apparent ability of Dr. Spunt to perform such procedures, or in spite of any merit in their being performed, the statute defining the practice of chiropractic does not authorize chiropractors to perform such procedures which are, in effect, the practice of medicine for which Dr. Spunt holds no license.

The applicable statutes of the State embraced in Title 63, Professions of the Healing Arts, creates in Section 63-101 a Board for the Healing Arts composed of the Commissioner of the State Department of Public Health, the Secretary of State, and the Treasurer of the State.

Section 63-102 defines the scope of powers and recites that the Board shall have the exclusive power and authority to issue all licenses or duplicates of licenses authorizing the practice of the healing arts or any branch thereof in the State of Tennessee, and for the purpose of this chapter, the practice of the healing arts is defined as offering or undertaking to diagnose, treat, operate on, or prescribe for any human pain, injury, disease, deformity, or physical or mental condition.

And, under 63-122, the State Licensing Board for the Healing Arts, in addition to the powers and duties vested in it by previous sections, is given concurrent power with that vested in the various Examining Boards authorized to enforce compliance with and regulation of the practice of the healing Arts.

Section 63-123 providing grounds for suspension or revocation of license and Section (11) thereunder states:

“(11) Unlawful invasion of the field of practice of any profession mentioned in this chapter which the licensee is not licensed to practice.”

Under Chapter 4, entitled “Chiropractors,” Section 63-401 provides:

“Chiropractic is defined as the science of palpating, analyzing and adjusting the articulations of the human spinal column and adjacent tissues by hand.”

And, Section 63-608, under the title “Medicine and Surgery,” defines the practice of medicine, stating:

“Any person shall be regarded as practicing medicine within the meaning of this chapter who shall treat, or profess to treat, operate on, or prescribe for any physical ailment or physical injury to or deformity of another.”

It is then provided that the section shall not be construed to apply to the administration of domestic or family remedies in cases of emergency, nor to dentistry, nor to veterinary surgeons, or to osteopaths, or chiropractors not giving or using medicine in their practice, “or to opticians ... or to Christian Scientists.”

Thus it is seen that T.C.A. § 63-123(11) vests in the State Licensing Board for the Healing Arts the authority to discipline any healing arts practitioners who are guilty of unlawfully invading another field of the healing arts for which the practitioner is not licensed and any licensed chiropractor who, in the practice of his profession, engages in activities beyond the scope of those authorized in § 63-401, T.C.A., may be found to have invaded the field of medicine as defined in § 63-608, T.C.A., and as was held in Ison v. McFall, 55 Tenn.App. 326, 400 S.W.2d 243 (1964).

It is argued by counsel for the defendant Board that neither Code Section 63-412 and 63-415, nor the former Basic Science Law, Chapter, 2, Title 63, T.C.A., contain any implied legislative authority for a chiropractor to draw blood or make Pap smears for the purpose of making a diagnosis, and that such procedure is contrary to the provisions of the Tennessee Medical Laboratory Act, T.C.A., § 53-4101, et seq.

The Chancellor agreed with counsel for the defendant Board in these particulars and so held.

Counsel for Dr. Spunt earnestly argues that there is no specific statutory provision prohibiting him from performing the relatively simple procedures of drawing blood and making Pap smears and that there are no provisions which restrict this procedure to use by doctors of medicine. While it is true that there are no specific provisions in the Healing Arts Law or in the statutes providing for the practice of chiropractic which specify who may or may not perform these procedures, yet it is to be noted that the Board’s decision was not based entirely on a finding that Dr. Spunt performed the purely mechanical procedures of drawing blood and making Pap smears. On the contrary, the Board found that Dr. Spunt performed these procedures for the purpose of diagnosing various human diseases and ailments which were unrelated to chiropractic practice and that, therefore, Dr. Spunt went beyond the practice of chiropractic and invaded the field of medicine.

The mere mechanical process of making a Pap smear or of drawing a specimen of blood is not the question involved here. It is what was done in connection therewith and Dr. Spunt freely admitted that he examined these specimens to determine for himself whether or not there were abnormalities, such as cancer, and with respect to blood specimens, for determining the existence of certain ailments and in instances where there seemed to be complications he might send these specimens to a laboratory, but, after all, he was making the diagnosis by performing these examinations and then acting upon them.

Thus, it is plausibly argued that these procedures do not fall within the definition of chiropractic as defined in T.C.A. § 63-401.

This Court in Ison v. McFall, supra, compared the practice of medicine and the practice of chiropractic, stating:

“ . . In view of the definition given by T.C.A. § 63-401 ... we construe the field of chiropractic to be limited to the treatment of those illnesses and diseases of the human body which doctors of chiropractic reasonably believe can be aided by the manual manipulation of the spine. On the other hand, the field of doctors of medicine covers all human illnesses and diseases and their diagnosis, treatment and prevention.”

T.C.A. § 53-4122 provides:

“The collection of specimens shall only be performed under the immediate supervision of a physician, duly licensed dentist, medical laboratory director, medical laboratory supervisor, or medical laboratory technologist.”

In other Words, the collection of human specimens can only be performed by physicians, dentists, or licensed laboratory personnel under the immediate supervision of a physician or other recognized technologist.

As is pointed out by the Chancellor in his Memorandum Opinion, the scope of review under the common law writ of cer-tiorari is limited to the inquiry of whether the administrative body has exceeded its jurisdiction or acted illegally or arbitrarily, citing Anderson v. Carter, 512 S.W.2d 297 (Tenn.App.1974). Also see Hoover Motor Express Co. v. Railroad & Public Utilities Commission, 195 Tenn. 593, 261 S.W.2d 233 (1953), where it was said:

“Common law writ of certiorari does not bring up for determination any question except the question whether the inferior board or tribunal exceeded its jurisdiction, or acted illegally, arbitrarily or fraudulently.”

While the writer of this Opinion sympathizes with the position of Dr. Spunt and other licensed chiropractors in the State, nevertheless, the problem is one which properly addresses itself to the Legislature since the decisions of the Courts in Tennessee are uniform in their adherence to the proposition that if there is material and substantial evidence to support the findings of the Board or Commission, it will be affirmed unless there is a clear showing of illegality or lack of jurisdiction or arbitrariness, which we do not find to exist in the case at bar.

It results that the assignments of error are overruled and the judgment of the Chancellor is affirmed.

AFFIRMED.

TODD and DROWOTA, JJ., concur.


author: NEARN, Judge.

text:
    Joe L. DAVENPORT, Appellant, v. JAILER, CITY OF MEMPHIS, Appellee.
    Court of Appeals of Tennessee, Western Section.
    June 29, 1978.
    Certiorari Denied by Supreme Court Oct. 10, 1978.
    Brett B. Stein, Memphis, for appellant.
    Ike R. Clinton, Donna M. Fields, Memphis, for appellee.
   NEARN, Judge.

This is an appeal from the order of the Circuit Court denying a petition for writ of habeas corpus.

Davenport was incarcerated by the Juvenile Court of Shelby County for contempt of court for the willful failure to pay child support. The order of contempt fixed Davenport’s confinement in the Shelby County jail until such time as he paid $500 in child support.

The petition for writ of habeas corpus, inter alia, charged that in the Juvenile Court Davenport’s

“ . . . Sixth (6th) Amendment rights under the Constitution were violated as follows:
“(a) That at the time aforesaid, the petitioner did not have counsel representing him nor was he advised of his right to counsel.
“(b) That the Court never explained to him his right to counsel nor did he waive said right.
“(c) That the petitioner was denied compulsory process and the right of cross-examination and confrontation at all critical stages of a criminal proceeding.”

The Circuit Court heard proof including the testimony of Davenport and the Court was of the opinion that Davenport “ . . . was not entitled to appointed

counsel at the contempt hearing before Juvenile Court on November 21, 1977 as such hearing was in the nature of civil contempt.
“That the Petitioners Sixth (6th) Amendment rights to counsel at such hearings do not, therefore, apply. Accordingly, the allegations as to petitioner’s right of being deprived of counsel in violation of his Sixth (6th) Amendment rights are, therefore, overruled.”

There is no Bill of Exceptions. We have only the technical record before us by which to consider the single Assignment of Error that:

I
“The trial court erred in holding as a matter of law that an accused is not entitled to all the Sixth Amendment guarantees as in a criminal trial on the grounds that a Juvenile Court contempt proceeding is ‘civil ’ in nature.”

Were it not for the Circuit Judge’s written findings that Davenport was not entitled to Sixth Amendment rights, we would have dismissed this appeal because a Bill of Exceptions would have been necessary to ascertain whether or not such rights were granted or denied. However, because of that finding by the Circuit Judge, we will consider the case as one in which Sixth Amendment rights were not granted. Actually, we are on shaky procedural grounds in making that assumption. But, since it is a matter of habeas corpus, we will seek to give the appellant’s Assignment of Error consideration.

Counsel for Davenport strongly relies upon the case of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972) as one being directly on point and controlling. We conclude it is neither.

In the Argersinger case, supra, which was a criminal matter, the defendant was charged with the offense of carrying a concealed weapon, which carried as punishment a fine up to $1,000 and imprisonment of up to six months, or both. Argersinger was not represented by counsel. The issue was whether he had waived his Sixth Amendment rights. The Court held:

“ . . . that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”

That holding has no application to this case, This is a matter in the nature of civil contempt. We do not play with semantics by creating, ipse dixit, an arbitrary distinction between the words “civil” and “criminal”. There is a real and practical distinction between the two. In Argersinger, supra, the defendant did not carry around the keys to the jailhouse in his pocket. He was not free to leave whenever he might choose. In this case, Davenport remained incarcerated of his own volition. He did have the keys to the jailhouse in his possession and was free to leave whenever he desired. We say this because we have a finding unassailed on appeal that Davenport, when incarcerated, had the then present ability to comply with the Juvenile Court’s order by paying the child support in which he was in arrears. If Davenport felt aggrieved by the Juvenile Court’s order, he had but to comply with it, as the record shows he was able to do, and appeal. If the Juvenile Court had been in error, the matter could have been corrected on appeal by an order of return of his money. Instead, he chose the accommodations of the jail.

It is the failure to comply with the orders of the Court when the ability to comply is or was within the power of the defendant that constitutes the offense. If incarceration results to compel the defendant to do what he is able to do and is required by law to do, the offense and incarceration is civil in nature, not criminal. (We need not now consider the instance where a defendant is ordered to jail for a specific number of days as punishment for failure to do what was previously ordered done.) In reality in such situations as this, it is a test of wills. If any order is to survive in the judicial system and for the general good of all, wherever there is afforded an adequate remedy to the citizenry by appeal, without the necessity of incarceration, the will of the Trial Court will prevail until overturned by the appellate process. However, should a citizen, with the means in his hand to be free, choose to remain incarcerated during the appellate process, having faith in his ultimate vindication, we suppose such is his right, but we cannot hold that constitutional rights, which exist to protect the citizen from government, have been violated when government does not detain that citizen. He has detained himself in the custody of government.

In short, we hold that in matters of civil contempt as this, the alleged contemnor is not entitled to all the constitutional guarantees as in a criminal trial.

The Assignment of Error is overruled and the judgment below affirmed.

Costs of appeal are adjudged against the appellant.

Done at Jackson in the two hundred and second year of our Independence and in the one hundred and eighty-third year of our Statehood.

MATHERNE and SUMMERS, JJ., concur.


author: WALKER, Judge.

text:
    Frankie SEELBACH and Richard Keith Dugger, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 6, 1978.
    Certiorari Denied as to Seelbach by Supreme Court, Sept. 18, 1978.
    Certiorari Denied as to Dugger by Supreme Court Nov. 6, 1978.

      Douglas J. Carter, Johnson City, for Seel-bach.
    Max E. Wilson and William L. Guy, Mountain City, for Dugger.
    Brooks McLemore, Jr., Atty. Gen., Michael J. Passino, Asst. Atty. Gen., Nashville, David E. Crockett, Asst. Dist. Atty. Gen., Elizabethton, William R. Mooney, Asst. Dist. Atty. Gen., Johnson City, for appellee.
   OPINION

WALKER, Judge.

The appellants, Frankie Seelbach and Richard Dugger, were jointly tried and convicted in two cases of rape and one case of first degree burglary and were sentenced to consecutive sentences of 18 years, 12 years and five to six years, respectively. A third man, Steve Dugger, was also indicted in the three cases but was not available for trial.

On this appeal we are first confronted with a bill of exceptions filed 139 days after the motion for a new trial was overruled on July 5, 1977. The trial judge allowed 90 days for its filing and on July 18 granted the court reporter an additional 60 days. The bill of exceptions was filed on November 21, 49 days later than the maximum period allowed by law. T.C.A. 27-111. Although this bill of exceptions consists of more than 1000 pages, the trial judge was without authority to grant the 60-day extension. On our own motion, however, we may consider it as a late bill of exceptions and we do so. Dailey v. State, 225 Tenn. 472, 470 S.W.2d 608 (1971); State v. Wilson, 530 S.W.2d 766 (Tenn.1975).

We find that the minutes show that the verdict in each case was returned by 13 jurors, an error found reversible in Grooms v. State, 221 Tenn. 243, 426 S.W.2d 176 (1968). An examination of the bill of exceptions, however, shows that the trial judge dismissed the alternate juror. In this conflict the bill of exceptions controls. Church v. State, 206 Tenn. 336, 333 S.W.2d 799 (1960). We call attention to the importance of having minute entries accurately reflect the proceedings of the court.

After carefully examining all of the assignments of error by each appellant, we find no reversible error.

These convictions stem from the appellants’ intrusion, along with Steve Dugger, into the home of Helen Stout. Mrs. Stout’s daughters (Crystal, age 11, and Sue, age 19) and Sue’s two-year-old son, Shad, were at home with Mrs. Stout, age 46, at about 11:00 p. m., September 27, 1976, when a man stopped and asked directions to a neighbor’s house. The man, later identified as Seelbach, returned in a short time and knocked again. With a pistol, Mrs. Stout approached the door to tell Seelbach to leave. When she slightly opened the door, he flung it open, struck her in the face with his fist and rushed in, followed by two men with T shirts over their faces to conceal their identities. Sue recognized Steve Dug-ger’s voice and later recognized Richard Dugger when his face was uncovered. Seelbach was not masked.

The three men repeatedly had unlawful sexual intercourse with Helen and Sue, forcibly and against their wills. They also forced the women to perform fellatio and to submit to anal sex. Crystal hid behind a door and the television set, but she witnessed much of the perpetration of the crimes. The men looked for the “eleven year old cherry” but did not find her. They threatened to take the two-year-old child with them. Armed with a knife and Mrs. Stout’s pistol, they demanded money. She gave them her pocketbook and the money she had. Dugger’s fingerprints were found on a wine bottle taken from the refrigerator. After the men had been there forty-five minutes to an hour, Peggy Tester, a friend of Sue, drove up and the men fled through a back window. Sue promptly reported these events to an officer, and she and her mother were taken to a hospital. Helen had three broken ribs and severe bruises. Sue was not seriously injured.

Dugger did not testify. Seelbach testified that he had car trouble and that he, Richard Dugger and Steve Dugger entered the house at the invitation of the Stouts, that Richard went out to the car to get some beer and drove off. When Mrs. Stout told Seelbach that he and Steve must go, Seelbach became angry and struck her. He then picked her up and apologized. About this time a car drove up and the women showed them the way out a back window. After crawling through the window, Seel-bach said that he went into the mountains. He saw no pistol or knife. No threats were made, according to him, and no larceny or rape took place. By his testimony, he committed an assault and battery on Helen Stout, but that was the only offense of which either appellant was guilty.

The jury resolved the conflicts in the evidence and accepted the theory of the state. Although the medical proof did not establish ejaculation, it did not preclude the fact of intercourse. The jury’s verdict approved by the trial judge accredits the testimony of the state’s witnesses and resolves all conflicts in favor of the state’s theory. Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799 (1967); State v. Grace, 493 S.W.2d 474 (Tenn.1973).

The appellants urge that the trial court erred by failing to grant their motion for a change of venue because of newspaper and radio publicity. The motion was overruled March 3, 1977, and the trial began March 23, almost six months after the pretrial publicity complained of. The proof does not show extensive publicity or any undue excitement or hostility against the appellants. The prospective jurors were thoroughly examined and the appellants accepted the jury without exercising all of their peremptory challenges. The examination of the jurors does not support a claim of extensive juror hostility. The court did not abuse its discretion in denying a change of venue. Broz v. State, 4 Tenn.Cr.App. 457, 472 S.W.2d 907 (1971).

Dugger’s pretrial motion for a severance was also denied, although no order to that effect was entered. He cites no authority. His codefendant exonerated him by his testimony, and this record shows no abuse of discretion by the trial' judge in refusing the severance. See Davis v. State, 1 Tenn.Cr.App. 479, 445 S.W.2d 933 (1969).

Dugger also insists that the court should have granted his motion for a psychiatric examination of Sue Stout. He cites purported inconsistencies between her testimony and that of her mother and other witnesses, which he claims show her mental instability. He insists that her promiscuous pattern of conduct further evidences this instability. He relies on Forbes v. State, 559 S.W.2d 318 (Tenn.1977), decided about eight months after this case was heard. That ease holds that the trial court has power to compel a psychiatric or psychological examination of the victim, but that this power should be invoked only for the most compelling reasons, all of which must be documented in the record, and that this discretion should be exercised sparingly. This record reveals no compelling reasons for ordering one of the victims to submit to a psychological examination. The ruling of the court was correct.

The appellants contend that the court’s failure to conduct a direct examination of its own witness was reversible error, relying on Montesi v. State, 220 Tenn. 354, 417 S.W.2d 554 (1967).

When it appeared that neither side intended to call Dr. John Whitlock, the physician who had examined the two women, the trial judge called him as the court’s witness. He did not conduct a direct examination but immediately turned the witness over to both sides for cross-examination. Dr. Whit-lock testified as to the injuries of the women when they were brought to the hospital. He found no sperm on them although a proper test was not run on the slides because a technician had disposed of the slides before the tests were completed. His testimony was either inconclusive or favorable to the appellants on that question.

In Montesi v. State, supra (reversing on other grounds), the court held that although the trial court has the discretion to call witnesses, this discretion should be carefully exercised. On the retrial the Supreme Court held that if the trial judge called the witness as a court’s witness, he should himself conduct a direct examination or see that she was given the opportunity for a full direct examination before turning her over for cross-examination.

While the court did not comply with the directives of Montesi, the testimony of Dr. Whitlock was fully developed and there was no prejudice to the appellants by the failure to accord him a direct examination. The error is harmless.

The appellants argue that the court erred by holding a Friday night session until 9:13 p. m. The trial began on Wednesday, and all parties understood that the case should be completed that week, if possible, because the judge had court elsewhere the following week.

At 6:25 p. m. on Friday the court indicated his intention to continue until the defendants rested or until a reasonable hour, whichever came first. The court adjourned promptly on Dugger’s counsel pointing to the lateness of the hour. This night session was reasonable under the circumstances and does not violate the principles laid down in Hembree v. State, 546 S.W.2d 235 (Tenn.Cr.App.1976), upon which the appellants rely.

Related to this contention is Dug-ger’s assignment that the court pressured defense counsel to have the defendants testify Friday night or not at all.

At 4:30 p. m. on Friday the court began to inquire about how many additional witnesses would be called and whether or not the defendants would take the stand. During this colloquy, there is no indication that the court coerced counsel to make any decision concerning whether his client would testify, nor is there any indication that counsel objected. Although counsel indicated that Dugger would not testify, the court allowed him to wait until Saturday morning to rest his case. Dugger’s reliance on Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), is misplaced. The court here did not attempt to interfere with the order of the appellants’ proof, with their right to remain silent or with their strategic decisions, made with the “guiding hand of counsel.” This assignment lacks merit.

Also without merit is the contention that the appellants were prejudiced because, they contend, the prospective jurors saw them in handcuffs. Following a lunch recess during the selection of the jury, Seel-bach’s counsel said that after adjournment for lunch the officers had handcuffed both appellants while prospective jurors were in the courtroom. The prosecutor replied that the state was not aware of that action until defense counsel complained, but that he had instructed the officers not to handcuff the appellants in the presence of the jury or in the courtroom. The trial judge also ordered the officers not to handcuff any prisoner while the jury was present and the record shows no further incident of this nature. It is not clear that any prospective jurors saw the handcuffs and, in any event, it was not repeated. The appellants were not prejudiced.

There has been no showing that the trial judge “pampered” the prosecuting witnesses and permitted them privileges in the courtroom and in the facilities of the courthouse, contrary to the appellants’ contentions. The record shows that he presided fairly and impartially in a hotly contested trial. Further, there is no showing at all that he was physically unable to conduct the trial.

Seelbach contends that the court improperly restricted his counsel and counsel for Dugger in their efforts to impeach state’s witnesses. He says it was error to refuse to let Dugger’s counsel read an FBI report to impeach Sue Stout. Counsel laid no proper foundation, and no prior inconsistencies appear. There was likewise no error in the court’s refusal to allow counsel to probe into Sue Stout’s relationship with the Department of Human Services. The trial judge did not abuse his discretion in limiting cross-examination on this question. Although there was no issue of consent in these cases, the trial judge permitted the appellants to explore thoroughly the sexual activity of the victims. Sue testified that she had had numerous sexual relationships with men and that her child was born out of wedlock. Helen was divorced and her association with a married man was scrutinized. The trial judge was liberal in allowing inquiry into these women’s backgrounds as that information related to their credibility. The jury had all of this for its consideration.

Both appellants say the court erred in denying Seelbach, as an indigent, a copy of the trial transcript at state expense for use in preparing his motion for a new trial. Dugger was not an indigent, although he says he was unable to purchase the record and would have used the record if it had been furnished to Seelbach. He cites no authority on his position.

This court has found no Tennessee authority giving sanction to such requests. We approved a denial in Banks v. State, 556 S.W.2d 88 (Tenn.Cr.App.1977), absent a showing of prejudice or citation of authority. From a thorough reading of the entire record in this cause, it is obvious that the appellants’ counsel raised every possible error of which they could legitimately complain. The trial judge was correct in denying this motion.

Dugger urges that the court erred by fixing consecutive sentences. He insists that because no witness testified that he struck, or was seen striking, either of the victims, and because Seelbach testified that Dugger had left the premises before Seel-bach admits having hit Helen Stout, no aggravation of circumstances has been demonstrated which would warrant the imposition of consecutive sentences. However, by returning guilty verdicts as to both rape charges and the burglary charge, the jury rejected the defense claims that Dug-ger had left the scene and has accredited the state’s theory, which included testimony that the appellants threatened to kill the Stouts if the women did not give them money, that they cut a drapery cord and tied Sue Stout’s hands and that they struck and abused both women in a violent manner, requiring a week’s hospitalization for Helen Stout. Moreover, the evidence showed that at least one of the appellants was armed with a knife, that they seized a pistol which they used to rob and rape and terrorize the victims over a period of about an hour, and that they threatened to injure the two children. The violence and threats which accompanied this entire episode in which the jury found Dugger a full participant are sufficient to constitute aggravating circumstances which justify Dugger’s consecutive sentences. The trial court found both appellants dangerous offenders, and he pointed out that one of the victims was bruised and battered. He considered the guidelines of Gray v. State, 538 S.W.2d 391 (Tenn.1976). In fixing consecutive sentences he did not abuse his discretion.

All assignments of error are overruled and the judgments are affirmed.

BYERS, J., and W. WAYNE OLIVER, Special Judge, concur.