author: PER CURIAM. LUKOWSKY, Justice,

text:
    S. Rush NICHOLSON, Appellant, v. JUDICIAL RETIREMENT AND REMOVAL COMMISSION, Appellee.
    Supreme Court of Kentucky.
    Oct. 31, 1978.

      Frank E. Haddad, Jr., Louisville, for appellant.
    Paul A. Willis, Executive Secretary, Judicial Retirement and Removal Commission, Lexington, for appellee.
   PER CURIAM.

The Judicial Retirement and Removal Commission issued a public censure directed to Circuit Judge S. Rush Nicholson of the Jefferson Circuit Court. Nicholson sought review by this court. We rejected his various constitutional challenges to the procedures and actions of the Commission. We vacated the order of public censure and remanded the case to the Commission for a determination of whether Nicholson’s actions constituted gross and persistent incompetence or fell into the category of “an erroneous decision made in good faith.” See Nicholson v. Jud. Ret. and Removal Com’n, Ky., 562 S.W.2d 306 (1978). The Commission declared on remand that “substantial and inexcusable errors were made by Judge Nicholson which cannot be regarded as having been made in good faith.” Nicholson appeals from that determination.

The operative facts are not in dispute. David Ray Bell was tried in Judge Nicholson’s court. He was convicted and sentenced to one year imprisonment. The prosecutor thought he had a very weak case. He and the defense attorney made an agreement. The defense agreed to refrain from filing a motion for a new trial or from seeking appellate review. The prosecution agreed to withdraw its pending motion to revoke a previous probated sentence and instead to have the court enlarge the period of probation on that sentence to commence running when Bell was released from the penitentiary. It was also agreed that Bell would serve a one-year sentence. Judge Nicholson was advised of the agreements and expressed his approval.

Bell began serving his sentence on June 13, 1975. After he had served about five months of the one-year sentence, Bell was informed by the Parole Board that his old parole was being revoked.

In January 1976, Bell’s attorney filed a “Motion to Set Aside and/or Vacate Conviction and Illegal Sentence.” The grounds alleged were that KRS 439.352 mandated that Bell “should have accrued additional time toward the previous sentence which he had been sentenced to the penitentiary on. That the Parole Board failed to revoke his prior sentence, and therefore, he was entitled to be considered for parole in October, 1975.” The motion also asserted: “The Parole Board refused to consider him for parole and violated his parole and has indicated his next expiration will be December 1977, contrary to his constitutional rights to a hearing, etc. on revocation.” This motion was not signed by the movant, and was not verified. It contained no allegation of error or deprivation of rights in his trial. The Parole Board was not given notice of the motion; there was no proceeding at which evidence was presented.

Judge Nicholson treated this motion as an application for post conviction relief under RCr. 11.42. On January 19, 1976, he entered an order reciting that after a hearing and it appearing from the record that the defendant was entitled to 55 days credit prior to entry in the Reformatory on June 10, 1975, and “the defendant having remained in custody at LaGrange since that date; and it further appearing that the acts of the Parole Board in revoking a previous sentence were improper under KRS 439.352, in that it was revoked contrary to his constitutional rights to a speedy hearing; . It was directed that the sentence previously imposed was vacated and that Bell be immediately released from the Reformatory at LaGrange. The “hearing” recited in the order was apparently a joint appearance by the defense attorney and the prosecutor who advised the judge that they agreed the disposition made was proper.

Neither the judge, the prosecutor, nor the defense attorney read KRS 439.352, and this was revealed when the penitentiary officials refused to carry out the order. KRS 439.352 mandated that Bell’s prior parole was automatically revoked by his re-commitment on a new sentence received for commission of a crime while on parole. The chairman of the Parole Board advised Judge Nicholson of the correct effect of KRS 439.352 when they conferred about the problem of Bell’s release from confinement.

After receiving the advice of the Chairman of the Parole Board, Judge Nicholson entered a second order. It recited that motion “having been made to vacate the conviction and illegal sentence of the defendant, . . . ” and it directed that the previous sentence be vacated and that Bell be immediately released from custody.

Upon review of the Commission’s actions we apply the standard of proof described as “clear and convincing.”

“Of the courts of other jurisdictions which have considered the question of the appropriate standard of proof, all have rejected the beyond-a-reasonable-doubt standard that controls criminal prosecutions. Most of these same courts have also declined to adopt the civil preponderence-of-the-evidence standard in favor of the seemingly higher burden of proof by clear and convincing evidence .
“Given the character of the proceedings below and the nature of the public office, we are persuaded that the appropriate standard to be applied in regard to Commission proceedings is that of clear and convincing evidence.”

In re Hanson, Alaska, 532 P.2d 303, 307-08 (1975) (footnotes omitted). We have adopted this standard by Rule SCR 4.160.

Judge Nicholson stated that he thought the agreement made by counsel ought to be kept. He and a former judge of the Jefferson Circuit Court testified that RCr. 11.42 was used as an “overall blanket to grant relief where we thought it was equitable and fair to do so.” A busy trial judge must rely in some degree on the competence and integrity of the attorney regularly appearing before him. The prosecuting attorney and the defendant’s attorney recommended the action the judge took.

None of Judge Nicholson’s conduct was directed toward personal gain, but was, according to his evidence, motivated by a desire to prevent what he perceived to be the potential destruction of an individual’s rights by abuse of authority at worst or error and mistake concerning the enforceability of the agreement between counsel at best. See In re Hanson, supra.

We agree with the Commission that the handling of the matter by the judge and counsel was thoroughly inept. If the Jefferson Circuit Court is continuing to use RCr. 11.42 as an overall blanket to grant relief, any time the individual judge thinks it is “equitable and fair” let this be notice to cease such practice immediately. The requirements of RCr. 11.42 must be observed by the Jefferson Circuit Court as they are observed by the other circuit courts of this state.

In conclusion, we are not persuaded that the evidence was sufficiently “clear and convincing” that Judge Nicholson acted in bad faith or that the pattern of errors rose to the level of “gross and persistent incompetence.”

We entertain the highest regard for the Commission. It has served the public interest in this case. It has brought to light a practice in a circuit court that needed correction. The judge by the attendant publicity has already paid the penalty for his mistakes. We are gratified that no dishonest conduct can be laid at his door.

We consider the matter ended.

All concur except LUKOWSKY, J., who dissents with separate opinion in which STEPHENSON, J., joins.

LUKOWSKY, Justice,

dissenting.

Section 121 of the Constitution of Kentucky provides that judges may be disciplined by the Commission for good cause, that the Commission is a state body and that its actions are subject to judicial review by this court. It is unlike the Bar Association which has life, form and a disciplinary function in regard to lawyers only by grace of the rules of this court. Kentucky Constitution, Sec. 116; SCR 3. In the former case the Commission is charged by the people to maintain discipline. In the latter case this court is charged by the people to maintain discipline.

This independent creation, life and charge make it perfectly clear to me that we must measure the Commission’s actions with a totally different yardstick than we use in disciplinary cases involving lawyers. We are not directly charged with the duty to discipline, consequently, we are not the ultimate finders of fact. See Kentucky Bar Association v. Franklin, Ky., 534 S.W.2d 459 (1976). We are not privileged to treat the findings of the Commission as advisory and find facts for ourselves.

The Commission found that Judge Nicholson granted Bell’s RCr 11.42 motion not because of any improper action by the Parole Board as his order stated, but for the unarticulated reason that the agreement which induced Bell to waive his right to file a motion and grounds for a new trial and appeal his conviction had not been carried out. As a result, those who might consult the record would be misled as to the grounds for his decision. The Commission concluded that judges can not be allowed to be dissemblers and that conduct of this nature brings the judicial office into disrepute.

The Commission saw and heard the witnesses and had the opportunity to evaluate their credibility and assign appropriate weight to all or parts of their testimony. Giving due regard to these factors it can not be said that its finding is clearly erroneous.

Its conclusion is neither arbitrary nor capricious. Its action is within its jurisdiction and the discipline imposed is permissible and not excessive. SCR 4.300, Canons 1 and 2 A; SCR 4.020(l)(b)(v).

I would affirm the final order of the Commission.

I am authorized to state that STEPHENSON, J., joins in this dissent.

      . The majority finds that the standard of review to be applied by this Court to the Commission’s actions is “clear and convincing.” Clearly, this is the standard of proof the Commission is to use in making its findings and is not the standard to be applied by this Court in reviewing the Commission’s actions. SCR 4.160. The standard to be applied on judicial review of the Commission’s findings is whether such findings are “clearly erroneous.” SCR 4.290(1); CR 52.01.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Movant, v. Leila M. LOY (widow of Howard C. Loy), Smith’s Transfer Corporation, and Workmen’s Compensation Board of Kentucky, Respondents.
    Supreme Court of Kentucky.
    Oct. 31, 1978.

      Cyril E. Shadowen, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for movant.
    William A. Miller, Louisville, Peter G. Deprez, Shelbyville, Ind., Armer H. Mahan, Louisville, William L. Huffman, Director, Workmen’s Compensation Board, Frankfort, for respondents.
   PER CURIAM.

Discretionary review was granted to reconsider the decision in Young v. Pugh, Ky., 463 S.W.2d 928 (1971). After carefully considering the briefs and oral arguments of counsel, we have concluded that the decision of the Court of Appeals was correct and that the opinion written for that court by Judge Park accurately reflects our view that Young v. Pugh should be overruled. We adopt the opinion of the Court of Appeals as the opinion of this court. That opinion is as follows:

“PARK, JUDGE. This case arises out of a fatal heart attack suffered by Howard C. Loy on October 19,1972, while employed as a truck driver for Smith’s Transfer Corporation. Loy’s widow filed a claim for workmen’s compensation. The Workmen’s Compensation Board held that Loy’s death was compensable and apportioned liability between the employer and the Special Fund. Only 5% of the award was assessed against Smith’s Transfer Corporation as attributable to the work-related incident. The remaining 95% of the liability was assessed against the Special Fund as attributable to Loy’s pre-existing heart condition. Both Smith’s Transfer Corporation and the Special Fund appealed from the judgment of the Jefferson Circuit Court dismissing their appeals from the order and award of the board.

In its appeal, Smith’s Transfer Corporation asserts that the findings of fact by the board do not support the conclusion that Loy’s death was compensable. In its appeal, the Special Fund asserts that the entire award should have been assessed against the employer on the theory that the Special Fund has no liability for an active pre-existing heart disease condition.

SUFFICIENCY OF FINDINGS OF FACT

The employer argues that there is no finding of fact by the board that Loy’s death arose out of and in the course of his employment as required by KRS 342.005. The board clearly recognized the issue. In its opinion and award, the board stated:

The issue to be resolved is whether decedent’s death arose out of and in the course of his employment.

We conclude that the board clearly answered that question in the affirmative.

The relevant findings of fact in the opinion and award of the board are as follows:

3. On October 19, 1972, decedent was employed by Defendant-employer as a truck driver. While making a run, decedent was involved in an accident in Ohio, resulting in decedent sustaining a scratch to the bridge of his nose. The accident occurred around 3:00 A.M., and no other details of the accident were given. Around 7:00 A.M., decedent got a ride from the Dayton terminal by another truck driver and according to the driver, plaintiff died around 8:00 A.M., while en-route back to Louisville.
4. The medical testimony establishes that the decedent was suffering from an advanced case of atherosclerotic heart disease. He had had a heart attack in February of 1972, and as late as October 6, 1972, showed sign of an early stage of congestive heart failure.
5. The issue to be resolved is whether decedent’s death arose out of and in the course of his employment. Obviously, the medical testimony had to be based upon the decedent’s medical history. The cause of death was a heart attack as the result of ventricular fibrillation. The decedent’s heart disease was so advanced that the physicians seem to agree that his death could have been caused if he were asleep. Also, it appears that mental and emotional stress, as a result of the accident, would have caused his death by virtue of his heart disease. The coroner and pathologist, both of whom are physicians, were of the latter opinion. Dr. Olash, appointed pursuant to KRS 342.-121, was of the former opinion, that the work-related situation was in no way related to his death.
6. We find that from the totality of the circumstances that the evidence warrants a finding of a fortuitous unexpected injury traceable to the work by virtue of having occurred in the course of the work.

Although the board did not use the precise words, we conclude that there was a finding that Loy’s death arose out of and in the course of employment by Smith’s Transfer Corporation.

The accident suffered by Loy on the morning of October 19, 1972, while operating the truck of Smith’s Transfer Corporation clearly arose out of and in the course of his employment by Smith’s Transfer Corporation. He suffered a slight injury to his nose as a result of that accident. Giving the board’s findings of fact their reasonable and obvious meaning, we conclude that the board found as a fact that the ventricular fibrillation which caused the fatal heart attack was a result of the mental and emotional stress which Loy suffered as a result of the accident which arose out of and in the course of his employment. The board’s findings support the award against Smith’s Transfer Corporation.

The circuit court did not err in affirming the award made by the board against the employer. The medical evidence that the heart attack was work related was much stronger than that presented in Moore v. Square D Company, Ky., 518 S.W.2d 781 (1974).

APPORTIONMENT

The Special Fund emphasizes the finding by the board that Loy was suffering from ‘advanced heart disease’, that Loy had suffered a heart attack in February of 1972, and that Loy showed signs of ‘an early stage of congestive heart failure’ on October 6,1972, less than two weeks prior to his fatal heart attack. The Special Fund also notes that the board construed Moore v. Square D Company, supra, to hold that the Special Fund was responsible for ‘active pre-existing disability’ attributable to heart disease. The Special Fund asserts that its liability is limited to disability resulting from a dormant non-disabling disease condition which was aroused into disabling reality by the subsequent compensable injury. Because Loy’s pre-existing heart disease was ‘active’ rather than ‘dormant,’ the Special Fund claims that the employer is liable for the entire award.

In support of its argument, the Special Fund relies upon the decision in Young v. Pugh, Ky., 463 S.W.2d 928 (1971). In that case, the employee sustained an injury to his large toe when he stepped on a nail. The employee had been a diabetic for twenty-three years prior to the accident. Because of diabetic complications, the employee’s right leg was amputated. It was conceded that the employee was totally and permanently disabled. The Workmen’s Compensation Board held the employer liable only for temporary total disability. After the period of temporary total disability, all liability was imposed upon the Special Fund. The board attributed the employee’s permanent disability to the arousal of a dormant non-disabling diabetic disease condition within the scope of KRS 342-120(l)(b). In the Pugh case, the court set aside the opinion and award of the board, stating:

The disease was not dormant; it was active, effective, and progressive. The employee had been under treatment for the disease of diabetes for years. He took insulin daily to control the malady. Thus, it was a known disease condition. To say that the condition of diabetes in the instant case was quiescent, passive, resting, or static, is to ignore all of the medical testimony to the contrary. At the time the employee injured his toe, he had active, manifest, and known diabetes. The injury was superimposed on an already acutely manifest, active, and effective diabetic condition. The medical evidence taken as a whole, and as applied to the condition of the employee at the time he injured his toe, does not support the statutory requirement that the employee have a dormant nondisabling disease.
It is difficult to determine the true legislative intent and meaning of the use of the phrase ‘a dormant non-disabling disease.’ The phrase has importance and we must determine that meaning. We conclude that a person who has a disease condition known to him and who is being treated medically for that condition does not have a dormant nondisabling disease condition.

Having held that the employee’s diabetes was not a dormant disabling condition, the court concluded that the employer was solely liable and that the claim against the Special Fund should be dismissed.

According to the July 1977 edition of Shepherd’s Kentucky Citations, the Pugh case has never been cited as authority by this state’s Supreme Court in any other opinion. The opinion in the Pugh case emphasized only one subsection of KRS 342.-120 and ignored the remainder of that statute as well as the provisions of KRS 342.-005. The Pugh decision also conflicts with other decisions of the Supreme Court, many of which are later in time. We do not believe that the Pugh decision is controlling in this case.

At the time of Loy’s death, KRS 342.-005(2) required the board to apportion disability among the contributing causes including the work-related injury, ‘pre-exist-ing disease previously disabling,’ and ‘preexisting disease not previously disabling but aroused into disabling reality by the injury or occupational disease.’ Turning to KRS 342.120, we find that the Special Fund was to be made a party to the proceedings, ‘if either or both’ of two conditions existed. Under subsection (l)(a), the Special Fund was to be joined if the employee was ‘disabled.’ Under subsection (l)(b), the Special Fund was to be joined if the employee had ‘a dormant non-disabling disease condition which was aroused or brought into disabling reality by reason of a subsequent compensa-ble injury by accident.’

The meaning of the language utilized in subsections (l)(a) and (b) of KRS 342.120 has been explained in two recent decisions of the Supreme Court. In Haycraft v. Corhart Refractories Co., Ky., 544 S.W.2d 222 at 224 (1976), the Supreme Court stated that a pre-existing disease was ‘active’ if it had become ‘disabling’ prior to the subsequent accident. In Yocom v. Spalding, Ky., 547 S.W.2d 442 at 445, fn. 2 (1977), the Supreme Court stated that a ‘dormant’ disease condition was one which had not created any physical impairment in terms of ability to work prior to the subsequent injury. The Pugh opinion notwithstanding, whether the pre-existing disease condition was dormant does not turn on the employee’s knowledge of the condition or whether it was being treated medically pri- or to the subsequent injury. A pre-existing disease condition was dormant if it was non-disabling prior to the subsequent injury-

During oral argument, the Special Fund suggested that there could be a pre-existing ‘active non-disabling’ disease condition not covered by KRS 342.120(1). This argument is without merit. An ‘active non-disabling’ disease condition is a contradiction in terms. As pointed out by the Supreme Court in the Haycraft and Spalding cases, an ‘active’ disease condition is disabling; a ‘dormant’ disease condition is non-disabling.

Throughout these proceedings, the Special Fund has argued that the employer is liable for the entire award. This argument is without merit. Subsection (3) of KRS 342.120 expressly provided that the employer should be liable only for the degree of disability which would have resulted from the subsequent injury had there been no pre-existing disability or dormant but subsequently aroused disease. The slight injury to Loy’s nose, suffered in the accident, would not have caused his death but for his pre-existing heart disease. The board was correct in limiting the degree of the employer’s liability in this case. It is immaterial whether Loy’s pre-existing heart disease was disabling or not. In either event, the employer was liable only for the disability which would have resulted from the injury suffered on October 19, 1972, had there been no pre-existing heart disease. Young v. Young, Ky., 460 S.W.2d 832 (1970); Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971); Yocom v. Spalding, supra.

In a long line of eases, this state’s highest court has held that apportionment was required when a heart attack was not wholly, but only partially, work connected. See Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47 (1961); Hudson v. Owens, Ky., 439 S.W.2d 565 (1969) (dictum); Moore v. Square D Company, supra. The board did not err in attributing only 5% of the causation of Loy’s heart attack to the work-related truck accident.

Although the liability of the employer was properly limited in this case, it does not necessarily follow that the Special Fund was responsible for the remaining 95% of causation of the fatal heart attack. Under subsection (4) of KRS 342.120, any prior disability attributable to Loy’s pre-existing heart disease should have been excluded from consideration. The board should have determined the percentage of occupational disability existing prior to the truck accident on October 19, 1972, and the percentage of prior occupational disability should have been excluded in determining the percentage of causation for which the Special Fund was liable. Young v. Campbell, Ky., 459 S.W.2d 781 (1970); Young v. Young, supra; Yocom v. Spalding, supra. If Loy’s pre-existing heart disease had resulted in functional impairment prior to the injury of October 19, 1972, the board would have been required to assign some percentage of occupational disability to the pre-ex-isting condition. Young v. Campbell, supra; Griffin v. Booth Memorial Hospital, Ky., 490 S.W.2d 736 (1973); Yocom v. Spalding, supra.

In light of the advanced stage of Loy’s pre-existing heart disease, it is difficult to see how the board could have avoided finding that there was prior functional impairment and occupational disability. Nevertheless, this issue was never presented to the board. At no time did the Special Fund claim that there was prior occupational disability which was non-compensable under KRS 342.120(4). The Special Fund argued only that the employer was responsible for the entire consequences of Loy’s death. Loy’s widow was never required to meet a claim that Loy had a pre-existing occupational disability which was non-com-pensable. Even though the Board may have erred in failing to find some degree of prior occupational disability for which the Special Fund was not liable, this issue cannot be raised for the first time on appeal. Robinson Tool & Die v. Gross, Ky., 432 S.W.2d 443 (1968); Pittsburg & Midway-Coal Mining Co. v. Rushing, Ky., 456 S.W.2d 816 (1969). Because the argument that Loy suffered from a pre-existing non-compensa-ble occupational disability was never raised by the Special Fund before the board, the circuit court did not err in dismissing the Special Fund’s appeal from the award of the board.”

The case of Young v. Pugh, Ky., 463 S.W.2d 928 (1978) is hereby overruled and should no longer be considered authority. The decision of the Court of Appeals is affirmed.

All concur.

      . Loy’s death occurred before the effective date of the 1972 amendments to the Workmen’s Compensation Act. 1972 Ky. Acts, ch. 78, Sec. 37. On the date of Loy’s death KRS 342.005(1) provided:
      This chapter . . shall affect the liability of the employers subject thereto to their employes for a traumatic personal injury sustained by the employe by accident, and for disability resulting from occupational diseases as defined in this chapter, arising out of and in the course of his employment, or for death resulting from such accidental injury or occupational disease.

      . KRS 342.120(1) provided:
      A claimant may in the original application for benefits, or either party may by motion while the case is pending, accompanied by proper allegations, and the board shall upon its own motion at any time before the rendition of the final award, cause the special fund to be made a party to the proceedings if either or both of the following appears:
      (a) The employe is disabled, whether from a compensable injury, occupational disease, pre-existing disease or otherwise, and has received a subsequent compensable injury by accident, or has developed an occupational disease.
      (b) The employe is found to have a dormant nondisabling disease condition which was aroused or brought into disabling reality by reason of a subsequent compensable injury by accident or an occupational disease.

      . KRS 342.120 provided:
      If it is found that the employe is a person mentioned in subsection (l)(a) or (b) and a subsequent compensable injury or occupational disease has resulted in additional permanent disability so that the degree of disability caused by the combined disabilities is greater than that which would have resulted from the subsequent injury or occupational disease alone, and the employe is entitled to receive compensation on the basis of the combined disabilities, the employer shall be liable only for the degree of disability which would have resulted from the latter injury or occupational disease had there been no preexisting disability or dormant but aroused disease condition.

      . KRS 342.120(4) provided:
      The remaining compensation for which such resulting condition would entitle the employe, including any compensation for disability resulting from a dormant disease aroused into disabling reality by the injury or occupational disease, but excluding all compensation which the provisions of this chapter would have afforded on account of prior disabling disease or injury had it been compensated thereunder, shall be paid out of the special fund provided for in subsection (1) of KRS 342.122.


author: STERNBERG, Justice. LUKOWSKY, Justice,

text:
    Gaylon Arnett DUNN, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 31, 1978.
    Rehearing Denied Dec. 19, 1978.

      Jack E. Farley, Public Advocate, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STERNBERG, Justice.

The appellant, Gaylon Arnett Dunn, Jr., was indicted by the Fulton County Grand Jury for the armed robberies of “Holiday Inn” and “Big John’s Supermarket” in Fulton, Kentucky. The appellant denied committing each of the offenses and, in addition, pled not guilty by reason of insanity. Contrary to his plea, the appellant was found guilty on each charge and sentenced to imprisonment for 20 years on each count, with the sentences to run concurrently.

On October 7, 1976, the appellant, wearing a stocking mask, surprised Robert Davis, a former police officer, by jumping from bushes outside the Holiday Inn and pointing a .25-ealiber pistol at him. Holding the pistol to Davis’ back, the appellant proceeded into the motel with Davis, where he accosted the clerk and demanded money from the cash drawer. The clerk responded, whereupon the appellant took the money and departed.

On October 18, 1976, the appellant, again wearing a stocking mask, robbed Big John’s Supermarket flourishing a .25-caliber pistol. The robbery took place in full view of several clerks and customers. After receiving the money from the cashier, he left.

On this appeal the appellant raises three issues.

“I. Appellant was Denied his Federal and his State Constitutional Right to be Represented by Counsel at Trial.”

As to this first issue, it is beyond cavil that the appellant has a constitutional right to be represented by competent and adequate counsel. This is pure and simple “horn-book law” and this court has never held otherwise. It is rooted in his constitutional right to a fair and impartial trial. A person charged with a criminal offense must be afforded a fair trial and nothing less than a fair trial will satisfy the constitutional requirements.

The difficulty that we find with the appellant’s position is that not only did the trial judge provide the appellant with counsel, but the appellant proceeded to act as his own counsel. Appointed counsel sat with the appellant and from time to time took part in the proceedings, and, at appellant’s request, the court permitted the appellant’s brother also to sit with him during the trial. Appellate counsel argues that the mental condition of his client was such that he did not, and could not, rationally survey the seriousness of the charges and the advisability of being represented by someone skilled in the law. The appellant, therefore, charges that the trial judge should have advised him of the seriousness of the charges and of the advisability of being represented by skilled counsel. The conduct of appellant, as disclosed by the record, in presenting his defenses puts the lie to this argument.

In Short v. Commonwealth, Ky., 519 S.W.2d 828 (1975), we recognized that a defendant can waive his constitutional right to be represented by counsel, provided he does so knowingly. In House v. Commonwealth, Ky., 487 S.W.2d 917 (1972), we held that a defendant may be required to proceed to trial with counsel not of his own choosing. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court of the United States points out that a defendant has a constitutional right to represent himself.

An overview of the proceedings in the trial court is necessary to the determination of this issue, to-wit:

10/ 7/76 Holiday Inn robbed.
10/18/76 Big John’s Supermarket robbed.
1/24/77 Appellant arrested on two warrants, each charging robbery in the first degree (KRS 515.020).
2/ 8/77 Appellant indicated by the Pulton County Grand Jury.
2/ 8/77 Appellant arrested on offenses charged in indictment.
2/11/77 The following pro se proceedings were had: 4-page longhand “Motion for Appointment of Competent Counsel.” (Due to appellant’s in-digency.)
2/11/77 1-page longhand transmittal letter with filing instructions.
2/22/77 1-page typewritten “Motion for Reduction of Bail.”
2/22/77 1-page typewritten “Motion for Bail on Personal Recognizance.”
2/22/77 5-page typewritten “Motion for Speedy Trial and Petition for Guardianship by the Court.” (United States District Court)
2/22/77 1-page typewritten “Motion to Dismiss” the two-count indictment.
2/22/77 7-page typewritten “Outline of the Facts, Comments, Conclusions, and Tentative Defense Approach.”
2/22/77 1-page typewritten transmittal letter with instructions for filing the February 22, 1977 motions.
2/22/77 1-page typewritten “Motion for Bill of Particulars” and minutes of grand jury. (Furnished 3/25/77 and 4/22/77).
2/22/77 4-page typewritten statement of the “Facts of the Case” in support of his motion for bill of particulars.
3/17/77 2-page typewritten “Petition for Writ of Ha-beas Corpus.”
3/17/77 7-page typewritten “Motion by Defendant to Dismiss Indictment.”
3/17/77 8-page typewritten “A Statement of the Case.”
3/17/77 1-page typewritten “Petition for Writ of Mandamus” directed to Chief of Police of Fulton, Kentucky, for certain information and evidence.
3/17/77 1-page typewritten transmittal letter with instructions.
3/17/77 Copy of one-page typewritten letter addressed to Assistant Commonwealth’s Attorney requesting information.
3/30/77 2-page typewritten “Motion to Quash Indictment.”
4/ 4/77 2-page typewritten “Motion for Pretrial Conference for a Ruling Upon the Admissibility of Prejudicial Evidence,” with citations of legal authorities.
1-page typewritten “Subpoena List of Hostile Witnesses,” consisting of 12 persons. 4/ 4/77
1-page typewritten “Subpoena List of Witnesses,” consisting of five persons (not designated as hostile). 4/12/77
1-page typewritten list of “Defendant’s Supplementary Witness Subpoena List,” consisting of one person. 4/25/77
TRIAL APRIL 28-29.1977
5/ 3/77 6-page typewritten “Motion for New Trial.”
5/ 3/77 2-page typewritten supplementary “Motion for New Trial.”
5/ 3/77 2-page longhand unstyled request for post-trial relief.
5/ 4/77 2-page typewritten “Memorandum in Support of Motion for New Trial.”
5/ 9/77 1-page typewritten “Notice of Appeal.”
5/12/77 1-page typewritten “Defendant’s Prescriptive Statement in Negation of Judgment and Sentence.”
5/12/77 1-page typewritten “Motion for Transmittal of Documents” to the Supreme Court of Kentucky.
5/16/77 A typewritten “Notice of Appeal” filed by D. L. McNeill, designated as Public Defender. (This is the same person who was appointed by the court as counsel for appellant.)
6/28/77 “Motion to Proceed on Appeal In Forma Pauperis” filed by D. L. McNeill.
6/28/77 “Motion for Extension of Time for Filing Record on Appeal” filed by D. L. McNeill.

The transcript of record reveals that the trial started on April 28, 1977, and ended on the following day. The appellant sought and was granted permission for his brother, Maurice Dunn, to sit and advise with him during the trial. The court-appointed counsel was not acceptable to the appellant because, as charged by appellant, he was 86 years of age, hard of hearing, and had, just a few months prior, successfully represented his wife in their divorce action. The appellant chose to represent himself; however, throughout the trial the appointed counsel did sit with appellant and from time to time did participate in the proceedings. The record discloses that appellant’s waiver of counsel was intelligently, competently, understandingly and voluntarily made. Sizemore v. Commonwealth, Ky., 450 S.W.2d 497 (1970). Also, the transcript reveals that both the trial court and the Commonwealth’s Attorney extended liberties to the appellant in the conduct of his defense beyond that which would have ordinarily been granted a lawyer in making a defense.

Counsel for appellant cites the case of Fultz v. Commonwealth, Ky., 398 S.W.2d 881 (1966), for the proposition that a defendant is entitled to reject appointed counsel and to have a substitute appointed if that defendant demonstrates good cause for rejecting said counsel. Although appellant had requested the appointment of designated counsel, he has not demonstrated any good cause for having rejected the court-appointed counsel. As a matter of fact, the trial court, in speaking of the appointed counsel, said:

“The Court notes further that the Honorable Dee L. McNeill has practiced law in this state for sixty years and that he probably has handléd more criminal cases than any lawyer in the state alive today. The Court notes that Dee L. McNeill is very active in the practice of law and very capable of handling matters of this kind.”

A review of the entire record unequivocally demonstrates that the appellant himself either was skilled in the law or, if not himself skilled in the law, had the assistance of skilled counsel in his pretrial and post trial procedures and in his courtroom demeanor. This court does not believe that this case could have been handled in the manner in which it was handled by anyone unskilled in the law. A trial judge who is on the scene observing what is going on and constantly appraising the situation has a discretion in his appointment. We do not believe that the trial court acted in a manner clearly erroneous in refusing to appoint counsel other than the one who was appointed. Appellant does not appear to have been prejudiced by representing himself in the manner disclosed by the record.

“II. Appellant was Denied Due Process of Law and a Fair Trial as the Result of the Trial Court’s Failure to Conduct a Hearing on the Issue of Appellant’s Competency to Stand Trial.”

Secondly, counsel for appellant argues that the trial court should have conducted a hearing on the issue of the appellant’s competency to stand trial.

RCr 8.06 provides:

“If upon arraignment or during the proceedings there are reasonable grounds to believe that the defendant is insane, the proceedings shall be postponed and the issue of sanity determined as provided by law.”

The appellant advised the trial judge that he suffers from psychotic schizophrenia, paranoid type, chronic. No medical testimony was offered to support this allegation. Dr. White, appellant’s regular doctor, refused to diagnose appellant’s condition in such language. The appellant, however, does take medication daily to arrest his depressive attitude, and he receives social security medical benefits in the sum of $194.80 per month. His check is mailed to his bank, where it is deposited to his account. The effect of appellant’s condition, whatever it is, is to cause him from time to time to become depressed and to avoid people. There was no testimony that the appellant at any time is violent or that he does anything unusual or bizarre other than to stay away from home and away from people for a week or so at a time. After overcoming his despondency, he returns to his home and normal living conditions. The appellant argues that his condition, both prior to and during the trial, was such as to manifest reasonable grounds to believe that he was insane, thereby compelling a hearing to determine whether he comprehended the nature and consequences of the proceedings against him and could participate rationally in his defense.

The standard laid down by this court in Commonwealth v. Strickland, Ky., 375 S.W.2d 701 (1964), is:

“The terms ‘insane,’ ‘unsound mind,’ and ‘mental illness’ are too loose to serve as a reasonable test of whether a person is properly fit to plead or defend himself in a criminal proceeding. For this purpose, whatever may be the technical classification of his mental state, legally or medically, the teat is whether he has substantial capacity to comprehend the nature and consequences of the proceeding pending against him and to participate rationally in his defense. Cf. 14 Am.Jur. 802 (Criminal Law, § 45). It is not necessary that this determination be made by a jury.”

In Mishler v. Commonwealth, Ky., 556 S.W.2d 676 (1977), we denied error on the part of the trial court in refusing to conduct an evidentiary hearing on the defendant’s competency to stand trial.

In Huff v. Commonwealth, Ky., 560 S.W.2d 544 (1977), we said:

“Being diagnosed as schizophrenic some 15 years before the trial, with no intervening action or conduct of irregularity, is not such reasonable grounds that would put a trial judge on notice that appellant was not competent to stand trial.”

When this court recognized that a defendant could waive his constitutional right to be represented by counsel and act as his own advocate, it must have realized that the procedures of a layman and some of his expressions would not meet accepted professional standards. The courts are concerned with the paramount question that a defendant receive a fair and impartial trial. In the case at bar, the record delineates that the conduct of the appellant in the handling of his case was not so bizarre as to put the trial court on notice of any mental deficiency. As a matter of fact, the trial judge wrote, “⅝ * * the defendant very ably and intelligently handled his own case, and from his action it was certainly no evidence of him being insane.”

Appellant’s counsel directs our attention and makes much to do over the fact that the appellant labors under the belief that this prosecution was in effect a persecution and a perverted vendetta against him by Milford Jobe, Chief of Police of Fulton, Kentucky. This argument is not supported by any evidence of quality. However, the record is not void of acts and conditions that could indicate to a defendant with a persecution complex that such was the case. In this case, whether appellant’s belief was right or wrong, it was pursued in his interrogation of the witnesses. Whether this worked to his advantage was only a calculated risk which appellant took. Many lawyers of ability, during the course of a trial, take calculated risks, sometimes to their advantage and sometimes to their disadvantage.

The trial court did not err in failing to conduct an evidentiary hearing to determine appellant’s competency to stand trial. The court witnessed the action and conduct of the appellant, from which he determined that such a hearing was not necessary.

“III. The Sentence Imposed Against Appellant must be Vacated Because he was not Represented by Counsel at the Sentencing Hearing.”

Since we have held that the appellant represented himself in this action, his argument that he was not represented by counsel at the sentencing proceeding fails. The appellant was present and represented himself on this occasion.

The judgment is affirmed.

CLAYTON, JONES and STEPHENSON, JJ., concur.

LUKOWSKY, J., files a dissent, in which PALMORE, C. J., and REED, J., join.

LUKOWSKY, Justice,

dissenting.

The record establishes that the trial judge was made aware of the following facts either before or during trial.

1. Dunn was arrested at Western State Mental Hospital while attempting to obtain medication.

2. Dunn had been diagnosed a psychotic, schizophrenic, paranoid type, chronic, permanent as early as 1939.

3. On a number of occasions Dunn had been adjudged to be legally and psychiat-rically insane.

4. Dunn was receiving social security benefits as a result of his mental illness.

5. Dunn maintained he was being fraudulently persecuted in “kangaroo” courts as a result of a conspiracy involving the chief of police, the federal government and others.

6. Dunn was taking medication and claimed he did not know where he was half the time.

7. Dunn stated he functioned very badly when his “cycle . . . hits” and experienced intermittent prolonged amnesia.

8. Dunn asserted box cars talked to him both informatively and sensibly.

In Via v. Commonwealth, Ky., 522 S.W.2d 848 (1975) we held that a hearing is required sua sponte whenever the record reflects reasonable grounds to believe the defendant is not mentally competent to stand trial. The appellate review of a failure to provide a hearing on competence to stand trial is comprehensive. It is not limited by either the abuse of discretion or clearly erroneous standard. The question to be answered by the appellate court is whether a reasonable judge, situated as was the trial judge whose failure to conduct an eviden-tiary hearing is being reviewed, should have experienced doubt with respect to the defendant’s competency to stand trial. DeKaplany v. Enomoto, C.A.9th, 540 F.2d 975, 983 (1976).

That my colleagues are able to ignore the enumerated facts and answer this question in the negative astonishes me. I think an affirmative answer is not only indicated but compelled. Albeit that the record may reflect facts tending to establish Dunn’s mental competency and that they might warrant such a finding, the necessity of a hearing is not eliminated. Via, supra at 850. The distasteful answer may not be avoided by the application of the convenient rationalization that Dunn was crazy like a fox.

The odor of the case is further fouled by another unfortunate development. The trial court appointed counsel for Dunn. He requested that this appointment be vacated and that other counsel be appointed for him because the original appointee was eighty-six years of age, hard of hearing and had recently represented his former wife in their divorce case. The trial court denied the request.

When the case was called for trial Dunn announced that he was rejecting his appointed counsel and would represent himself. The trial court acquiesced in this action by directing counsel to sit at Dunn’s table and give him such advice as he desired. The trial court did not conduct a hearing to determine Dunn’s mental competency to waive counsel or warn him of the dangers and disadvantages of self representation. Dunn proceeded to try his case.

Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966), stands for the proposition that when the mental competency of a defendant becomes suspect he is entitled to a separate hearing, independent of the issue of competency to stand trial, on his competency to waive his constitutional right to representation by counsel and conduct his own defense. State v. Westbrook, 90 Ariz. 30, 406 P.2d 388 (1965), reversed, 101 Ariz. 206, 417 P.2d 530 (1966); United States ex rel. Martinez v. Thomas, C.A.2d, 526 F.2d 750, 754 (1975). Faretta v. California, 422 U.S. 802, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) requires that before a defendant is allowed to proceed pro se he be made aware of the dangers and disadvantages of self representation, so that the record will establish that he knows what he is doing and that his choice is made with his eyes wide open. Neither constitutional requirement was met here. This renders the conviction as hollow as termite-infested wood. State v. Bauer, Minn., 245 N.W.2d 848, 858-860 (1976).

I would reverse the judgment and remand the case to the trial court for further proceedings consistent with Hayden v. Commonwealth, Ky., 563 S.W.2d 720, 723 (1978) and State v. Westbrook, 101 Ariz. 206, 417 P.2d 530 (1966).

I am authorized to state that PALMORE, C. J., and REED, J., join in this dissent.


author: STERNBERG, Justice.

text:
    Eugene HARDIN, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    Oct. 31, 1978.
    Prank E. Haddad, Jr., Louisville, Travis Combs, Jr., LaGrange, for Movant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for respondent.
   STERNBERG, Justice.

The movant was indicted by the Oldham County Grand Jury for wanton endangerment in the first degree (KRS 508.060) and for being a persistent felony offender (KRS 532.080). He was found guilty on the wanton endangerment charge and his penalty was fixed by the jury at three years’ imprisonment. In a bifurcated trial, the same jury which had found the movant guilty of wanton endangerment, after hearing the evidence, found him guilty of being a persistent felony offender and fixed his punishment at 15 years in prison. Thereupon, the trial court sentenced the movant to serve 15 years in the penitentiary. The Court of Appeals of Kentucky affirmed the conviction. This court granted discretionary review on two issues only.

I. Is KRS 508.060 defining wanton endangerment in the first degree impermissi-bly vague so as to be unconstitutional?

Counsel for the movant argues, (1) the statute is not expressed in a manner so that persons charged by the statute can understand the legislative will; (2) persons charged thereunder do not have fair notice of what activity the statute prohibits by its standards; and (3) the statute lacks clear statutory guidelines to prevent arbitrary enforcement.

KRS 508.060 provides as follows:

“Wanton endangerment in the first degree. — (1) A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person. (2) Wanton endangerment in the first degree is a Class D felony.”

The standards by which this court is guided in answering this first issue are set out in Sasaki v. Commonwealth, Ky., 485 S.W.2d 897 (1972), and are as follows:

“ ‘The accepted test in determining the required precision of statutory language imposing criminal liability is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Anderson v. United States, 215 F.2d 84 (6 Cir. 1954); and Roberts v. United States, 226 F.2d 464 (6 Cir. 1955). This test is qualified to the extent that it is understood that the due process clause of the Constitution does not require impracticable or impossible standards of specificity. United States v. Carter, 311 F.2d 934 (6 Cir. 1963).’ ”

We need to put the commission of the offense of wanton endangerment in its proper setting. The victim, Ricky Ryans, 17 years of age, described the encounter as follows:

“Q. Tell the jury what happened.

A. Well, I come in and me and Gary Smith and Geno Ritter was sitting on the windowsill there in front of the station. There is some bricks there and we were sitting on the windowsill. These two guys drove up in a white pick-up truck. I guess they asked for gas. I don’t know, I couldn’t hear, but as soon as they pulled up, Geno walked out there and started putting the gas in the truck. Well, this guy, the gas had already been running in the truck for maybe 20 seconds, I guess, and this guy said put some fucking gas in the truck.

Q. The passenger or the driver?

A. The passenger.

Q. Do you see him here in the Courtroom? A. Yes, sir.

Q. Would you point him out?

A. Right there (pointing).

Q. You have indicated Mr. Hardin?

A. Yes, sir.

Q. What happened then?

A. Well, he said put some fucking gas in the truck and Geno said the gas is already going in the truck. But Geno seen that the guy, you know, there was something wrong with the guy or something, so Geno walked back up there to pump and stood by the pump. Then the guy said, ‘Wash this fucking windshield.’ And Geno started washing the windshield. Then he asked — I think he started with Gary Smith first. He asked Gary Smith his name and I think Gary Smith said Gary. Then he asked Geno what was his name. He said Geno. He said, ‘Sweetheart,’ which he was talking to me and I was standing in front of the door at the building. He said, ‘What’s your name?’

Q. How far were you away from him?

A. What, from the truck and him?

Q. Mr. Hardin. Was he still in the truck?

A. He had stepped out of the truck. Just outside the door.

Q. How far away was he?

A. From me?

Q. Yes.

A. I would say 20 foot.

Q. Then what happened?

A. Then he said, ‘Sweetheart, what’s your name?’ And I said Ricky. I didn’t say it real loud or nothing, but that is just what I said. Then he said, ‘Sweetheart, I said what’s your name?’ I didn’t answer him. He said, T said, Sweetheart, what’s your name?’ I still didn’t answer him. I had done answered him once. Then he said, ‘I’ll fix that little bastard’ and he reached up on the dash. I didn’t see what he got right then, but as soon as he walked around by the truck, Gary Smith said he has got a gun. I looked and I seen he did have a gun.

Q. Did he have it in his hand?

A. Yes. He had it in his hand, no holster or nothing. It was just right in his hand.

Q. Who are you talking about?

A. Eugene Hardin.

Q. Then what happened?

A. Then, he walked up there and Gary Smith was standing right directly in front of me, just the way he was standing, and he pushed Gary Smith out of the way and when he did, he come around and slapped me. Then he called me a little son of a bitch. Then, right then, he said, T think I’ll just blow your little ass off.’

Q. Did he have the gun with him?

Then, when he did, he grabbed the gun with two hands like this (indicating). Then this guy that was riding with him, the driver — I don’t see him. A.

Q. Describe the gun that he had.

A. It was nickel plated. It was a Smith. Q. Short barrel, long barrel?

A. It was short barrel.

Q. Silver or blue?

A. It was nickel.

Q. Is that white or blue?

A. Sir?

Q. What color was it, white or blue, Ricky? A. It was white.

Q. Show you a gun that has been previously introduced into evidence. Look at that gun.

A. Yes, sir.

(Reporter’s note: Mr. Ryans examines the gun.)

Q. Would the gun he had look anything like that?

A. Yes, sir. It looks identical to it.

Q. You are telling the jury that this looks exactly like the gun he had?

A. Yes, sir.

Q. Where did he have that gun? How close was it to you?

A. One time it wasn’t but about 18 inches from my head.

Q. What did he do after he pointed the gun toward you?

A. He said, T think I’ll blow your little ass off’ and when he did, his partner who was driving — he hadn’t never got out of the truck as I had seen until then — and I guess when his partner seen that he was really going to shoot me, he come out of the truck and he said, ‘You don’t want to shoot him. He ain’t nothing but a boy.’ A boy or a kid one. He said one of the two. And when he did, that guy started turning away and walked from me, but when he did, he doubled his fist and he hit me right here (indicating). That’s when he busted my lip and chin.

Q. Who hit you?

A. Eugene Hardin.

Q. Where was the gun when he hit you? A. In his hand.

Q. Did he hit you with the gun or his other hand?

A. Just his other hand.

Q. How many times did he hit you?

A. Twice as I can recall of.

Q. Did he do anything besides hit you twice?

A. No, sir. Besides calling me some vulgar names and threatened to kill me.

Q. When this other man got out of the truck, what did he do?

A. He grabbed hold of the guy’s arm. Q. Grabbed hold of whose arm?

A. Eugene Hardin’s.

Q. Then what did they do?

A. Well, when he grabbed Eugene Hardin, he started to walk away, but as he did, he hit me that time as I told you.

Q. After he hit you, what did he do? A. Well, he turned around and walked off and I was kind of dizzy then, but I did get in my car and leave. And then when I turned around, I was walking over to my car to get in, I seen him swing at Geno Ritter.

Q. Saw who swing at him?

A. Eugene Hardin. He had walked back over to the truck then. As soon as he got, I don’t know, seven feet from me, I started back towards my ear, which my ear was setting right beside me, beside the building.

Q. Why did you get your car?

A. Because I was scared for my life.

Q. Where did you go?

A. You see, I had just come to work and as I did, I seen the Chief of Police of LaGrange, I seen his car setting there at the Belle of LaGrange and I figured there was a chance it might be there which it was.

Q. Tell the jury, where did you go when you left the station?

A. I went right directly to the Belle of LaGrange, which is less than a mile.

Q. Why did you leave the station?

A. Because I was getting the police.

Q. Was Mr. Hardin there when you left? A. Yes, sir.

Q. What was the last thing you saw Mr. Hardin do before you left?

A. Swing at Geno Ritter.”

All that is required of a statute is fairness. It is not necessary for the statute to be so specific as to delineate the facts of any one condition under which the act of wanton endangerment may be performed, but a general statement is sufficient. The use of words is an art possessed by too few of us. This makes for an obligation on those who possess this art to write so that the rest of us can understand what has been written. Consequently, we must take a “man on the street” approach to normal activities. Has the statute defined what can or cannot be done with such clarity that persons upon whom it is designed to operate can understand it? We think that it does. Does the statute provide fair warning. We think it does. So as to avoid arbitrary treatment, does it provide explicit standards for those persons who apply it — the judge, the jury, the prosecuting attorney, and the arresting officers? We think that it does. Does it prohibit the exercise of any constitutional freedom? We think it does not. We cannot live unto ourselves but must live in a society where the rights of others as well as our own must be considered. While wanton endangerment may be committed in many ways, we cannot conceive of any person who would characterize the movant’s conduct as anything other than wanton endangerment.

We hold that KRS 508.060 is constitutional and reject the argument that its terms are vague and not capable of comprehension.

II. Does the persistent felony offender conviction place the movant in double jeopardy?

To clearly understand the movant’s argument, we quote from his brief as follows:

“K.R.S. 532.080 dictates the use of separate proceedings for the determination of guilt on the primary and persistent felony offenses. It is within this distinction that the present Kentucky statute is constitutionally infirm.”

In his reply brief the movant more succinctly states his attack as follows:

“Appellant merely argues that the particular mechanism chosen by the Kentucky State Legislature to more severely penalize persistent felony offenders is vi-olative of the Double Jeopardy Clause of the Fifth Amendment.”

The Fifth Amendment to the United States Constitution guarantees that “ * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * The procedure by which a person charged with being a persistent felony offender is tried is found in KRS 532.080(1), which provides as follows:

“Persistent felony offender sentencing. —(1) When a defendant is found to be a persistent felony offender, the jury, in lieu of the sentence of imprisonment assessed under KRS 532.060 for the crime of which such person presently stands convicted, shall fix a sentence of imprisonment as authorized by subsection (4) of this section. When a defendant is charged with being a persistent felony offender, the determination of whether or not he is such an offender and the punishment to be imposed pursuant to subsection (4) of this section shall be determined in a separate proceeding from that proceeding which resulted in his last conviction. Such proceeding shall be conducted before the court sitting with the jury that found the defendant guilty of his most recent offense unless the court for good cause discharges that jury and impanels a new jury for that purpose.”

This statute was adopted by the regular 1974 session of the Kentucky General Assembly as part of the Kentucky Penal Code (Ch. 406, p. 831, p. 873) and became effective January 1, 1975. Insofar as KRS 532.-080 is concerned, it had for its purpose the homogenizing of the treatment of recidivists with the new penal code and uniform proceedings dealing with persistent felony offenders.

We have held, and it is universally recognized, that a person who is a persistent felony offender has attained a status. Sweeny v. Commonwealth, Ky., 442 S.W.2d 598 (1969). Having attained a status, the persistent felony offender is subject to treatment afforded others in that status and which is inapplicable to those not of that status. The facts necessary to be proven to secure and uphold a conviction on the primary offense are separate and distinct from those necessary to be proven to sustain a conviction as a persistent felony offender. It is impermissible to present to the jury facts upon which a person charged with being a persistent felony offender was initially tried and convicted. Berning v. Commonwealth, Ky., 565 S.W.2d 443 (1978). The movant argues that the sentencing for persistent felony offenders is the imposition of additional punishment to that fixed by the jury on a prior conviction. There is no additional punishment imposed by a persistent felony offender conviction, merely a more severe punishment. KRS 532.080 does not create or define a criminal offense. It recognizes a status and, in a proceeding separate and apart from the initial trial, fixes a penalty which is to be imposed rather than the one fixed by the jury on the initial trial. A bifurcated trial such as KRS 532.080 requires is designed to eliminate any unfair influence which the facts necessary to sustain a primary conviction may disclose.

In Brickey “Kentucky Criminal Law.” Sec. 29.04, pp. 333, 334, it is stated:

“The Penal Code requires a bifurcated proceeding when the defendant is charged with being a persistent felony offender. Severance of the issues of guilt of the felony with which the actor is presently charged and of determination whether or not he is a persistent felony offender, is designed to remedy the potential prejudice and confusion which could result from considering the defendant’s present culpability in light of his past conduct. * * * ”

KRS 532.080 provides for a more severe penalty for persistent felony offenders than the penalty which had been fixed by the trial jury on the primary conviction. When we consider the actual mechanism required by KRS 532.080, we find that in truth and in fact no sentence is actually imposed pursuant to the primary conviction prior to the second step in the bifurcated proceeding. The trial jury, if it finds an accused guilty on the primary charge, then proceeds to fix his punishment. The second trial, which is the second step in the bifurcated proceeding, submits to the jury the question of whether the accused is a persistent felony offender. If the jury finds the accused guilty, it then fixes the penalty as designed by statute. Then and only then does the court proceed to enter a judgment sentencing the defendant to a term of imprisonment. On the other hand, if a person charged and tried with being a persistent felony offender is found not guilty, then and in that event the sentence fixed in the trial of the primary offense is imposed.

Although not a white horse case with the instant action, the same principle of constitutional law as declared in Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912), is applicable and dispositive of this issue. Graham was convicted for more than one felony offense under an alias name. Thereafter, in a separate proceeding he was tried and convicted of being a habitual criminal. The Supreme Court of the United States found no fault with that bifurcated procedure. We find no fault with the bifurcated procedure provided for in KRS 532.080. It does not place the movant in double jeopardy.

The decision of the Court of Appeals is affirmed.

All concur.


text:
    Terrell Lynn HENDLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 31, 1978.

      Jack E. Farley, Public Advocate, Rodney McDaniel, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

On April 1, 1977, the Simpson County Grand Jury returned two indictments against the appellant; one charged him with first-degree arson (KRS 513.020(1)) and the other charged him with two counts of murder (KRS 507.020(l)(b)), to all of which the appellant pled not guilty. A two-day trial resulted in the appellant’s being found guilty of arson in the third degree and two counts of manslaughter in the second degree. His punishment was fixed at five years’ imprisonment on the arson charge and ten years’ each on the manslaughter charges. The three sentences were ordered to run consecutively.

The evidence discloses that at or about 3:00 or 3:30 a. m. on March 27, 1977, an apartment building in which the appellant’s girl friend resided was intentionally burned by the appellant, causing the death of two persons. The fire started from a burning bush at ground level, at a back outside corner of the apartment, about 24 inches from the house. The appellant was interrogated on several occasions. On the day of the fire, at about 3:00 p. m., after having been warned of his Miranda rights, the appellant expressed a willingness to talk to his interrogator. He was questioned off and on for about two hours. He stated that he had not been at the site of the fire until after the fire had started. On the following day, March 28, after again having been advised of his Miranda rights, the appellant again was interrogated; this time for a period of three hours, which included the time necessary for him to receive a polygraph examination. All of the interrogation was placed on a tape recorder. After the interrogation, the appellant gave a four-page voluntary statement in question and answer form.

The appellant stated that during the early hours of Sunday, March 27, 1977, he saw his former girl friend with another fellow at a “Discotheque”; that he left and went to his sister’s house, where he used the phone to call his girl friend’s apartment; that when he was unable to talk with her on the phone he went to her apartment, tied a rag around a rock, and threw it through a window; and that he then fired a bush, which was on the outside corner of the apartment building, and left. The appellant expressed regret for the fire and the deaths.

After the statement was completed, the appellant and his inquisitor read it, and then made several minor changes at the direction of the appellant.

The witnesses for the Commonwealth who attended the appellant during the time of his arrest stated that at no time did the appellant request a lawyer. However, the appellant stated that he did ask for a lawyer several times, but was refused one and was told that he did not need a lawyer.

On this appeal the appellant argues five alleged errors. First, he contends that the evidence is insufficient to sustain the verdicts of guilty since, allegedly, they are based solely on the appellant’s uncorroborated confession. Counsel for the appellant argues this issue in generalities.

RCr 9.60 provides:

“A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such an offense was committed.”

We have examined the transcript of testimony carefully in an effort to determine whether, apart from the appellant’s testimony at the trial and apart from his confession made to the officer, the evidence is sufficient to establish the corpus delicti and sustain the verdicts. We are of the opinion that it does. The evidence establishes unequivocally that:

1. The appellant and Gwen Hammond had been going together, but at the time of the fire they were not getting along too well.
2. Gwen saw the appellant around her apartment between 3:00 and 3:30 a. m. on the morning of the fire.
3. Jeffrey Hall saw the appellant in close proximity to the apartment building on the morning of Sunday, March 27, 1977, shortly prior to the fire.
4. The apartment house in which Gwen lived burned.
5. The fire started from a bush which was deliberately set afire. The bush was just outside of and within 24 inches of the apartment building.
6. The fire destroyed the building and killed two persons.
7. The fire was not of accidental origin, but was deliberately set.
8. The fire was reported to the fire department at about 3:40 or 3:45 a. m.

The appellant contends that the Commonwealth failed to establish the corpus delicti. In addressing this matter in Stewart v. Commonwealth, Ky., 561 S.W.2d 660 (1977), we said that the prosecution was required to show (1) a death and (2) that the death resulted from the criminal agency of another, thus establishing the corpus delicti, more recently referred to as the “body of the crime.”

Crabtree v. Commonwealth, 260 Ky. 575, 86 S.W.2d 301, 304 (1935), cited by counsel for the appellant, discussed the elements necessary to establish the corpus delicti. We said:

“ * * * We deem it not sufficient for establishing the criminal act of its having been maliciously burned to merely show circumstances attending its burning, which in themselves fail to show a cause therefor. * * * ”

However, therein we stated, “There was no evidence that the appellant or any strangers were about the barn during the day or shortly before its burning was discovered that evening.”

In the case at bar there is the testimony of two witnesses who place the appellant at or in very close proximity to the apartment shortly prior to the fire. Clearly, there is established (1) the burning of the building and deaths from the burning, (2) the fire was caused by having been deliberately set, and (3) the deaths were caused by a criminal act. Counsel for appellant vigorously argues that the only evidence connecting the appellant with the commission of the crimes, other than his confession, is circumstantial. It can hardly be contended by the appellant that he can be found to be the guilty culprit only if he is actually seen igniting the fire. Arsonists don’t work that way. Such arguments fail in the face of Hines v. Commonwealth, Ky., 390 S.W.2d 152 (1965). Circumstantial evidence may be considered by the court when weighing the quality of the evidence to establish the body of the crime. Perry v. Commonwealth, Ky., 514 S.W.2d 202 (1974); Peace v. Commonwealth, Ky., 489 S.W.2d 519 (1973).

The corpus delicti was established beyond cavil. We are of the opinion, even excluding the appellant’s testimony and his confession, that from the remaining evidence as a whole it would not be clearly unreasonable for a jury to find the appellant guilty. Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977).

Next, the appellant argues that his confession was not made voluntarily and was given without the benefit of requested counsel; consequently, it should not have been disclosed to the jury. The criterion by which we have long been guided is that a confession, in order to be admissible, must be free and voluntary; that is, it must not be extracted by any sort of violence or threats. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897).

KRS 422.110 provides:

“Confession obtained by ‘sweating’ not admissible.
(1) No peace officer, or other person having lawful custody of any person charged with crime, shall attempt to obtain information from the accused concerning his connection with or knowledge of crime by plying him with questions, or extort information to be used against him on his trial by threats or other wrongful means, nor shall the person having custody of the accused permit any other person to do so.
(2) A confession obtained by methods prohibited by subsection (1) is not admissible as evidence of guilt in any court. The trial judge shall determine the competency and admissibility of any alleged confession under the provisions of this section from evidence heard by him, independent of and without the hearing of the jury trying the case.”

Although no hearing separate and apart from the trial to determine the voluntariness of the confession was requested by the appellant or given by the court, the trial judge did hear the facts which preceded the confession and which, the appellant argues, brought forth the confession. After considering these facts and viewing the giving of the confession, the court determined that the confession was proper and permitted it to be introduced into evidence and read to the jury.

We must determine whether the findings of the trial court resulting in the admission were clearly erroneous. Hayden v. Commonwealth, Ky., 563 S.W.2d 720 (1978). The trial judge said:

“I am going to rule, I am going to sustain the Commonwealth’s position and I am going to rule that reference to this three page statement be permitted and ruled as competent. The fact of establishing oppression by the time or the length of an examination or the treatment of this statement is not the only criteria, such other elements as confusion and force and bewilderment resulting from excessive would be a better way to look at it and none has been shown to the Court. I think it is a matter of discretion at this point. The competency of the matter as I see it would be confined rather than have this record proliferate into unbounded confusion to the statement that I hold here which will be introduced, the statement that was taken on the 28th of March 1977, overruling the objection of the Defendant.”

Some six or seven hours after the fire the appellant voluntarily accompanied Officer Booher to the courthouse where he was questioned. He was first questioned for about two hours, and later in the same day he was questioned again for a short time until he stated that he didn’t wish to make any further statements at that time. The appellant did agree to take a polygraph examination. The interrogation ceased, and the appellant was kept in jail overnight. The following morning he was taken to Madisonville, Kentucky, for the polygraph test. After three hours of off and on questioning, which included the making of the polygraph test, the appellant voluntarily made the subject question-and-answer confession. The appellant’s feeble effort at showing coercion is demonstrated by the following answer he made in response to a question by his attorney:

“Q. 101. Why did you sign the statement?
A. Due to the fact that I took the polygraph test, the first part and the second part. The questions like every time we get through taking the test you know, the first part of the test, he would go out of the office, go out of his office and go into another office. So every time he up I would get up too also and I would go to the hallway to my coat and get a cigarette and smoke and at the time, you know, he would come back in so I know that when he come back in I knowed that he would have to be consulting with somebody else because the information he have, you know, that I know he would have to know it himself, you know.”

Giving a reasonable interpretation to what the appellant said concerning his coercion, we fail to find that he was overreached in any respect. It does not appear that the action of the trial judge in admitting the confession was erroneous.

The appellant next argues that the trial court erred in permitting the Commonwealth to use a statement which resulted from a previous statement made by the appellant and which was not disclosed to the appellant.

The polygraph test and the questioning of the appellant were all done on a tape recorder. Pursuant to RCr 7.24, the trial judge ordered the Commonwealth to furnish the appellant “Any statement or confession made by the accused and the reports of any physical or mental examination, scientific tests or experiments known to the Commonwealth for the purpose of inspection and copying by the defense,” and “Any books, papers, documents or tangible objects or copies or portions thereof that are in the possession, custody, or control of the Commonwealth for inspection and copying by the defense.”

Subsequent to the interrogation, the appellant made a full confession which, the Commonwealth contends, negated the need to keep the records and the tapes which were used for recording other different interrogations. The appellant complains, and justly so, that he was not furnished with the tapes on which these proceedings were recorded. Counsel for the Commonwealth contends that since the appellant had confessed to the act which resulted in the burning and the deaths, there was no further need for the tapes, so for the sake of economy they were erased and used in other proceedings. The economy of using the same tapes over and over and over does not justify the failure to keep them until the case had been completely litigated, thereby affording the appellant the privilege of using them if he so desired, subject to their competency and relevancy being tested by the trial court. The appellant desired to use the tapes, but could not because they had been erased.

In Lefevers v. Commonwealth, Ky., 558 S.W.2d 585, 590 (1977), we said, “The Commonwealth’s Attorney should have furnished the two statements to counsel for appellant as soon as reasonably possible after he received them.” The interrogation of appellant was subject to proper inquiry and the tapes on which the questions and answers were recorded were likewise the proper subject of inquiry. This court cannot overemphasize the importance of not only retaining such evidence, but of promptly making it available to counsel for the accused when requested and if it is in existence. However, in Gaston v. Commonwealth, Ky., 545 S.W.2d 941 (1977), we said:

“ * * * It should be recognized, however, that there is no principle of law telling a police department what it must or must not do with records of this kind. In fact, it is not compelled to keep them at all. Not until a motion is made under RCr 7.26 does a defendant become entitled to see the witness’s statement, and he can be so entitled only if the statement is still in existence. At that point, and only at that point, the right of the police department to do with it as it will ceases.”

RCr 7.24(1) authorizes the defendant “to inspect and copy or photograph any relevant (a) written or recorded statements or confessions made by the defendant, or copies thereof, that are known by the attorney for the commonwealth to be in the possession, custody or control of the commonwealth, and (b) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, that are known by the attorney for the commonwealth to be in the possession, custody or control of the commonwealth.”

Not having been furnished the tapes, the appellant argues that his confession should not have been used. The tapes, regrettably, were not in existence, consequently, could not have been furnished to appellant. The court did not err in admitting the appellant’s confession.

The appellant further argues that the trial court erred in refusing to order the Commonwealth to disclose the complete contents of the statement which the appellant made on the day of the fire.

The fire took place on March 27, 1977, and the Commonwealth’s Attorney, Honorable R. Lee Steers, Jr., stated that he used a tape recorder for making notes and memo-randa of his investigation and that the same tape recorder was used for recording the interrogation of the appellant. He further stated that in transcribing the recording the first seven pages were of the notes and memoranda which he had made for his own use and thereafter followed the transcript of the interrogation. Appellant was not furnished a transcript of the first seven pages. The appellant cites RCr 7.24(1) and RCr 7.26(2) as authority for his right to see and copy from these seven pages. He does not contend, however, that he was entitled to the notes that the Commonwealth’s Attorney made for his own use during his investigation. The appellant argues that the trial judge should have, but did not examine them in order to determine whether they contained only the privileged entries or whether any of the seven pages contained matters which were properly discoverable. In his brief counsel for appellant states, “The record does not indicate that the trial judge ruled that the defense had all it was entitled to.” Counsel is careful not to say, without equivocation, that the trial judge did not in truth and in fact actually inspect the first seven pages. On the other hand, the Attorney General convincingly argues that the trial judge did examine the seven pages and properly denied the appellant’s request to examine, inspect or copy them.

We are of the opinion that the record reflects that the trial judge did in truth and in fact examine the seven pages. We do not find that he acted erroneously in denying the appellant’s request.

Last, but by no means least, the appellant argues that it was error for the trial court to order his sentences to run consecutively so that the aggregate exceeds the highest sentence that could be imposed for a Class C felony.

The appellant was convicted of arson in the third degree and sentenced to five years in prison. He was also convicted on two counts of manslaughter and sentenced to ten years in prison on each count. The three sentences were ordered to run consecutively, which would result in the appellant’s facing an aggregate period of 25 years in prison.

KRS 532.110(l)(c) provides:

“(1) When multiple sentences of imprisonment are imposed on a defendant for more than one crime, including a crime for which a previous sentence of probation or conditional discharge has been revoked, such multiple sentences shall run concurrently or consecutively as the court shall determine at the time of sentence, except that:
(c) The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.-080 for the highest class of crime for which any of the sentences is imposed.”

The highest class of crime for which sentence was imposed upon the appellant was second-degree manslaughter, a Class C felony (KRS 507.040(2)). KRS 532.080(6)(b) limits the appellant’s sentence to no more than 20 years, instead of the 25 years under which he now labors. Thus, the appellant faces five years of imprisonment more than that to which he could be legally sentenced.

This case is remanded to the Simpson Circuit Court, where the court will sentence the appellant to imprisonment for a period of years not to exceed that provided by law.

All concur except STEPHENSON, J., who concurs in result only.


text:
    STATE of Missouri ex rel. John K. TRAVERS, Judy Svetanics, George Mehan, and Donald West, constituting the Board of Election Commissioners, Relator, v. Ivan Lee HOLT, Jr., Judge of the Circuit Court of the City of St. Louis, Respondent.
    No. 40842.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 11, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.
    Jack L. Koehr, City Counselor, Timothy G. Noble, Assoc. City Counselor, St. Louis, for relator.
    Morton L. Schwartz, St. Louis, for respondent.
   PER CURIAM.

This is an original proceeding in prohibition wherein relator, the Board of Election Commissioners, seeks to prohibit the circuit court from issuing its order dated August 18, 1978. The circuit court ordered that: (1) relator permit an inspection not to exceed three working days of the voting machine counters, the tally sheets, the voter registration cards, and the voter identification certificates of the primary election of August 8, 1978, for the First Congressional District of Missouri by three teams of two members each, to be designated by relator, one member to be from the Republican Party and one member to be from the Democratic Party, all of whom shall be non-residents of the First Congressional District, said members to serve as Deputy Election Commissioners to carry out the inspection and to be compensated by respondents herein (plaintiffs below) at the rate of pay designated by statute; (2) relator also permit Gerald Peckinuk, Lauren Brubaker, and Or-rin Ellis to participate in the inspection on behalf of respondent; (3) relator is temporarily enjoined from taking any further action with regard to any of the above described voting machine counters, tally sheets, voter registration cards, and voter identification certificates; and (4) respondents deposit into the registry of the court $500.00 as security as provided by law, including payment of the special commissioners as provided above. The circuit court further ordered that its order would not become effective until the $500.00 bond is deposited or August 22, 1978 at 2:00 p. m., whichever is later.

The issue in the proceeding is very limited; the question is whether the circuit court had the authority to issue this order. See, e. g., State ex rel Vogel v. Campbell, 505 S.W.2d 54, 58 (Mo. banc 1974); State ex rel. T. J. H. v. Bills, 504 S.W.2d 76 (Mo. banc 1974). We have examined the pleadings, the federal statutes cited by respondent, and our state primary election contest statutes, which constitute a code unto themselves, see State ex rel. Camillo v. Hess, 458 S.W.2d 721 (Mo.App.1970), and as such defines and limits the jurisdiction of the circuit court in election contests. See, e. g., State ex rel. Phillips v. Barton, 300 Mo. 79, 91, 254 S.W. 85, 89 (banc 1923); State ex rel. Craig v. Grimm, 542 S.W .2d 335, 337 (Mo.App.1976). We are convinced that the circuit court has acted in excess of its jurisdiction in issuing the order herein set forth. See Moore v. City of Pacific, 534 S.W.2d 486, 500-01 (Mo.App.1976) (federal constitutional and statutory grounds); State ex rel. Bonzon v. Weinstein, 514 S.W.2d 357, 362-63 (Mo.App.1974) (Missouri election contest statutes).

For this reason the preliminary writ of prohibition is made absolute.

All Judges concur.

      . 28 U.S.C. § 1343 et seq.; 42 U.S.C. § 1983 et seq.

      . § 115.527 et seq. RSMo Supp. 1977 (effective Jan. 1, 1978).


author: CRIST, Judge.

text:
    Dorothy H. STEFACEK, Petitioner-Respondent, v. Eugene M. STEFACEK, Respondent-Appellant.
    No. 39817.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 12, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.

      Thad F. Niemira, Dennis Kay, St. Louis, for respondent-appellant.
    A. Michael Sullivan, Robert J. Albair, Sullivan & Watkins, St. Louis, for petitioner-respondent.
   CRIST, Judge.

Marriage dissolved on the wife’s petition.

Husband appeals, contending: (1) evidence was insufficient to support finding that marriage of parties was irretrievably broken, and (2) error in awarding custody of the children to the wife in the event dissolution of the parties is affirmed. We disagree.

Married in 1957 and separated April 4, 1974, the parties have six children, one of whom was emancipated at the time of the dissolution in October, 1977. Husband denied that the marriage was irretrievably broken under § 452.320(2), RSMo Supp.1975.

Wife had the burden of presenting evidence that one or more of the ultimate facts set out in § 452.320(2)(l)(a-e), RSMo Supp.1975, were present. Of the ultimate facts so enumerated, wife offered evidence as to two: (b) husband behaved in such a way that the wife could not reasonably be expected to live with him, and (e) husband and wife lived separate and apart for a continuous period of at least twenty-four months preceding the filing of wife’s petition.

The trial court found that husband behaved in such a way that the wife could not reasonably be expected to live with him so that the marriage was irretrievably broken and there was no reasonable likelihood that the marriage could be preserved. The court made no finding regarding the twenty-four month separation as set out in § 452.-320(2)(l)(e), RSMo Supp.1975.

Wife testified that she could no longer live with husband because he had left her bedroom and began living separate and apart from her on April 4,1974. There had been no sexual relations between them since he had moved into his own bedroom. He would not give her any spending money. He did not believe she was capable of handling money. He would not pay for the special needs of one or more of the children whereby she had to go to work to do so. He would insist that he have his own way with reference to the upbringing of the children. There was a complete lack of communication between them, for the reason that if she would not agree with him he would become silent, angry and walk away. He was more concerned about religious education than the special needs of the children. He did not want her to have her own key to the house. The relationship between them had been deteriorating for many years, and the environment in the home had been bad. She believed there was no likelihood that the marriage could be preserved.

Husband contradicted much of wife’s testimony. He testified that the marriage could be preserved. Husband cites In re Marriage of Mitchell, 545 S.W.2d 313 (Mo.App.1976) as his sole authority. It is not necessary for us to set out the decisions dealing with the problem presented. We could not improve upon our opinion of Gummels v. Gummels, 561 S.W.2d 442 (Mo. App.1978), which we believe to be determinative. We conclude that we are unable to say there was no substantial evidence to support the finding that wife cannot reasonably be expected to live with husband.

With reference to husband’s contention that custody of the children should have been awarded to him, his brief of this point has preserved nothing for review, for the reason that it fails to cite any authorities and has no page references to the transcript. Rule 84.04(d), (h). However, for the reason that custody of children is involved, we have read the entire transcript, the exhibits, briefs and all cases cited and conclude that: the decree rendered by the trial court with reference to the custody and maintenance of the children was supported by substantial evidence and was not against the weight of the evidence, and that an opinion with reference thereto would have no precedential value. The decree with reference to the custody and maintenance of the children should be affirmed. Rule 84.-16(b). Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

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


author: REINHARD, Judge.

text:
    Rita MILLS, Francis Horack, Albina Hemker and Lee Horack, Appellants, v. Miriam KETTLER and Arthur Kettler, Respondents.
    No. 39486.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 12, 1978.
    Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.

      Cox, Moffitt & Cox, William A. Moffitt, Jr., St. Louis, for appellants.
    Anthony B. Ramirez, Clayton, for respondents.
   REINHARD, Judge.

Plaintiffs Rita Mills, Francis Horack, Al-bina Hemker and Lee Horack filed a will contest action against defendants Miriam A. Kettler and Arthur Kettler, her husband. Defendants’ motion to dismiss with prejudice for failure to state a claim was sustained. Plaintiffs appeal and we affirm.

Plaintiffs were named as beneficiaries in a revocable inter vivos trust established by settlor Manuela Menchaca on October 21, 1975. Upon the death of settlor, her trustees were to transfer the principal and undistributed income free of trust, one-third to defendant Miriam A. Kettler, one-third to plaintiff Rita Mills, and one-third to be divided equally among plaintiffs Francis Horack, Albina Hemeker [sic] and Leo [sic] Horack. Funeral expenses were to be paid and other minor transfers were to be made.

That same day, settlor assigned her interest in the Estate of Harry L. Roth, deceased, to the trustees. On February 10, 1976, settlor exercised the power reserved to her in the trust agreement and revoked the trust. Accordingly, on February 17, 1976, she also revoked the accompanying assignment. That same day, she executed her last will and testament leaving her residuary estate to defendant Miriam A. Kettler, after a small bequest for masses for the repose of her soul. Defendant Arthur Kettler was named executor.

Manuela Menchaca died on July 21, 1976, and her last will and testament was admitted to probate on August 20, 1976. On December 14, 1976, plaintiffs filed their will contest action alleging, in addition to the facts set forth above, that plaintiffs as beneficiaries of the trust are persons interested in the probate of Manuela’s will, that the trust was revoked as a result of undue influence by defendants on Manuela, that the last will and testament is void as a result of undue influence by defendants on testator, and that the will is void because not properly executed.

The sole issue on appeal is whether plaintiffs are persons interested in the probate of the Menchaca will. If plaintiffs are “interested” persons, then defendants’ motion to dismiss was erroneously sustained. If not, plaintiffs were improper parties to bring a will contest action.

Will contests are purely statutory and the provisions of the statute must be strictly met. State ex rel. Cooper v. Cloyd, 461 S.W.2d 833, 836[3] (Mo.banc 1971); State ex rel. Damon v. McQuillin, 246 Mo. 674, 152 S.W. 341, 345 (1912). Since § 473.-083, RSMo. (Supp.1975) provides that a person interested in the probate of the will may initiate an action, clearly a stranger could not institute proceedings.

The interest referred to in the statute must be a direct financial interest such that a person (contestant) would benefit by setting aside a will, or would lose by its establishment. State ex rel. Cooper v. Cloyd, supra at 835; First Presbyterian Church of Monett v. Feist, 397 S.W.2d 728, 733 (Mo.App.1965).

Plaintiffs have no direct financial interest in the probate of the Menchaca will. They suffer no loss by the establishment of the will. This is the situation, whether or not the Menchaca trust was revoked. The inter vivos trust was independent of the will. If the trust had not been revoked, its corpus would have been distributed according to the terms of the trust, regardless of whether Manuela had a will. The execution of a will did not affect plaintiffs’ rights, if any, under the trust. Nor do plaintiffs benefit from setting aside the Menchaca will. If the will were set aside, the estate would pass by the laws governing intestacy to the heirs of Manuela. Plaintiffs make no claim that they are heirs of the deceased. In fact, there were no allegations that plaintiffs were members of any group which the law has found to be interested persons.

Plaintiffs can not litigate in a will contest action the issue of whether the trust was revoked as a result of defendants’ undue influence on settlor, because the sole question in that proceeding is to ascertain the single fact whether a certain paper or papers are or are not the last will and testament of the deceased. State ex rel. O’Connell v. Crandall, 562 S.W.2d 746, 749[3] (Mo.App.1978). For the same reason, a constructive trust can not be impressed upon the assets of Manuela’s estate, as plaintiffs suggest.

For the foregoing reasons, we find that the trial court properly sustained defendants’ motion to dismiss because plaintiffs are not interested persons within § 473.083.

Judgment affirmed.

STEWART, P. J., and STEPHAN, J., concur.

      . The record does not indicate whether she had a prior will.

      . Section 473.083 provides that, “Unless any person interested in the probate of a will appears within six months after the date of the probate or rejection thereof by the probate court, or within six months after the first publication of notice of granting of letters on the estate of the decedent, whichever is later, and, by petition to the circuit court of the county contests the validity of a probated will, or prays to have a will probated which has been rejected by the probate court, then probate or rejection of the will is binding.”