text:
    Deborah BURCH et al., Respondents, v. Howard Odis KING, Appellant.
    No. 36934.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 12, 1977.

      Roberts & Roberts, Geoffrey L. Pratte, Farmington, for appellant.
    No appearance for respondents.
   ALDEN A. STOCKARD, Special Judge.

The four minor children of William Joseph Burch, deceased, brought this action for the alleged wrongful death of their father which resulted from a three-vehicle collision. The defendants were Jesse Floyd Reed, the operator of one of the vehicles, and Sherry Dell Reed, his wife, who was a passenger; Howard Odis King, the operator of one of the other vehicles, a pick-up truck; and Lawton Roberts, the owner of a horse that was killed, apparently by deceased’s vehicle. King filed a cross-claim against Roberts and the two Reeds for personal injuries and property damage, and the two Reeds filed a cross-claim against King for personal injuries. At the close of their evidence, plaintiffs dismissed their petition as to Roberts. We find no dismissal of King’s cross-claim as to Roberts, but there was no submission to the jury of any claim as to him, and we consider that part of the cross-claim to have been abandoned.

The jury found against all cross-claimants on their individual claims, and awarded damages in favor of plaintiffs and against Jesse Floyd Reed and Howard Odis King in the amount of $30,000.00. Only King has appealed, and the term appellant shall refer only to him.

Plaintiffs-respondents have not filed a brief. We recognize that under the present Supreme Court Rules there is no penalty for such failure, but the practice is not to be favored. A brief by respondent should be helpful to an appellate court and is a “part of the proper and orderly appellate process.” Shephard v. Hunter, 508 S.W.2d 234, 237 (Mo.App.1974).

We note here that a substantial portion of the testimony was given with reference to a prepared diagram of the accident area and to photographs, none of which have been filed with this court; a most undesirable procedure when, as in this case, some of the issues for appellate review require reference to that testimony of witnesses in which reference was made to the diagram and photographs.

Shortly after 1:00 o’clock in the morning of March 25, 1973, Jesse Reed was operating his Ford automobile with his wife as a passenger west bound on Highway W. between Farmington and Doe Run in St. Francois County. The highway was twenty-two feet in width and had a black asphalt surface. At the time it was misting rain and the road surface was wet. William Joseph Burch, the deceased, was following the Reed automobile. Jesse saw a horse on the shoulder of the highway, and according to his testimony, he stopped his automobile in the westbound traffic lane and got out of his automobile to attempt to catch the horse. Mr. Burch stopped his automobile approximately sixty feet from the Reed automobile. Jesse testified that after he stopped he looked back in his rear view mirror and saw Mr. Burch get out of his automobile. Apparently it was the Burch automobile that struck and killed the horse, but this is not clear from the evidence. There was some damage to the right front portion of the Burch automobile, but the body of the dead horse was lying off the highway forty-two feet westward, or ahead, of the Burch automobile.

King was operating his 1973 Chevrolet pick-up truck eastward on Highway W about 50 miles an hour. He rounded a curve and saw automobile headlights, as he said, “on my side of the road.” He applied his brakes and “locked it up” and his truck began to slide. He stayed on his side of the highway until his truck collided with the Reed automobile “head on.” His truck then went into a spinning action. The left front portion struck the left front side of the Burch automobile, and the truck spun around out of control and the back part then hit the left rear part of the Burch automobile. The truck ended up in the ditch on the south side of the highway headed westward.

Mr. Burch’s body was found in the highway seventy feet from the centerpost of his automobile and to the rear, or eastward, of it. Exactly what caused the death of Mr. Burch is not disclosed by the evidence, but King stipulated that the death of Mr. Burch resulted from the “collision occurrences.”

Appellant’s first point is that the trial court erred in overruling his motion for a directed verdict because Burch was contrib-utorily negligent as a matter of law in parking his automobile at night on the traveled portion of the highway without lights. Appellate cites Wilber v. Mana, 356 S.W.2d 88 (Mo.1962), and Glenn v. Offutt, 309 S.W.2d 366 (Mo.App.1958), but could have cited many additional cases, to the effect that it is negligence per se for one having custody of a motor vehicle to allow it to remain at rest on a highway without lights during the period when lights are required.

Appellant argues that there was “no evidence indicating that the lights on the parked vehicle of plaintiffs’ decedent were turned on at the time of the accident.” We do not agree. Jesse Reed, called as an adverse witness by plaintiffs, testified that as he sat on the highway after he had stopped he saw the lights of an automobile approaching from the rear. This had to be the Burch automobile. The following then occurred:

Q. At any time did you see those lights go out?
A. No. sir.
Q. Were those lights on at the time your car was struck?
A. I'd, I’d have to say — All I could say is I believe they were, I’m not sure.
Q. You did not consciously—
THE COURT: I missed that. They were on or off?
A. I’m not sure.
THE COURT: I know. But you best opinion is which?
A. Well, my best opinion would be that they were on.

It is true that on cross-examination, Jesse testified that he did not pay “close attention” as to whether the headlights on the Burch automobile were on when he saw the decedent get out of the automobile, and that he could not “swear to it under oath" that the headlights were on or off. Sherry Reed testified that she saw the Burch automobile come to a stop behind the Reed automobile, but that she did not see Mr. Burch get out of his automobile. When asked whether the Burch automobile had its headlights turned on, she replied, “I can’t remember.” Also, King testified that as he “popped around the curve all I seen was the car on my side of the road.” He further testified that he recalled seeing only the headlights “coming facing me” and that he saw two headlights “on my side of the road.”

The burden of establishing contributory negligence on the part of plaintiffs’ decedent was on appellant unless it was established as a matter of law by plaintiffs’ evidence. With the burden on the defendant, the issue of contributory negligence is usually for the jury, especially where there is a conflict in the testimony, or the testimony is not definite. Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498 (1951). Contributory negligence as a matter of law may be found only when reasonable minds can draw only the one conclusion of negligence. Whether Burch was contributorily negligent as a matter of law in this case turns on an issue of fact: did he stop his automobile on the highway without lights? There is evidence consisting of the testimony of Jesse that the lights were on and he did not see those lights go out even though he saw Mr. Burch leave the automobile. Admittedly, there was evidence which implied, or at least permitted an inference, that the. lights were not turned on, but this results only in the issue being one for the jury.

We mention one thing further. The Burch automobile was in the westbound lane. There is no question about that. The King truck struck the Reed automobile, and according to King that collision occurred in the eastbound lane. It was only after this and after the King truck went into a “spinning” motion out of control that it entered the westbound lane and struck the Burch automobile or Mr. Burch. Therefore, assuming the headlights on the Burch automobile were not on, we fail to see how that negligence could have been the proximate cause of any collision which resulted in the death of Mr. Burch.

The trial court properly submitted the issue of contributory negligence on the part of Mr. Burch to the jury.

Appellant next challenges Instruction No. 6, the verdict-directing instruction which submitted as negligence on the part of King that he “drove at a speed which made it impossible for him to stop within the range of his visibility.” Appellant asserts that there was no evidence to show how this contributed to the death of Mr. Burch. He argues that there was substantial evidence that Reed was approaching King in King’s lane, and plaintiffs presented no evidence that had King been able to stop within his range of visibility, the Reed-King collision would have been avoided. But we note, the important issue is not whether the Reed-King collision would have been avoided, but whether injury to Mr. Burch would have been avoided.

The actual stopping distance for King’s truck at the speed it was traveling was a greater distance than that from the point where the Reed automobile first became visible to King to the point of impact. Appellant’s argument that his speed, even if excessive under the circumstances, could not have been the proximate cause of the death of Mr. Burch is somewhat tenuous, and is as follows: (a) The Reed automobile was moving westward in the eastbound lane when King rounded the curve, (b) At most, 100 to 125 feet separated the King and Reed vehicles when King first saw the Reed vehicle, (c) If King “could have stopped in that distance, which was his range of vision, the accident would still have occurred because Reed was moving toward him, shortening the distance to less than his range of visibility in which to stop and avoid the accident.” (d) Therefore, King’s speed could not have been the proximate cause of the accident, apparently referring to the King-Reed collision.

Appellant cites four eases from other jurisdictions, Coon v. Rieke, 232 Iowa 859, 6 N.W.2d 309 (1942); Snook v. Long, 241 Iowa 665, 42 N.W.2d 76 (1950); O’Malley v. Eagan, 43 Wyo. 233, 2 P.2d 1063 (1931); Thomas v. Schirber, 164 Wash. 177, 2 P.2d 664 (1931), in which he asserts that it was held that “a driver who collided with a vehicle approaching him in the wrong lane was not guilty [of negligence] despite his speed, because his speed could not be considered the proximate cause of the accident.” We do not agree with this broad assertion concerning the holdings in these cases. Each has a factual situation which makes the case inappropriate to the case before us. There is no evidence of the speed of the Reed automobile, if it was in fact moving. But if the Reed automobile was standing still or moving westward, the King-Reed collision would have occurred because in either event at appellant’s speed his stopping distance extended eastward of where the King-Reed collision occurred or would have occurred if the Reed automobile was not moving. Appellant argues that since the Reed automobile was moving toward him, the point of collision was westward of the point of visibility, and therefore, even if he could have stopped within the limit of visibility the collision between his truck and the Reed automobile would have occurred. However, the place of the collision would be based on pure speculation and conjecture because there is no evidence of the speed of the Reed automobile; not even an estimate. If the evidence was that appellant could have stopped within the limit of his visibility, the contention could be considered meritorious, but since appellant could not have stopped before colliding with the Reed automobile if it was standing still, it is immaterial that the collision occurred a few feet earlier because it was moving. There is no evidence from which it could be found that if the Reed automobile had not been moving, the King truck would not have spun out of control and into contact with the Burch automobile or with Mr. Burch. We find no error in the submission of Instruction No. 6.

Appellant’s final point is that the court erred in giving instruction No. 25, because it “deviated from MAI and in doing so commented on the evidence and excluded from the jury’s consideration negligence submitted against one defendant, even though plaintiff[s] kept three defendants in the case and submitted acts of negligence against all three.” Appellant asserts this confused the jury as evidenced by its failure to name Sherry Reed in the verdict, and that “the trial [court erred] in amending the verdict while the jury was still present and not yet discharged.”

Certain background information is necessary. Immediately following the accident, Jesse Reed and his wife Sherry both told the investigating Highway Patrolman that Sherry was operating the Reed automobile at the time of the accident. At trial both admitted they had lied to the patrolman, and that Jesse was the operator. They explained that they had lied because Jesse already had points against his driving record.

Plaintiffs submitted negligence against King in that he drove at a speed which made it impossible to stop within the range of his visibility, or drove on the wrong side of the road. They also submitted in two separate instructions negligence on the part of Jesse Reed and Sherry Reed in that each “drove on the wrong side of the road, or failed to keep a careful lookout.” Jesse and Sherry could not both have been driving the Reed automobile. While the two instructions aré not labeled as being in the alternative, they necessarily had to be.

In the Forms of Verdict submitted to the jury we find the following: “If you find the issues in favor of the plaintiffs and against one or two defendants only, you should name the defendant or defendants against whom you find and also the defendant or defendants in whose favor you find. In such case your verdict may be in the following form:" (Emphasis added.)

Appellant admits that he recognizes the need to modify the instruction “to provide for three rather than two defendants,” but the modification made by plaintiffs, he says, “eliminate[d] completely” the first part of the Verdict Form which reads as follows:

“If you find the issues in favor of the plaintiff and against both defendants, your verdict may be in the following form: ‘We, the jury, find the issues in favor of the plaintiff, and against both defendants, and assess plaintiff’s damage at $_(stating the amount).’ ”

Appellant asserts that the word “both” should have been deleted and the word “all” substituted to make allowance for the facts of this case. We cannot agree with this contention. To substitute the word “all” for the word “both” would have made the instruction incorrect because the jury could not properly have found against “all” defendants on plaintiffs’ claim, but at most only against King and one of the Reeds. We find no merit to this contention of appellant.

In appellant’s last point he also makes, rather inadequately and somewhat obliquely, a reference to the “trial court’s error in amending the verdict.”

The court read the verdict that was handed to him by the foreman of the jury which was as follows: “We, the jury, find the issues in favor of the plaintiffs and against the defendant or defendants Howard Odis King and Jesse Floyd Reed and we assess plaintiffs’ damages at $30,000.00.” The form furnished the jury contained an additional sentence reading, “and we further find the issues in favor of the defendant or defendants _ (here insert the name of the defendant or defendants in whose favor you find).” The jury had hot written in the name of Sherry Dell Reed in the latter part of the form, and since she was not included in the first portion, there was no disposition of plaintiffs’ alternative submission against her, except as would be necessarily inferred from the fact that the jury could not properly find against both her and her husband.

The trial judge then stated that “with your permission” he would add the name of Mrs. Reed so that the instruction would read that “you find in favor of the defendant Mrs. Reed.” The foreman stated “That’s the way we meant it, yes.” The court then addressed the jury: “Is that the verdict of all of you then? That verdict, ladies and gentlemen, is that the verdict of each of you twelve?” The foreman replied, “It is.” No objection was made by any party to the placing of Mrs. Reed’s name on the verdict form to show that the verdict on plaintiffs’ claim was in her favor.

It then developed that the verdicts on three cross-claims had not been entered at the proper places, and after some discussion the court directed that the jury be returned to reconsider the verdicts on the cross-claims, but when it did so the court stated, referring to the verdict on plaintiffs’ claim, “We will keep this, this verdict in which you said it is the verdict of each of you twelve.” No request was made that the jury be required to reconsider the verdict on plaintiffs’ claim, and no objection was made to it not being returned with the others for correction by the jury.

Appellant does not contend that the addition made by the court did not correctly set forth the intention of the jury. The better practice would have been for the court to require the jury to retire to reconsider its verdict after the infirmity had been called to its attention. Cable v. Metropolitan Life Ins. Co., 233 Mo.App. 1093, 128 S.W.2d 1123 (1939). But it is the duty of the court to look after the form and substance of a verdict so as to prevent a doubtful or insufficient finding. 76 Am. Jur.2d Trial § 1208. Here, the verdict was insufficient in that it did not dispose of all issues. But, “the court has the power to put a manifestly irregular or defective verdict in such form as to make it conform to the intention of the jury, and carry their findings into effect, where the intention can be ascertained with certainty, from statements of the jurors themselves, * * or any other clear and satisfactory evidence appearing in the record or the minutes of the trial; * * * 89 C.J.S. Trial § 515. The mechanical act of the court in correcting the form of the verdict to correctly set forth the finding of the jury that plaintiffs were not to recover against Sherry Dell Reed was not prejudicial to appellant.

The judgment is affirmed.

SMITH, P. J., and NORWIN D. HOUSER, Special Judge, concur.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Gerald JONES, Appellant.
    No. 37322.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 12, 1977.

      James C. Jones and James B. Ashwell, Asst. Public Defenders, St. Louis, for appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

In 1975 defendant Gerald Jones was convicted of first degree robbery as an habitual criminal and sentenced to five years’ imprisonment. We reversed on appeal, holding the trial court had erred in permitting the state to introduce defendant’s incriminating statement contrary to a pretrial stipulation (State v. Jones, 539 S.W.2d 317 (Mo.App.1975)).

On retrial defendant was again found guilty and the jury set punishment at five years’ imprisonment. Judgment followed and defendant has appealed. The critical issue is whether that first-trial stipulation was binding on the state at the second trial.

Defendant does not challenge the sufficiency of the evidence. Briefly, it showed he and several young men entered a restaurant in St. Louis, raised their voices and were “milling around,” approached the cash register and began to push the buttons to open it. Defendant brandished a pocket knife when the restaurant manager tried to close the register. The men took $80 from the register and fled. Police soon arrested defendant and two others and returned them to the restaurant where the manager identified them.

On this second appeal defendant raises three points: (1) because of the stipulation made at the first trial, the court erred at the second trial by admitting into evidence defendant’s incriminating statement that he had been in the restaurant during the robbery; (2) the trial court erred in denying defendant’s motion to suppress statements because of the state’s failure to comply with the discovery rules; (3) the trial court erred in permitting the state to amend by deleting reference to the Second Offender Act.

At the start of the first trial the parties stipulated: “The defendant made a self serving statement that the state doesn’t intend to bring into evidence, or ask any of the witnesses concerning this statement; but reserves the right in the event that the defendant takes the stand and testifies differently than the statement to use it.” Later in the first trial, the state renounced its stipulation and introduced defendant’s incriminating statement. Defendant abided by the pretrial stipulation and did not testify. On appeal we reversed, ruling that the stipulation was binding on the parties and therefore the trial court erred by admitting defendant’s incriminating statement into evidence.

On retrial, defendant attempted to maintain the first trial stipulation but the trial court ruled the stipulation was not binding in the new trial and the incriminatory statement was admitted into evidence. Again, defendant did not testify. The question now before us is whether the first trial stipulation was binding on the state on retrial. We say no. We perceive a material difference between two types of trial stipulations and the continuing force of each.

By one type of stipulation the parties agree to the existence or non-existence of material facts involved in their lawsuit, and they thereby alter the justiciable issues. Once this is done the stipulated agreement generally remains in effect at retrial. As held in Edwards v. Hrebec, 414 S.W.2d 361[6] (Mo.App.1967), “A stipulation fairly entered into as to some fact in issue at a trial becomes a part of the record and is binding upon the parties and the court upon a subsequent trial of the same action, provided its terms do not limit it to a particular occasion, object or proceeding.” (Our emphasis). To the same effect see Hammontree v. Huber, 39 Mo.App. 326, l. c. 329 (Mo.App.1890), and York v. City of Everton, 135 Mo.App. 607, 116 S.W. 490, l. c. 491 (1909), and Hanchett Bond Co. v. Glore, 208 Mo.App. 169, 232 S.W. 159[6] (1921). Each of these cases upheld the continuing force of a stipulation of fact which had limited and fixed the justiciable issues of the lawsuit.

As said, there is a material difference between the continuing force of parties’ stipulation as to the facts which change the very nature of the issues to be tried, and on the other hand the parties’ stipulation as to some procedural matter.

In effect, the stipulation here was: “If A does not testify, B will not testify.” That did not change the issues of the case but merely restricted the manner of proving an issue. None of the previously cited cases on the continuing force of stipulations of material facts is relevant here where the stipulation concerned only the manner of proof.

In Landers v. Smith, 379 S.W.2d 884[7-9] (Mo.App.1964), and State v. Harrison, 539 S.W.2d 119[2, 3] (Mo.App.1976), it was held “a stipulation should be interpreted in view of the result which the parties were attempting to accomplish.” Here that result was not to change the issues of the state’s case against defendant but only to change the manner of proof, in effect, “If A does not testify, B will not testify.” Since the issues at stake remained constant and nothing in the parties’ stipulation indicated an intent it was to apply beyond the case then on trial, we hold the stipulation’s force did not continue beyond that trial. It follows that the trial court did not err in admitting defendant’s incriminating statement.

Defendant’s second point concerning suppression of evidence was neither raised at trial nor in his motion for new trial and therefore is not preserved for review.

Defendant’s third point concerning deletion of allegation of the Second Offender Act is patently harmless and non-prejudicial.

Judgment affirmed.

DOWD and WEIER, JJ., concur.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald David ATKINS, Defendant-Appellant.
    No. 38036.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 12, 1977.

      Baron & Liberman, Norman W. Pressman, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Preston Dean, David L. Baylard, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Julian D. Cosentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

This is an appeal from an order of the Circuit Court of the City of St. Louis, overruling movant-appellant’s Rule 27.26 motion to vacate judgment and sentence, imposed upon a plea of guilty, to two counts of first degree robbery. The Circuit Court denied the motion without holding an evidentiary hearing.

Appellant was charged with and pleaded guilty to two counts of first degree robbery. In Cause No. 75-247-B, appellant Atkins and a friend entered the house of George Crider. Crider, a quadriplegic, had in his possession a sum of money kept in his home by his sister, Opel Henderson. Upon entering the house, one man held Crider’s head down while the other proceeded directly to the closet where the money was kept. In Cause 75 — 1763, two men left a tavern early in the morning and were robbed of $90 by Atkins and another man. Several witnesses recognized Atkins and informed the police. Subsequently Atkins was arrested and identified by the informants.

Appellant’s 27.26 motion alleges: 1) The acts committed by the individual who removed the money from George Crider’s house did not constitute first degree robbery as a matter of law; 2) the only evidence against the appellant in 75-1763 was illegally tainted identification evidence; 3) the appellant’s counsel below was incompetent; 4) the trial judge failed to give thorough allocution, and the acts of the assistant circuit attorney in misstating the facts in the case resulted in a grave injustice because the court accepted both pleas of guilty under an incorrect impression of facts.

After examining the transcript of the guilty pleas and the briefs, we conclude that the trial court did not err in overruling the appellant’s motion to vacate the sentence.

Appellant argues that his acts did not constitute robbery as a matter of law. The essence of first degree robbery as defined in § 560.120 RSMo 1969 is the felonious taking of the property of another from his person or in his presence and against his will. It may be committed either by violence or by putting the victim in fear of immediate injury to his person. State v. Churchill, 299 S.W.2d 475, 478[3, 4] (Mo.1957).

Appellant argues that Crider did not have custody of the money as a matter of law. Appellant contends that the money was not taken from the person of Crider, nor in his presence, as the money was in the closet of another room in the house. We disagree. Property need not be taken from the immediate, physical presence of the victim in order to constitute robbery. If property is forcibly taken from a room adjoining the room in which the victim is located, the property is taken in the presence of the victim. State v. Williams, 183 S.W. 308 (Mo.1916). In State v. Williams, supra, robbers shot the victim and then took money from an adjoining room. The court found that the property was taken in the presence of the victim. Property may be taken in the presence of the victim even though the property is taken from outside of the building in which the victim is located. State v. Hayes, 518 S.W.2d 40 (Mo. banc 1975). In State v. Hayes, supra, the robber forced an automobile owner into a jail cell, took the car keys, and took the automobile which was parked outside. The court found that the property had been taken in the presence of the victim. In the present case, Crider was the custodian of his sister’s money. From the facts stated and the cases cited, it is clear that there is sufficient evidence to support the finding that property was taken in his presence.

Appellant also argues that his actions did not constitute robbery as a matter of law because the money was not taken by force or violence from Crider. This argument is without merit. Appellant argues that holding down Crider’s head had no connection with taking the money. Because Crider was a quadriplegic, he was unable to respond to or resist the force. Appellant compares this situation to taking property from intoxicated persons by force. However, the key factor in the intoxication cases is the victim’s unawareness of the robbery. In this case, Crider was not in a state of unawareness. That he was unable to defend himself does not mean that he was not put in fear of some immediate injury to his person.

To constitute robbery, the act of taking property must be committed either by violence or by putting the victim in fear of immediate injury to his person. Such violence or fear must be prior or contemporaneous with the robbery. State v. Wilborn, 525 S.W.2d 87, 90—91[1] (Mo.App.1975). Section 560.120, supra, does not require proof of both “violence to person” and “putting him in fear of some immediate injury.” Nor must the fear of immediate injury be expressly shown. State v. Thompson, 299 S.W.2d 468, 474[14, 15] (Mo.1957). Given Crider’s physical disabilities, it is clear that holding down his head constitutes violence upon his person and also put him in fear of some immediate injury to his person.

Appellant argues that the charge against him should have been larceny. Larceny is defined as taking property without using force or violence or without putting the victim in fear. State v. Cantrell, 290 Mo. 232, 234 S.W. 800, 802[4] (1921). Robbery is distinguished from other offenses in that the property is under the control of the victim so that violence or putting in fear is used as the means of taking the property from the victim’s possession. State v. Hayes, supra, at 45[3]. The evidence is sufficient to support a finding of presence and the use of violence of putting in fear, thus appellant’s allegation is unfounded.

Appellant’s second contention is that the only evidence against him in Cause 75-1763 was illegally tainted identification evidence. This contention is based upon the police report in the appendix of the appellant’s brief. This document is not part of the record on appeal, and the facts asserted in the report may not be reviewed on this appeal. This court may only consider those matters presented on the record made in the lower court. State v. Collett, 526 S.W.2d 920, 929[4] (Mo.App.1975). The appellate court is limited to a consideration of the evidence in the transcript. Kansas City v. Mathis, 409 S.W.2d 280, 288[14] (Mo.App.1966).

Appellant’s third contention, that counsel at trial was incompetent, is also without merit. Appellant argues that counsel allowed appellant to enter a guilty plea to first degree robbery in Cause 75-247-B and counsel failed to advise appellant of the allegedly illegally tainted evidence in Cause 75-1763. However, once a guilty plea is entered, a determination of adequacy of representation by defense counsel is immaterial, except as it bears on the issues of voluntariness and understanding of the plea. Baker v. State, 524 S.W.2d 144, 148[4] (Mo.App.1975). At the guilty plea proceedings, the appellant acknowledged: 1) the prosecutor’s recitation of the acts charged in both cases were “substantially true”; 2) he knew of his right to a trial by jury; 3) he knew he was waiving a jury trial by entering a plea of guilty; 4) he was aware that the range of punishment was from five years to life; 5) he knew the nature of the charge against him; 6) he was pleading guilty because he was, in fact, guilty; 7) his plea was voluntarily made; and, 8) he was satisfied that his attorney had rendered effective assistance in connection with his case. Thus, the transcript of the guilty plea proceeding indicates that the plea was entered by the appellant both voluntarily and with understanding.

The fourth contention is twofold. The first argument is that the trial judge failed to give a thorough allocution. This is without merit because on a plea of guilty, allocution is not required. Goodloe v. State, 486 S.W.2d 430, 432[1] (Mo.1972).

The second argument under this contention is that the “assistant Circuit Attorney misstated the facts in the case which resulted in the court accepting both pleas of guilty under an incorrect impression of facts. This contention is not preserved for appellate review because it is stated for the first time on this appeal. On an appeal from judgment overruling a motion to vacate the sentence, the reviewing court cannot consider grounds for relief not raised in the motion. Griffith v. State, 504 S.W.2d 324, 329[7] (Mo.App.1974); Schleicher v. State, 483 S.W.2d 393, 394[2] (Mo. banc 1972).

The files and records of the case conclusively show that the appellant is not entitled to any relief as alleged in his 27.26 motion. The court did not err in summarily denying the motion. The judgment is affirmed.

CLEMENS, P. J., and WEIER, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas Wesley MADDOX, Defendant-Appellant.
    No. 37581.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 12, 1977.

      Hayes & Heisler, David M. Johnson, Daniel B. Hayes, Clayton, for defendant-appellant.
    John Ashcroft, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys., Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., George F. Meyer, Jr., Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   DOWD, Judge.

Defendant, Thomas Wesley Maddox, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of attempted burglary in the second degree. Defendant argues that the state’s evidence against him was insufficient to sustain a guilty verdict and that certain evidence was improperly admitted.

Rule 27.20(a) requires that a motion for new trial shall be filed before judgment and within 10 days after the return of the verdict absent an application for and the court’s approval of an extension of time. The record does not reflect that defendant requested or was granted an extension of time. Defendant filed his motion for new trial on February 11, 1975, some thirty-four (34) days after the verdict was returned and twenty-four (24) days out-of-time.

The requirements of Rule 27.20(a) relating to the time for filing a motion for new trial are mandatory. A motion for new trial filed beyond the time provided for by this rule is a nullity. State v. Richardson, 519 S.W.2d 15, 16 (Mo.1975); State v. Laden, 536 S.W.2d 880, 881 (Mo.App.1976). If the motion for a new trial does not comply with the requirements of Rule 27.-20(a), the appellate court is precluded from considering any matters required to be preserved in a motion for new trial. State v. Watson, 511 S.W.2d 890, 892 (Mo.App.1974). However, the appellate court will review the transcript for plain error affecting substantial rights resulting in manifest injustice or miscarriage of justice. State v. Watson, supra, 892; Rule 27.20(c).

Although not preserved in a motion for new trial, a contention that the evidence is not sufficient to sustain a conviction will be reviewed under the plain error doctrine. State v. White, 439 S.W.2d 752, 753[2] (Mo.1969). We therefore summarize the evidence against defendant. The police went to the Creve Coeur Pharmacy after the alarm had sounded. They discovered that the glass in the front door was cracked and that the door frame had a mark on it approximately 1 inch long, 2 inches below the lock. A red substance was found adhering to this mark. The door lock was broken. No one was inside the pharmacy, and nothing inside appeared disturbed. The electrical boxes at the rear of the building had been torn down.

Approximately 13 minutes after the original call, the police stopped an automobile in the vicinity of the pharmacy. When the police opened the door of the automobile and the light inside the car turned on, the police saw two men, one of whom was defendant, lying on the rear floor. The weather was rainy, and all three men in the automobile had wet hair and clothing. Grass was clinging to their shoes and lower clothing. The car contained three sets of wet clothing, some tools, and two walkie-talkies. One of the tools found in the trunk was a screwdriver with a red substance on the tip. The police took scrapings of this substance and the red substance on the pharmacy’s door.

■ The following day, the police found additional tools, including a red crowbar, in a trailer in the yard next to the pharmacy. Footprints in the soil led back and forth between the trailer and the pharmacy, but the police were unable to make casts of the footprints. The owner of the neighboring property testified that the trailer belonged to her son’s club and that she was not aware that her son's club kept tools in the trailer.

The state’s expert witness testified that the red substance found on the door of the pharmacy was paint similar to that on the screwdriver and crowbar in the thickness, color, and texture. He could not say the substances were identical. A police officer identified defendant as one of two men who purchased a red Sears crowbar and two screwdrivers such as those in evidence a few days prior to the attempted burglary. The manager of a Sears store identified the red crowbar and one screwdriver as Sears merchandise. He also testified that the ¡.screwdriver's tip was bent and chipped. He testified that such wear was not from normal usage, that the steel was of a high grade and breaks off only if the screwdriver is ground and bent.

Our examination of the record does not reveal any necessity for invocation of the plain error rule. Rule 27.20(c); State v. Stevens, 529 S.W.2d 670, 671 (Mo.App.1975). The facts, circumstances, and reasonable inferences therefrom are sufficient to sustain the guilty verdict. The circumstances are all consistent with the hypothesis of defendant’s guilt of the offense of attempted burglary in the second degree. The circumstances are inconsistent with every reasonable hypothesis of defendant’s innocence; and while not conclusive, the circumstances need not demonstrate an absolute impossibility of innocence. State v. White, supra at 755[5]; State v. Maxie, 513 S.W.2d 338, 343[5] (Mo.1974). We conclude that the facts and circumstances shown by the evidence are sufficient, as a matter of law, if believed by the jury, to induce a belief of defendant’s guilt beyond a reasonable doubt. State v. White, supra at 755[6].

We have reviewed, pursuant to Rule 28.-02, the sufficiency of the information, verdict, judgment and sentence — matters of record which require no assignment of error. The information is sufficient and the verdict is responsive to the offense charged. The sentence was within the statutory limits, allocution was granted, and the judgment is in the proper form. State v. Nelson, 526 S.W.2d 56, 57 (Mo.App.1975).

The judgment is affirmed.

CLEMENS, P. J., and WEIER, J., concur.

      . In considering the contention that the evidence is insufficient to sustain the conviction, the court views the evidence and inferences to be drawn therefrom in the light most favorable to the state. State v. Williams, 521 S.W.2d 29[1] (Mo.App.1975).


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donnell LEE, Defendant-Appellant.
    No. 38103.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 12, 1977.

      Robert C. Babione, Public Defender, Joseph Webb, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, J. Michael Davis, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James P. Booth, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   PER CURIAM.

This is an appeal by defendant-appellant, Donnell Lee , from a judgment of conviction entered by the circuit court of the City of St. Louis on May 3, 1976, whereby appellant was sentenced to thirty years in the Department of Corrections for the offense of assault with intent to maim with malice. § 559.180, RSMo. Appellant having been found guilty by a jury and the court having found that appellant came within the provisions of the Second Offender Act, § 556.280, the court imposed sentence. Defendant-appellant appeals. We affirm.

Since the appellant does not, on this appeal, question the sufficiency of the evidence, only those facts necessary for a disposition of the points raised will be stated. For reversal and remand appellant urges that the trial court erred (1) in admitting two photographs of the scene of the offense because they had an inflammatory and prejudicial effect on the jury, (2) in admitting a state exhibit — a hatchet — found at the scene because it had a prejudicial effect on the jury and overrode any relevancy or probative value it may have had, and (3) in refusing to give defendant’s offered instruction of assault with intent to maim without malice aforethought.

We find none of the appellant’s points to be meritorious and hence, for reasons hereinafter stated, affirm the judgment of conviction.

The jury could reasonably find the following facts. Miss Doris Duckett had known the appellant, Donnell Lee, for approximately thirteen years and had two children by him. She and her children lived in the City of St. Louis. On September 2, 1975, she and her daughter were examining two of three checks she had received when defendant came to the house. The evidence implied that when he left or “disappeared” one of the checks in the amount of $172.00 and a “Master Charge Account” were “missing and unaccounted for.” Some two months later — “[i]t was the week of November 1,” 1975 — Miss Duckett heard from Mr. Lee by telephone. “He asked me if he could come and stay at my house a few days.” She permitted him to come and stay. On Tuesday of that week, appellant asked Miss Duckett if she had called the police “on him.” She answered that “. they sent a police officer to my house to identify some friends of his who had cashed my check and was trying to use my Master Charge.” The next day he left the house about 10:00 a. m. and returned about 10:00 p. m. Miss Duckett was under medication to help her sleep and when appellant returned home she was in the kitchen. Appellant came into the kitchen, “. opened my basement door and sat down at the kitchen table.” After a little while, appellant stated that he had come to kill her and “. . . told me to pray.” The medication began to “work on me” and Miss Duckett dozed. After that the appellant “. . . jumped across [the] table and hit me in the chest ... he hit me in the right jaw and knocked me out of the chair.” After he knocked her out of the chair, he hit her on the “left side of the face.” He then started to drag her down the basement steps. “He picked me up off the floor and drug me from the basement.” During that time he picked up the hatchet off the cabinet which [was] directly behind the basement door.” He propped her up against the cabinet in a sitting position and with an ice pick he took out of his pocket “began stabbing me in the chest.”

He stabbed her three times. After that he stood her up and “. . - by that time he had two ice picks, one in each hand and and he just stabbed me in' the side, in between the ribs and on side of the stomach.” She was bleeding from the face and “. . . I started bleeding from the wounds in the chest.” Afterwards Mr. Lee placed the hatchet back up on a wall cabinet; Miss Duckett went into the bathroom and put her bloody robe in the tub and turned the water on. A little later, Miss Duckett’s daughter, Blanche Jones, came home about midnight. When she arrived the appellant told her that “him and mother were fighting,” and, after noticing that her mother “. . . was stabbed in the chest and there was blood running down [her] forehead,” Miss Jones and a neighbor’s brother took her to the hospital. Miss Jones called the police and a neighbor, Rodney Richardson. ■ When Mr. Richardson arrived, Miss Duckett “. . . was laying their [sic] and blood was coming out of her mouth and she was bleeding from her head.” Miss Jones also examined the bathroom and saw her mother’s robe and housecoat and the appellant’s sweatshirt in the tub. That night the appellant left the house and “. . . carried clothes with him in a suitcase.”

In due time, Officers James Burgoon and Laird Kelly arrived at the scene. Officer Burgoon observed several people gathered around an automobile and saw Miss Duck-ett “laying half in and half out of the car.” The people were attempting to put her in the car. They went into the house and observed the kitchen in disarray and the floor full of blood. Officer Kelly saw Miss Duckett bleeding from the head. The people were concerned that she get to a hospital. Officer Kelly entered the house and also found “blood splattered on the floor.” From the kitchen he seized from the top of the cabinet a hatchet with a wooden handle. He also observed “. . . some clothing in the bathtub that had water in it, that was wet and red.” On cross-examination defendant counsel inquired where the officer recovered the hatchet.

The medical records indicated that Miss Duckett suffered “ ‘[m]ultiple stab wounds with ice pick to right chest’ ” and lacerations of the scalp.

According to the record, Miss Duckett did not see appellant again until early in January 1976. He was on her front porch, and when the doorbell rang she “peeped through the draperies.” Miss Jones was at home. Miss Duckett ran upstairs and told her daughter that the appellant was at the door. The daughter called the police and the neighbor, Mr. Rodney Richardson. When Mr. Richardson was called he “got a gun,” loaded it and went up the street. He saw the appellant “kicking on the door.” Richardson told him to put his hands up, but appellant replied with an obscenity. Richardson shot the gun once. After that appellant “put his hands in the air.” When Officer Louis Clayton came to the house in response to the call, he arrested the appellant.

Defendant was charged in an amended information with a prior conviction and with assault with intent to maim with malice aforethought. Trial was held and the above facts were brought out. During the state’s case, certain photographs were introduced as exhibits. Exhibit No. 3 was a picture of the pantry and the basement door where Mr. Lee dragged Miss Duckett. Exhibit No. 5 was a picture of the kitchen showing the cabinet. When Exhibit No. 3 was offered, defense counsel objected “. on the grounds that it [is] inflammatory and would cause a prejudicial effect on the jury. There has been sufficient evidence to show the kitchen layout. I think they are of no probative value at all.” Counsel also contended that the picture showed that there was blood on the floor. The objection was overruled. When Exhibit No. 5 was offered, counsel objected to the admission but gave no specific reasons. This objection too was overruled.

During the direct examination of Officer Kelly, Exhibit No. 8 — the hatchet which he seized — was offered and introduced into evidence over objection on the ground that there was no showing that it was connected in any way with the defendant.

The defendant did not testify but introduced certain preliminary hearing testimony of Miss Duckett through a court reporter.

During the conference on instructions, the appellant offered an instruction on assault with intent to maim without malice, MAI-CR 6.24, but the offer was refused.

The jury was instructed on assault with intent to maim with malice and the jury found appellant guilty of that offense. In due time, after a motion for new trial was filed and overruled and allocution granted, appellant was sentenced.

On this appeal appellant contends that (1) the trial court erred in admitting the photographs — Exhibit Nos. 3 and 5 — for the reason that they had an “inflammatory and prejudicial effect on the jury and offered no probative value;” (2) the trial court erred in admitting the hatchet — Exhibit No. 8 — into evidence because it too had an “inflammatory and prejudicial effect on the jury that overrode any relevancy or probative value the exhibit may have offered;” and (3) the court erred in refusing to give offered Instruction A because there was sufficient evidence before the jury “to provide mitigating and extenuating facts to arguably show a lack of malice.”

Appellant argues that the photographs “displayed a large amount of what was apparently the victim’s blood on the kitchen floor and table” which were offered for the purpose of inflaming the jury and hence unnecessarily prejudiced the defendant while “offering no probative or corroborative value.” He also obliquely contends that, inasmuch as the victim identified him in court and testified as to the nature and extent of her injuries, “the only relevant matter surrounding the photograph[s] was to corroborate the victim’s testimony that the assault took place in the kitchen of her home.” Accordingly, he contends that the only purpose was to inflame the jury and prejudiced him to such an extent that the prejudice clearly overrode any relevancy or probative value of the photographs.

As to his second point he argues that there was no evidence to show that the hatchet was used as a weapon or that Miss Duckett was in any way injured by the hatchet. He argues that the hatchet was “in no way connected with the injuries sustained” by Miss Duckett; hence, the only purpose in admitting the hatchet was to inflame the jury “which created a prejudicial effect [on] the defendant.”

On the third point appellant argues that there were sufficient facts to show a lack of malice so that the instruction as to the lesser offense should have been given and the issue submitted to the jury because malice aforethought is “arguably” absent since there was no evidence “to show his thinking about the assault in advance.” Rather, the proper analysis of the evidence indicates “nothing to show that the defendant’s motive for the visit [in November] was anything other than companionship as indicated by the long and amorous relationship.” Hence the jury should have been instructed on assault without malice so that the jury would have an opportunity to infer a lack of malice from these “mitigating and extenuating circumstances.”

The first and second points raised by the appellant may be treated together since they are legally intertwined and the legal principles applicable thereto are applicable to both.

There are certain time-tested legal principles governing the admission of demonstrative evidence, including photographs. The principles relating to the admissibility of photographs or visual evidence are well settled.

1. Demonstrative evidence is admissible if it tends to connect the accused with the offense, or to prove the identity of the victim, or to show the nature of the wound, or to throw any relevant light upon a material matter in issue. State v. Moore, 303 S.W.2d 60, 65 (Mo. banc 1957). As stated in State v. Martin, 530 S.W.2d 447, 450 (Mo.App.1975), relying on State v. Long, 336 Mo. 630, 80 S.W.2d 154, 160 (1935), “[t]o be admissible, the [demonstrative evidence] need only ‘establish any fact at issue or * * * tend to throw light on the controversy and aid the jury in any way in arriving at a correct verdict * * V ” And it is sufficient if the demonstrative evidence corroborates other testimony in the case.

2. It is not a valid objection that a witness has testified as to matters concerning the demonstrative evidence, especially photographs.

3. The admissibility of such evidence is a matter resting primarily within the wide discretion of the trial court.

4. Demonstrative evidence, especially photographs, is also admissible if it tends to corroborate the testimony of the state’s witnesses because the state, having the burden of proving the defendant’s guilt beyond a reasonable doubt, should not be limited as to the quantum of its proof.

5. Photographs of the scene of an alleged crime are admissible if they depict the conditions and circumstances surrounding the alleged crime and aid the jury in throwing light on a material issue in the case. State v. Rogers, supra, 523 S.W.2d at 347. Photographs, too, are admissible if they tend to connect the accused with the offense, or prove the identity of the victim, or show the nature of the wound, or throw any light upon a material issue, or corroborate the testimony of the witnesses for the state, or refute the defense testimony.

6. A trial court, in the exercise of sound discretion, should deny the admission and exhibition of gruesome photographs to a jury if they do not tend to throw any relevant light upon a material issue, but it is not sufficient cause for their rejection if the sight of the pictures would tend to agitate the feelings of the jurors.

7. Photographs, even though inflammatory, are admissible if they tend to prove any material element of the state’s case and corroborate the oral testimony of the state or refute the defense testimony. The photograph, if relevant, is not to be excluded unless the situation is “so unusual that the extent of prejudice overrides the relevancy and probative value of the photo.” State v. Jackson, supra, 499 S.W.2d at 472.

Tested within all these legal principles, we cannot conclude that the trial court so abused its discretion (1) in admitting the photographs into evidence or (2) in admitting the hatchet into evidence.

We have viewed the photographs attached to the appellant’s brief and do not find them gruesome or inflammatory. They show the scene of the assault and corroborate the oral testimony of Miss Duckett as to the events of that November evening. The “spots” of blood shown on the photographs could not have inflamed the minds of the jury any more than they were otherwise inflamed by the detailed testimony of the assault by Miss Duckett and her physical description by her daughter and Mr. Richardson. State v. Jackson, supra, 499 S.W.2d at 472. The situation was not so unusual that the extent of prejudice overrode the relevancy and probative value of the photographs. The photographs were of aid to the jury in arriving at a correct verdict and were admissible to corroborate the oral testimony presented by the state. The photographs were scenes where the offense occurred; both were described as fair and accurate representations. Under these circumstances there was no prejudicial error in the admission of the photographs.

Neither was there any prejudicial error in the admission of the hatchet. The admission of this evidence rested in the sound discretion of the trial court and we find no abuse. Although there was no direct testimony that Miss Duckett was struck by this object, she testified that while being dragged and before he struck her with the ice picks he picked up the hatchet “off the cabinet” and after the stabbing put it “up on the cabinet” in the kitchen where it was seized by Officer Kelly and identified at trial. The hatchet tended to throw light on the assault, aided the jury in arriving at a verdict and corroborated the oral testimony of Miss Duckett of the events surrounding the assault. The incident involving the hatchet was part of the continuing assault upon the victim. Again the situation was not so unusual, and no undue emphasis was placed on this exhibit, that the extent of prejudice overrode the relevancy and probative value of this exhibit.

Therefore, we find no prejudicial error in the admissions of Exhibit Nos. 3, 5 and 8—the photographs and the hatchet.

Neither do we find that the court erred in refusing to instruct on the lesser included offense—assault with intent to maim without malice.

There are many Missouri statutes proscribing assault under a wide variety of circumstances. The General Assembly has classified the various assaults and has determined that the more serious or aggravated the assault the more severe the punishment. Assault without malice under § 559.-190 may be regarded as assault with intent to kill or do great bodily harm or to commit a felony, while assault with malice aforethought under § 559.180 may be viewed as an assault with intent to kill or maim by shooting, stabbing or by means of a deadly weapon or force likely to produce death or great bodily harm. While many decisions have stated that the essential ingredient of § 559.180 is “malice aforethought,” upon closer examination the true distinction “lies in a general weighing together of all the facts and circumstances including the comparative strength and positions of the parties, the presence or absence of ‘provocation’ or justifying, mitigating, excusing or aggravating circumstances, the weapon or means or force employed, the manner in which the weapon or force was employed, the injury sustained, etc.” Richardson, The Missouri Bar Committee Comments on Missouri Approved Criminal Instructions, Assault, p. 22-23 (1974); State v. Webb, 518 S.W.2d 317, 320-321 (Mo.App.1975); State v. McCoy, 530 S.W.2d 8, 10 (Mo.App.1975).

Whether an instruction on assault without malice is to be given, the controlling factor with respect to the submission of a lesser offense is whether the facts in evidence are sufficient to arguably show a lack of an essential element of the higher degree of the offense. State v. Howell, 524 S.W.2d 11, 21 (Mo. banc 1975). And it is clear that an instruction on the lesser offense — assault without malice — is required only if there is evidence to support such a submission. State v. Webb, supra, 518 S.W.2d at 321; State v. Lane, 537 S.W.2d 569, 570 (Mo.App.1976). Furthermore, the law presumes malice as a concomitant of an assault with a deadly weapon in the absence of countervailing circumstances. State v. Webb, supra, 518 S.W.2d at 321; State v. Lane, supra, 537 S.W.2d at 570.

We conclude that under the evidence here the trial court did not err in refusing to give the offered instruction on assault without malice. The evidence shows that Miss Duckett was at her table when the appellant struck her across the head, he propped her up against the cabinet and stabbed her several times with an ice pick. There was no legal evidence of provocation or mitigating circumstances as in State v. Fine, supra. The appellant’s theory that the companionship and long and amorous relationship between Miss Duckett and the appellant and the granting appellant permission to visit her in November so that she could turn him over to the police because her check and credit card were missing does not rise to the level of extenuating or mitigating circumstances so as to justify the giving of an instruction on assault without malice. Under the facts of this case as in State v. McCoy, State v. Lane, and State v. Webb, all supra, the appellant was either guilty of assault with malice or was entitled to an acquittal.

We find no error in refusing to give the offered instruction on assault without malice.

We have read the entire record, the briefs and the authorities relied upon by the parties and conclude that there is no prejudicial error. The judgment of conviction must therefore be affirmed.

The judgment is affirmed.

All the Judges concur.

      . Also known as Donnell Holmes Lee, Jr.

      . Miss Duckett was treated and released the next day.

      . Appellant’s motion for new trial stated that the court erred in refusing to give Instruction A because evidence of a “long, intimate relationship between the defendant and the victim and the dispute over a check and credit card” provided sufficient mitigating and extenuating facts to “arguably” show a lack of malice.

      . Appellant argues that these facts were sufficient to show extenuating and mitigating circumstances: (1) Miss Duckett had known appellant for thirteen years and had two children by him, (2) some months before, Miss Duckett accused him of taking a check which belonged to her, (3) Miss Duckett’s reason for granting him permission to live with her in November was to “get him in the house so I could turn him over to the police.”

      .Our courts have not made fine distinctions concerning the admissibility of tangible objects such as a weapon, bullet, etc. and photographs depicting the scene of an offense or the body of a victim. The principles relating to the admissibility of such demonstrative evidence apply to both types of items.

      . State v. Martin, supra, 530 S.W.2d at 450; State v. Hudson, 521 S.W.2d 43, 47 (Mo.App.1975)—gun, shovel and hatchet.

      . State v. Tyson, 363 Mo. 1242, 258 S.W.2d 651, 654 (1953) cited in State v. Moore, supra, 303 S.W.2d at 65; State v. Jackson, 499 S.W.2d 467, 472 (Mo.1973).

      . State v. Rogers, 523 S.W.2d 344, 347 (Mo.App.1975); State v. Brown, 524 S.W.2d 188, 190 (Mo.App.1975).

      . State v. Shawley, 334 Mo. 352, 67 S.W.2d 74, 83 (Mo.1933); State v. Moore, supra, 303 S.W.2d at 65-66; State v. Wallace, 504 S.W.2d 67, 71 (Mo.1973), cert. den. 419 U.S. 847, 95 S.Ct. 84, 42 L.Ed.2d 76; State v. Evans, 406 S.W.2d 612, 617 (Mo.1966)—clothing; State v. Martin, supra, 530 S.W.2d at 450.

      . State v. Blair, 531 S.W.2d 755, 761 (Mo.App.1975); State v. Jackson, supra, 499 S.W.2d at 472.

      . State v. Moore, supra, 303 S.W.2d at 66.

      . State v. Blair, supra, 531 S.W.2d at 761—photo of victim; State v. Frazier, 522 S.W.2d 46, 49 (Mo.App.1975); State v. Stewart, 529 S.W.2d 182, 184 (Mo.App.1975)—victim lying in street in blood; State v. Smith, 485 S.W.2d 461, 468 (Mo.App.1972)—assault; State v. Brown, supra, 524 S.W.2d at 190; State v. McClain, 536 S.W.2d 45, 46 (Mo.App.1976)—photo of deceased.

      . State v. Johnson, 461 S.W.2d 724 (Mo.1971) is a case where no lesser included assault instruction is required. State v. Fine, 324 Mo. 194, 23 S.W.2d 7 (1929) is an example where such an instruction is required — brandishing a com knife.


author: BILLINGS, Chief Judge.

text:
    In re the MARRIAGE OF Ethele Fogle HANNERS, Petitioner-Respondent, and Franklin Thomas Hanners, Appellant.
    No. 10415.
    Missouri Court of Appeals, Springfield District.
    April 18, 1977.

      L. Joe Scott, D. James Markel, Poplar Bluff, for petitioner-respondent.
    John A. Casey, David W. Keathley, Poplar Bluff, for appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

The trial court entered a default judgment dissolving the marriage and dividing the marital property of Ethele Fogle Han-ners and Franklin Thomas Hanners. Appellant husband had been personally served and employed an attorney, but no answer was filed to the wife’s petition for dissolution and neither he nor his counsel appeared for trial. Thereafter, appellant filed his “Motion To Set Aside Judgment Entry.” The trial court held a hearing on the motion and overruled the same. We affirm.

Appellant’s motion to set aside the default judgment did not allege any facts showing he had a meritorious defense or that he had a reasonable excuse for default. Whitledge v. Anderson Air Activities, 276 S.W.2d 114 (Mo.1955); Uldrich v. Tharp, 547 S.W.2d 498 (Mo.App.1977). As to his excuse for default, appellant testified at the hearing on the motion to set aside that he had made no effort to ascertain the status of the dissolution action filed by his wife. The wife testified she had told appellant she was going to proceed with the dissolution. There were no allegations of facts and no evidence was adduced that appellant or his attorney exercised reasonable diligence to prevent a default judgment. And counsel’s negligence in permitting a default judgment is, in the absence of fraud or collusion, imputable to the client. Fulton v. International Telephone & Telegraph Corp., 528 S.W.2d 466, 469 (Mo.App.1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1111, 47 L.Ed.2d 317; Askew v. Brown, 450 S.W.2d 446, 450 (Mo.App.1970). Under these circumstances the trial court did not abuse its discretion in refusing to set aside the default judgment. See Clinton v. Clinton, 444 S.W.2d 677, 681 (Mo.App.1969).

Appellant’s remaining point attempts to raise an issue not presented to the trial court in the motion to set aside default judgment. Since the point was raised for the first time on appeal, we decline to review it.

The judgment is affirmed.

All concur.


author: HARBISON, Justice.

text:
    STATE of Tennessee, Petitioner, v. Lois THOMPSON, Respondent.
    Supreme Court of Tennessee.
    March 14, 1977.

      Jack E. Seaman, Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    R. Bruce Ray, Jamestown, Roger E. Jen-ne, Elliott, Goode, Jenne & Varnell, Cleveland, for respondent.
   OPINION

HARBISON, Justice.

Respondent was indicted for violation of T.C.A. § 39-501, which provides as follows:

“Any person who willfully and maliciously sets fire to or burns, causes to be burned, or who aids, counsels or procures the burning of any house or outhouse, or any building, or any other structure, the property of himself or of another, shall be guilty of arson and shall be punished by confinement in the penitentiary for not less than three (3) years nor more than twenty-one (21) years.”

The indictment charged that the respondent

“unlawfully, feloniously, willfully and maliciously did counsel and procure the burning of a building owned by Cletus Benton, known as Holiday Plaza and located in the State and County aforesaid, by a person or persons to the Grand Jurors unknown, who did feloniously, willfully and maliciously burn the same, contrary to TCA 39-501 and against the peace and dignity of the State.”

The trial jury found respondent guilty of “procuring arson” and the judgment upon the verdict used the same phraseology, although under the statute it is expressly provided that a person convicted “shall be guilty of arson” rather than “procuring” the same. In the statute rendering convicted persons infamous, the offense is again referred to as “arson” without reference to whether a defendant personally committed the act, or counseled or procured it. T.C.A. § 40-2712.

We regard the error in the verdict and judgment as immaterial, and the same should be corrected to show that the respondent was convicted of arson under the provisions of T.C.A. § 39-501. See Broestler v. State, 186 Tenn. 523, 526, 212 S.W.2d 366 (1948); Wade v. State, 174 Tenn. 248, 251, 124 S.W.2d 710 (1939).

Despite the fact that the final judgment should have been a conviction of arson, the indictment charged the defendant with counseling or procuring the burning of the building, so that it was incumbent upon the State to establish that the accused did engage in such activity. The evidence offered by the State was largely circumstantial. At the conclusion of the State’s proof in chief, counsel for respondent moved for a directed verdict pursuant to the provisions of T.C.A. § 40-2529.' This motion was overruled, the trial judge finding that there was sufficient evidence to take the case to the jury.

Respondent did not stand upon her motion for a directed verdict and rest her case at that point. Although she did not take the stand, she offered four witnesses in her defense. While the testimony of these witnesses was generally favorable to the respondent, on cross-examination the State elicited from them some testimony favorable to and consistent with its theory.

At the conclusion of all of the evidence, the case was submitted to the jury without further reference to a directed verdict. Counsel for respondent did not renew the motion which had been made at the conclusion of the State’s proof in chief. The jury found respondent guilty, and the trial judge overruled a post-trial motion filed in her behalf.

On appeal, the Court of Criminal Appeals held that the trial judge was in error in not sustaining the motion of the respondent made at the conclusion of the State’s evidence in chief. The Court reversed the judgment of the trial court and dismissed the charges for that reason.

In following this procedure, the Court of Criminal Appeals, in our opinion, was in error. Since the respondent did not rest her case at the end of the State’s proof but offered evidence on her own behalf, her motion made at the conclusion of the State’s proof was, in trial parlance, “waived”. Thereafter any further consideration of a directed verdict would have to be based upon another motion embracing the entire record, and not just the State’s proof in chief. It was, therefore, error for the Court of Criminal Appeals in effect to go back to the midpoint of the trial and order a directed verdict upon the basis of the record as it then stood.

The procedural device known as a motion for directed verdict developed in the common law of this State, largely in civil cases. The Tennessee case law was incorporated into Rule 50 of the Rules of Civil Procedure, with only a few technical changes. Essentially the State procedure on directed verdicts is similar to that which developed in the federal courts.

An excellent discussion of the nature and use of the motion for directed verdict, particularly that made at the close of the plaintiff’s evidence, is found in the opinion of Judge Felts in Sadler v. Draper, 46 Tenn.App. 1, 326 S.W.2d 148 (1959). In that case it is pointed out that the motion for directed verdict was a successor to the older demurrer to the evidence, which proved impracticable and unwieldy in modern trial procedure. Like the demurrer to the evidence, however, the motion for directed verdict:

“ . . . is a common law device for separating law from fact, in order to test the legal sufficiency of the facts in evidence; and the rules governing the two procedures, while different, are analogous in many respects.” 46 Tenn.App. at 11-12, 326 S.W.2d at 153.

As pointed out in that case, no party has an absolute right to have a directed verdict granted until the close of all of the evidence. If a motion made at the conclusion of the plaintiff’s proof is overruled, the defendant must stand upon his motion, and rest his case without offering proof, in order to have the record at that point preserved for appellate review. If the motion is overruled and the defendant does not stand upon the motion, but rather proceeds to offer evidence, then it is necessary for the defendant to “renew” his motion — actually to make another motion — at the end of all of the evidence in order to have the same considered. Both the trial and appellate courts then review the entire record, not just the plaintiff’s case in chief, in determining whether the defense motion should be granted.

Because of differing burdens of proof and other fundamental differences between civil and criminal trials, for many years in this state the appellate courts disapproved the use of the directed verdict procedure in criminal cases. See Carudiers, History of a Lawsuit, § 363 (8th ed., Gilreath, 1963). Frequently it was stated that if the trial court or the appellate court were dissatisfied with the verdict of the jury, proper procedure was to order a new trial. See State v. Ferguson, 165 Tenn. 61, 52 S.W.2d 140 (1932); see also Stinson v. State, 181 Tenn. 172, 180 S.W.2d 883 (1944); Knowling v. State, 176 Tenn. 56, 138 S.W.2d 416 (1940).

Admittedly there are problems inherent in criminal cases which prevent complete adaptation of civil procedure on directed verdicts into criminal trials. Most jurisdictions, however, have not found these to be insuperable, and some form of directed verdict procedure is now authorized in the criminal law of nearly all of the states as well as in the federal system. See A.B.A. Standards Relating to Trial by Jury, Standard 4.5 and comments thereto; 3 Wharton’s Criminal Procedure § 520 (12th ed. Torcia, 1975); Winningham, “The Dilemma of the Directed Verdict”, 15 Vand.L.Rev. 699 (1962); Rule 29, Federal Rules of Criminal Procedure.

In Tennessee prior to 1968, there had been little development of practice or of case law regarding directed verdicts in criminal cases comparable to that which had occurred in civil procedure. In that year, however, the General Assembly enacted what is now T.C.A. § 40 — 2529, as follows:

“In a criminal prosecution the trial judge shall direct the jury to acquit the defendant if at the close of the evidence for the prosecution, or at the close of all the evidence, the court is of the opinion that the evidence is insufficient to warrant a conviction.”

This statute has been construed in a number of decisions by the Court of Criminal Appeals. While the considerations surrounding a directed verdict are not identical in criminal cases to those in civil cases, nevertheless the same basic principles apply, and a generally similar “test” for directing verdicts in criminal cases to that used in civil trials has been approved by that Court. See Jones v. State, 533 S.W.2d 326, 329 (Tenn.Cr.App.1975); Hill v. State, 4 Tenn.Cr.App. 325, 470 S.W.2d 853 (1971); Rambo v. State, 4 Tenn.Cr.App. 466, 472 S.W.2d 911 (1971).

We approve the following rule which was stated in the cases cited above:

“The rule for determining a motion for a directed verdict requires the trial judge and the reviewing court on appeal to look at all of the evidence, to take the strongest legitimate view of it in favor of the opponent of the motion, and to allow all reasonable inferences from it in its favor; to discard all countervailing evidence, and if then, there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied.” Jones v. State, 533 S.W.2d 326, 329 (Tenn.Cr.App.1975).

While again recognizing that there is not complete analogy between civil and criminal procedure, we are also of the opinion that under the present statute the practice used in civil cases should be used in criminal cases with respect to the times when a motion for directed verdict may appropriately be made on behalf of a defendant in a criminal trial. The trial judge should not be placed in error for overruling a motion at the conclusion of the State’s proof when the defendant has not then rested his case, but has gone forward with evidence in his own behalf. The principle of waiver has been almost universally applied in such cases in other states. See A.B.A. Standards, supra; State v. Smith, 332 So.2d 773 (La.1976).

In the instant case if the State is given the strongest view of the evidence, together with all reasonable and legitimate inferences which could be drawn in its favor, and if the countervailing evidence of the respondent is discarded, then we do not consider that a directed verdict for the accused is appropriate. The action taken by the trial judge at the conclusion of the State’s case is no longer available for review under the rules stated above. Had a motion been timely made at the conclusion of all the evidence, however, we are of the opinion that it would not have been proper for the trial judge to grant the same, and that he was correct in submitting the issues to the jury.

The proof, stated favorably to the State, reflects that the respondent had opened a business on leased premises in a newly constructed shopping center, in the Spring of 1974. This was a ladies’ clothing store, in which the respondent apparently received substantial financial assistance from one Herman Beaty. He had countersigned at least two notes with her at different banks, and was referred to in the record as a close personal friend of the respondent and her husband.

There were no financial records offered at the trial to show whether this business was profitable or not. It is clear, however, that by the date of the fire, October 8,1974, respondent was in rather severe financial difficulties. She was delinquent on several notes, sales taxes to the State, and rental payments to her landlord. She had given a number of checks which had been returned for insufficient funds. While respondent undertook through witnesses to explain these matters, there was clearly evidence to support an inference that the respondent was in straitened financial circumstances during the weeks preceding the fire.

Several witnesses testified that the fire, which consumed respondent’s shop and severely damaged some adjacent premises, began in the rear of the respondent’s store, near a platform at a receiving door. One witness working in a nearby store heard a muffled explosion, and when he ran outside he saw flames coming from respondent’s store. He said “there was more to the back” and that “it hadn’t gone sideways, either way.” This testimony, corroborated by other eyewitnesses, conflicted sharply with that of the respondent’s expert who concluded that the fire originated somewhere other than the respondent’s premises. At the least, a jury issue was presented as to whether the fire did or did not originate in the respondent’s store.

On the day following the fire, a portion of carpet, covered with debris, was found near a back door of the respondent’s store, soaked with gasoline. A piece of two-by-four plank, with which this door was secured on brackets, was found to be on the floor, rather than in place, charred only on top. One store employee, testifying for respondent, stated that this barrier was in place and secure just before the witness closed the store at about 9:30 p. m. on the night of October 8. She left in company with the respondent and some other persons, but one of these persons testified that after the group had reached the front door, the respondent left them, and went, alone, back into the store. This testimony was given by Mrs. Mullinax, who testified that the group had reached the front door and that the respondent was unable to find her key in order to lock it. She testified that respondent went back into her office, then returned stating that she had found her key.

We have no way of knowing how long respondent was thus alone or what she did. The record shows however, that within twenty minutes her building was in flames, and the next day there was evidence that the barrier on the rear door had been removed. Certainly some rather strong inferences favorable to the State and adverse to respondent suggest themselves.

While there is no eyewitness testimony that the respondent “counseled” or “procured” some other person to burn the building, there is testimony that immediately after the muffled explosion was heard and the fire was observed, an automobile was seen speeding away from the premises, going uphill and passing three or four other cars. There is also testimony that, whether she had “counseled” with him before the fire or not, Mrs. Thompson “counseled’ with Mr. Beaty immediately after the fire, going to his house that same evening and discussing “insurance” with him. It is perhaps significant that respondent did not call Mr. Beaty as a witness.

A few days after the fire, there was discovered in a service station operated by Mr. Beaty a substantial amount of inventory which had been shipped to the respondent’s store and which had been observed in the store by some of her employees. It had apparently been removed to Mr. Beaty’s premises either on the morning of the fire or a very short time previously, and was discovered on a shelf in his filling station, concealed behind products which are normally used in the servicing of automobiles. There was testimony that respondent’s store was crowded and lacked storage space; there was also testimony, however, that some of the items found in the station were needed for sales purposes. How and when respondent arranged for the merchandise to be placed in Mr. Beaty’s station is unexplained. In all events, the arrangement was made shortly before the fire.

It is not beyond reason for a jury to conclude that Mrs. Thompson and Mr. Beaty were in collusion in connection with this fire, particularly in view of the indebtedness of the business and Mr. Beaty’s obligations therefor. Certainly, as we have previously stated, the State is entitled to the strongest legitimate view of the evidence on this appeal, and we believe that reasonable minds could conclude that Mrs. Thompson had “counseled” with Mr. Beaty concerning this fire before it occurred, as well as after it, as charged in the indictment.

The foregoing is only a partial recitation of the evidence. There was testimony from which the jury could reasonably have concluded that Mrs. Thompson had recently increased the insurance on her stock of goods, and that she had attempted to over-insure, or at least highly insure, her accounts receivable. A substantial number of accounts receivable had been returned to her from a bank at which they had been factored, on the day of the fire, because the bank had found them uncollectible.

In view of the numerous suspicious circumstances surrounding this fire, we are firmly of the opinion that the Court of Appeals was in error in directing a verdict in this case, and its implicit conclusion that the verdict is contrary to the preponderance of the evidence also presents a very close issue.

The directing of a verdict, of course, is entirely different from reviewing the preponderance, particularly in criminal cases, where well-settled rules, too frequently cited to need discussion here, govern the role and function of an appellate court.

“It is a well-settled rule that this Court will not reverse a criminal case on the facts unless it is shown that the evidence preponderates against the verdict and in favor of the innocence of the accused.
“The verdict of the jury, approved by the Trial Judge, accredited the testimony of the witnesses for the State, and established their credibility. Such verdict also displaced the presumption of defendants’ innocence, raised a presumption of their guilt, and put upon them here the burden of showing that the evidence preponderates against the verdict and in favor of their innocence.” White v. State, 210 Tenn. 78, 84-85, 356 S.W.2d 411, 414 (1962).

It is certainly true that there is “countervailing” testimony in the record. An attempt was made by the respondent to explain all of the circumstances which we have above outlined. Inferences favorable to her can be drawn. The issues were extremely close, and there was evidence from which the jury could have found either guilt or innocence.

In this state, a trial judge has a unique function with respect to jury verdicts, in criminal eases as well as in civil cases. He is commonly referred to in the reported cases as a “thirteenth juror”, and is required either to approve or disapprove the findings of the jury. If he fails to exercise this function, the case will be reversed and remanded for a new trial. See Messer v. State, 215 Tenn. 248, 385 S.W.2d 98 (1964).

Where, as in the present case, the trial judge has approved a jury verdict, an appellate court should be reluctant to overturn that verdict on the basis of a preponderance of the evidence. That it has the authority to do so, in criminal cases unlike jury verdicts in civil cases, however, is well settled, and this function is an entirely different one from that of directing a verdict of acquittal.

In this case there is conflicting testimony as to the origin of the fire — whether it started in respondent’s premises at all, and if so whether it was incendiary in origin. Whether a case of arson was presented, and if so, whether respondent played any part therein by counseling or procuring it to be done were, in our opinion, issues for the jury, and we cannot conscientiously say that their verdict is contrary to the weight and the preponderance of the evidence, under rules governing appellate review of criminal trials.

The judgment of the Court of Criminal Appeals is reversed and the judgment of the trial court is reinstated at the cost of respondent.

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

      . See Rule 50, Federal Rules of Civil Procedure.


author: BROCK, Justice. HENRY, Justice,

text:
    STATE of Tennessee, Petitioner, v. William BENNETT, Respondent.
    Supreme Court of Tennessee.
    April 25, 1977.
    Donald S. Caulkins, Asst. Atty. Gen., for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    Wayne S. Taylor, Taylor & Taylor, Nashville, for respondent.
   OPINION

BROCK, Justice.

Defendant was convicted of selling a Schedule III controlled substance in violation of the Drug Control Act. The Court of Criminal Appeals reversed the conviction and remanded for a new trial, holding that the State failed to establish by a preponderance of the evidence that the offense occurred in the county of trial, Williamson County. To review this determination, we granted the State’s petition for certiorari.

Both Article 1, § 9, Constitution of Tennessee, and T.C.A. § 40-104, provide that the defendant has the right to trial by a jury “ . . .of the County in which the crime shall have been committed.” This right of venue is not an element of the criminal offense and, so, need not be proven beyond a reasonable doubt; preponderance of the evidence is sufficient. Harvey v. State, 213 Tenn. 608, 376 S.W.2d 497 (1964); Gilliland v. State, 187 Tenn. 592, 216 S.W.2d 323 (1948). Circumstantial evidence will do. Hopson v. State, 201 Tenn. 337, 299 S.W.2d 11 (1957).

The defendant made this drug sale at his home to undercover agent, Johnson, of the T.B.I. On the issue of venue, agent Johnson testified as follows on direct examination:

“Q. Mr. Johnson, this sale of the PCP on March 1, 1974, for $80.00, did this take place in Williamson County?
“A. Yes, sir.”

On cross-examination, he testified:

“Q. Where did you drive?
“A. Went up to the Interstate until the next exit, got off on Peytonsville Road.
“Q. How far down the Peytonsville Road did you go?
“A. I don’t recall.
* * * * * *
“Q. You know where the County Line is on Peytonsville Road?
“A. No sir, I don’t.
“Q. How do you know it’s in Williamson County?
“A. Well, this is what the Sheriff told me.
“Q. It’s what the Sheriff told you, but you don’t know yourself, while you were there, that the sale happened in Williamson County, do you?
“A. No sir.”

There is no other evidence in the record relevant to the issue of venue, and defendant contends that the foregoing testimony, part of which is hearsay, is insufficient to support the verdict.

Defendant did not object to the hearsay statement at the trial; it is, therefore, rightly to be considered as evidence in the case and is to be given such weight as the jury think proper under the circumstances obtaining. Yates v. State, 206 Tenn. 118, 332 S.W.2d 186 (1960); Paine, Tennessee Law of Evidence, § 185 at 206; McCormick, Law of Evidence, § 54 at 125-126; Uniform Rules of Evidence, Rule 1(1), (2).

This rule is well settled and we adhere to it. We think it is a sound rule. Nor do we agree with the view of the Court of Criminal Appeals that it operated unfairly against the defendant in this case. As noted, he did not object to the hearsay statement; neither did he offer any witness to show that the defendant’s residence where the sale occurred was not located in Williamson County. In short, defendant did not actually attempt to dispute venue in the trial court.

The Court of Criminal Appeals also concluded that “Venue in this case was established, at best, by inference”; but proof by inference is sufficient if the inference is a reasonable deduction from proven facts. Hopson v. State, supra, 299 S.W.2d at 14; Maples v. State, 50 Tenn. 408 (1872). The Court cited Franklin v. State, 64 Tenn. 613 (1875), which holds that proof of venue must not be left to “inference or construction.” However, the inference in that case had to arise from the following facts: The offense was committed near a house; the house was in the county; therefore, the offense occurred in the county. In our view, the inference in that case was much more tenuous than that here, where there is evidence that the sheriff stated that the location of the offense was within the county-

This case is more analogous to Gilliland v. State, supra, in which the defendant was convicted of robbing the prosecutor by taking his taxicab and money. The prosecutor testified that he did not know of his own knowledge the particular county he was in when the theft occurred, but he described the roads he drove over, and mentioned several landmarks. The State then introduced the testimony of the clerk of the criminal court, who had lived in the county thirty (30) years and worked as a postman, who then testified that the area described was, indeed, in the county.

Also quite similar is Taylor v. State, 520 S.W.2d 370 (Tenn.Crim.App.1974), in which the defendant was convicted for first degree murder in Shelby County, and one of the two issues in the case was whether venue was proven. The only evidence of venue was provided by the testimony of an eyewitness:

“Q. Mr. Griffin, did the facts that you have testified to here today, did they happen in Memphis, Shelby County, Tennessee?
“A. Yes, Sir.”

The Court found this proof to be sufficient.

Finally, we point out that with respect to venue slight evidence will be enough to carry the prosecution’s burden of preponderance if it is uncontradicted, as it is here. Collins v. Commonwealth, 508 S.W.2d 43 (Ky.1974); 1 Underhill, CRIMINAL EVIDENCE (6th ed. Herrick 1973), § 98. In our judgment, the evidence of venue supports the verdict.

We, therefore, reverse the judgment of the Court of Criminal Appeals and affirm that of the trial court. Costs are taxed against the defendant.

COOPER, C. J., and HARBISON, J., concur.

HENRY, J., dissenting, FONES, J., joining in dissent.

HENRY, Justice,

dissenting.

A Tennessee citizen, prosecuted for criminal conduct, has a constitutionally ordained right to trial in the county “in which the crime shall have been committed.” Art. 1, Sec. 9, Constitution of Tennessee. See also See. 40-104, T.C.A. He may not be deprived of this right without his consent, State v. Denton, 46 Tenn. 539 (1869), and proof of venue must not be left to inference or construction. Franklin v. State, 64 Tenn. 613 (1875).

Proof of venue is both a constitutional imperative and an essential predicate to the jurisdiction of the trial court. It may be proved of course, by circumstantial evidence, Gilliland v. State, 187 Tenn. 592, 216 S.W.2d 323 (1948), and by a preponderance of the evidence, with the burden of proving venue resting upon the prosecution. Harvey v. State, 213 Tenn. 608, 376 S.W.2d 497 (1964).

I agree with the general proposition that hearsay or evidence otherwise incompetent, admitted without objection, “may be considered for whatever it is worth by the court or jury trying the case.” This is the holding of Yates v. State, 206 Tenn. 118, 332 S.W.2d 186 (1960), relied upon by the majority. The ensuing sentence, apparently overlooked by the majority, reads as follows:

Evidence intrinsically destitute of probative quality acquires no new attribute in point of weight by its production in the case. 206 Tenn. at 121, 332 S.W.2d at 187.

Moreover, Yates did not deal with a constitutional imperative. Again, venue is constitutionally indispensable to jurisdiction and must be proved.

The majority places strong emphasis on the failure of the defendant to object to the hearsay testimony. In the context of this trial an objection, at this point, would have been a tactical blunder. The witness had testified on direct examination that the drug sale took place in Williamson County. But on cross-examination he admitted that he did not know that the sale took place in Williamson County, but that the Sheriff, who was not present at the sale, told him it happened in that county. This cross-examination utterly demolished the State’s proof of venue and yet, the majority holds that defense counsel should have objected to an answer which was completely favorable to his client. And by failing to object, the majority holds that this testimony, utterly destitute of probative value, is sufficient to meet the constitutional imperative of venue. This won’t wash. A defendant’s due process rights preclude a holding that he cross-examines at his own peril and at the risk of validating incompetent testimony.

The majority relies upon Gilliland v. State, supra, which, in my view has no relevance. There the venue was fully established by competent proof.

Reliance is also placed upon Taylor v. State, 520 S.W.2d 370 (Tenn.Cr.App.1974). This authoritative opinion of the Court of Criminal Appeals is, in no sense, analogous to the instant case. There the witness testified positively that the criminal acts occurred in Shelby County. He did not render his testimony worthless by affirming a fact on direct examination and disaffirming the same fact on cross.

The record in this case shows that the Sheriff of Williamson County was present in court during the trial. Indeed, he was the lead-off witness for the State. He was not recalled to establish venue. At the conclusion of the State’s proof, the defendant moved for a verdict of acquittal on the single ground that the State had failed to prove venue.

It would have been a simple matter for the State to have re-opened and called the Sheriff to supply the void in this critical area. It did not.

Instead of calling the Sheriff the State relied upon the testimony of a witness who, by his own admission, did not know in what county the sale occurred — just what the Sheriff told him.

This set of facts is sufficient to trigger the missing witness rule first announced in Fisher v. Travelers’ Insurance Company, 124 Tenn. 450, 138 S.W. 316 (1911), and set out in Craig v. Marquette Cement Co., 190 Tenn. 234, 229 S.W.2d 148 (1950) as follows:

The failure to call an available witness possessing peculiar knowledge concerning facts essential to [a party’s] cause, relying instead upon evidence of witnesses less familiar with the matter, gives rise to a strong presumption that the testimony of such uninterrogated witness would not sustain the contentions of [the party failing to call him]. (Emphasis supplied). 190 Tenn. at 237, 229 S.W.2d at 149.

The “strong presumption” phraseology is not universally used in the cases. Waller v. Skeleton, 31 Tenn.App. 103, 117, 212 S.W.2d 690, 697 (1948), an earlier case, holds that the failure to call such a witness “affords an inference.” Kidd v. Tennessee Gas Co., 33 Tenn.App. 302, 314, 231 S.W.2d 793, 798 (1950), a later case, uses the expression, “a presumption arises”, and Wooten v. State, 203 Tenn. 473, 314 S.W.2d 1 (1958) seems to view it as an “inference”, not conclusive as to any party but merely a fact for the consideration of the jury.

Whether the failure to call the Sheriff who possessed peculiar knowledge of the facts, relying instead upon one who had no such knowledge, creates a presumption, a strong presumption, affords an inference, or is an inference, the fact remains that this situation gives cause for pause. It leaves dangling the requirements of a constitutional imperative.

Under these circumstances I cannot reverse the unanimous conclusion reached by the Court of Criminal Appeals.

I would affirm.

FONES, J., concurring in dissent.