text:
    William Bernard KELLER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39006.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 11, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.

      Louis Gilden, St. Louis, for movant-appel-lant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Daniel F. Lyman, Asst. Attys. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

Defendant William B. Keller has appealed from an order correcting his sentence pursuant to Rule 27.26. Defendant seeks to have his sentence vacated, or alternatively, reduced to two years. We affirm.

Defendant originally pleaded guilty to first degree burglary, sodomy and forcible rape. He was sentenced to three 20-year consecutive terms of imprisonment. He then filed a Rule 27.26 motion alleging he was mentally disturbed at the time of his plea. The motion was denied and the judgment was affirmed on appeal. See Keller v. State, 523 S.W.2d 127 (Mo.App.1975). Two years later defendant filed a second Rule 27.26 motion alleging his plea was induced by his counsel’s promise he would be sentenced to 15 years’ imprisonment, would be free in two years, and that counsel told defendant not to mention the plea bargain. The trial court denied the second motion without an evidentiary hearing on the ground the motion and record showed defendant was not entitled to relief. Defendant appealed. - Some months later, however, counsel for defendant and the state stipulated that the order denying defendant’s second motion be vacated, amended or modified by the court. Defendant withdrew his appeal. The trial court vacated its order and granted defendant an evi-dentiary hearing. The court then corrected defendant’s sentence by reducing it to 15 years’ imprisonment on each count, to run concurrently. Defendant appealed.

Defendant briefs two points: (1) his guilty plea was not voluntary because trial counsel abandoned his defense and caused defendant’s right to a jury trial to be denied, and (2) defendant’s upset condition during the plea invalidated his guilty plea so that his sentence should have been vacated rather than corrected.

The state responds that the issue of the voluntariness of defendant’s plea could have been raised in his first Rule 27.26 motion, and, therefore, should not be considered now. We reject this contention as inconsistent with the stipulation entered by counsel for both parties. The state agreed that the trial court could vacate or amend its original order denying defendant’s Rule 27.26 motion without an evidentiary hearing. In effect, that opened the door to the evidentiary hearing on the issue of volun-tariness.

Defendant’s first point cannot be reviewed, however, for another reason. Defendant alleges his plea was not voluntary because his trial counsel was ineffective by abandoning his defense and by causing defendant’s right to a jury trial to be denied. This issue was not raised in defendant’s second Rule 27.26 motion and was not presented to the trial court. In addition, the evidentiary hearing afforded defendant did not focus on the question of ineffective counsel. The issue will not be considered on appeal. Parton v. State, 545 S.W.2d 338[2] (Mo.App.1976); Harkins v. State, 494 S.W.2d 7[7] (Mo.1973); McLarty v. State, 536 S.W.2d 173 (Mo.App.1976) (where defendant contended in his brief but not in his Rule 27.26 motion that his plea was not voluntary).

To avoid this result, defendant argues that whenever the issue of voluntariness of a plea is raised in a Rule 27.26 motion, the issue of ineffective assistance of counsel is implicitly raised. In posing this argument defendant has inverted the general rule which states that once a plea of guilty has been entered the question of effective assistance of counsel is immaterial except to the extent that counsel’s ineffectiveness affected the issue of voluntariness and understanding. See Bonner v. State, 535 S.W.2d 289[10] (Mo.App.1976); Matthews v. State, 501 S.W.2d 44[7] (Mo.1973). Voluntariness is considered merely as a limit on the issue of counsel’s effectiveness, so that if a guilty plea is voluntary then counsel cannot be charged with not affording effective assistance.

Defendant’s inversion is not the law in Missouri. Guilty pleas may be rendered involuntary for reasons other than ineffective assistance of counsel — for example, pleading while under the influence of drugs. And, in such cases, the issue of counsel’s effectiveness is not considered unless specifically raised in defendant’s Rule 27.26 motion. If defendant’s plea was involuntary as a result of a promise or mistaken belief, correction or vacation of the plea would be proper regardless of whether or not counsel was effective. State ex rel. Reece v. Campbell, 551 S.W.2d 292 (Mo.App.1977). If defendant sought to raise the issue of the effectiveness of counsel, he should have made a separate allegation of this issue, independent from his allegation regarding the voluntariness of his plea, or stated in his Rule 27.26 motion that his plea was involuntary due to ineffective assistance of counsel.

Remaining is defendant’s second contention that the trial court should have vacated rather than corrected his sentence. Our review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j); Merritt v. State, 559 S.W.2d 253[1] (Mo.App.1977). Such findings and conclusions are clearly erroneous only if, after review of the entire record, the court is left with the definite and firm impression that a mistake has been made. The trial court found “sufficient cause to believe movant misunderstood his counsel’s statements concerning the length of the sentence and that he was upset enough at this time to make his pleas involuntary to that extent.” Defendant stated he “broke down” in the courtroom and his mother testified he was sobbing.

Defendant and his mother testified trial counsel told them defendant would receive no more than 15 years’ imprisonment. His mother testified counsel said he had talked with the prosecutor and the judge and they had agreed to the 15-year term. Defendant admitted lying to the court during his plea when asked if he had any understanding regarding his sentence but he stated that trial counsel advised him to answer in the negative to questions concerning any plea bargain. Though trial counsel testified he told defendant his sentence would be 20 years with only 15 years’ actual incarceration, conflict in testimony is to be resolved by the trial court.

The findings, conclusion and judgment of the trial court declaring defendant did not misunderstand counsel’s comments regarding sentence are not clearly erroneous. Furthermore, the transcript of defendant’s guilty plea shows defendant understood the nature of the charges against him, that he was advised of the range of punishment and that he understood he was entitled to the constitutional guaranties attendant to a fair trial. These factors indicate defendant’s plea was voluntarily and knowingly made to the extent of the 15-year sentence which he believed had been promised. See Burgin v. State, 522 S.W.2d 159[2] (Mo.App.1975), (wherein the court in remanding for an evidentiary hearing stated “the defendant is either entitled to the benefit of the promise or he should not be held to his part of the ‘bargain’ and should be permitted to withdraw his plea”); State ex rel. Reece v. Campbell, 551 S.W.2d 292[17] (Mo.App.1977) (wherein the court said “the voluntary nature of defendant’s guilty plea depends upon his understanding of what sentence he was to receive in return for it at the time his plea was entered.”)

Though neither the trial court nor trial counsel advised defendant any promises made to him were not binding on the court, this omission does not mandate that defendant’s plea be vacated rather than corrected. See Mainord v. State, 541 S.W.2d 779 (Mo.App.1976) and Beaver v. State, 552 S.W.2d 36 (Mo.App.1977) wherein this court distinguished Burgin, supra, and affirmed the denial of an evidentiary hearing even though the trial court failed to advise defendants that recommendations were not binding on the court.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.

      . Defendant has not provided this court with the transcript of his guilty plea. Normally, such a failure would preclude review, but the court has taken judicial notice of defendant’s appeal from the denial of his first Rule 27.26 motion. A copy of the transcript is found there.

      . Alternatively, defendant contends his sentence should be reduced to two years’ imprisonment, rather than the 15 years as corrected by the trial court.


source: Caselaw Access Project

author: McMILLIAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Leonard STEWART, Defendant-Appellant.
    No. 39035.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 11, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Richard L. Rodemyer, Asst. Public Defender, St. Louis, for defendant-appellant.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant appeals from judgments of conviction finding him guilty of burglary second degree and stealing, and burglary second degree, and concurrent sentences of ten (10) years imposed thereon.

Inasmuch as the point appellant raises on appeal was not raised in his motion for a new trial, we hold that the error claimed is not preserved for review. Rule 27.20(a), V.A.M.R. and State v. Gomillia, 529 S.W.2d 892 (Mo.App.1975). Recognizing this shortcoming, appellant seeks review under our “plain error” rule. Rule 27.20(c), V.A.M.R. This concession we will grant.

Two separate apartments located at 2301 Montezuma in St. Louis County were forcibly broken and entered: one was a display apartment and the other was occupied by a Mr. Freebersyser. From the Freebersyser apartment stereo equipment, bonds and ten silver dollar coins were taken. In a car seen leaving the scene that matched the description given by a witness, an officer arrested the appellant, and seized from the glove compartment ten silver dollars and from the back seat the stereo components. Not only was appellant identified by a witness as the person that was seen leaving one of the apartments but also a full confession was given by appellant to one of the investigating officers. Appellant neither testified nor offered any evidence in his own behalf.

During the final argument the prosecuting attorney stated, for the purpose of explaining why the stereo components were not produced as evidence, “. . . It would be an undue hardship to dismantle all the equipment when we have such good pictures. And . . . this evidence is not contradicted. Nobody has said that this wasn’t Jim Freebersyser’s equipment.” After an objection by appellant’s counsel that the above argument implied to the jury that appellant had to disprove his guilt, the prosecutor continued: “There has been no evidence presented to indicate that this wasn’t his stereo equipment. There has been no evidence presented to indicate it wasn’t his money. There has been no evidence presented at all to indicate that this defendant was not guilty. . . . ”

Appellant asserts that the argument as made by the prosecutor indirectly referred and alluded to his failure to testify. If the prosecutor’s summation overstepped the permissible bounds of legitimate argument, and was in violation of the Fifth and Fourteenth Amendments of the United States Constitution and also in violation of the Missouri Constitution, Art. I, § 19; § 546.270 RSMol969, Rule 26.08, V.A.M.R., then such statements made by the prosecutor would be “plain error” affecting substantial rights from which we should find that manifest injustice resulted. See State v. Beasley, 404 S.W.2d 689, 690 (Mo.1966).

It is settled in Missouri that for a constitutional violation to arise in this area, and for the “plain error” rule to be invoked, a direct and certain reference to a defendant’s failure to testify must be made. State v. Hutchinson, 458 S.W.2d 553, 555 (Mo.1970) and State v. Johnson, 536 S.W.2d 851, 857 (Mo.App.1976). In addition, comments referring to the fact that the state's testimony has been “uncontradicted” has been held proper as a mere contention relating to the weight of the state’s testimony. State v. Morgan, 444 S.W.2d 490, 493 (Mo.1969). In Morgan, supra, the Missouri Supreme Court held that the prohibition of § 546.270 RSMo1969, and Rule 26.08, V.A.M.R. is against comments that the accused did not testify, and not comments that the accused did not offer any evidence.

Applying these general rules to the situation appellant’s constitutional rights were not violated in the present case. The prosecutor made one reference to the fact that the evidence was “not contradicted” and three references to the fact that there was “no evidence presented” to indicate that the state’s evidence was not true. There was, however, no direct reference to the fact that the accused did not testify in his own behalf. The law is settled in this area, and we will not disturb the cases as they stand presently.

We feel compelled, however, to comment on possible weaknesses in this area which the Missouri Supreme Court may wish to reconsider in the future.

It cannot be disputed that an accused’s right not to testify against himself is a fundamental tenet of our legal system. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1970) and Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1963). Therefore, we believe a strict test should be applied when dealing with possible deprivations in this area.

In State v. Hutchinson, supra, the Missouri Supreme Court articulated a “direct and certain” test to be applied in determining whether a comment referred to the accused’s failure to testify. Under the “direct and certain” test, the only situation which would violate this test would be where the prosecutor stated plainly, “The accused did not testify in his own defense.” We suggest that the scope of this test is too narrow, especially when dealing with a constitutional or fundamental right.

The applicable test should be broadened to include indirect references. In United States v. Mahanna, 461 F.2d 1110 (8th Cir. 1972), the Eighth Circuit held that in determining whether a remark falls within the boundary of a Fifth Amendment prohibition, the test is whether, in the circumstances of the particular case, the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. Id. at 1114. Applying this test to the fact situation in the present case, a jury could “naturally and necessarily” have inferred that the defendant had failed to testify in his own behalf from the prosecutor’s repeated references to the fact that the defendant had offered no evidence to show that he was not guilty.

Although we do not disturb Missouri’s “direct and certain” test, it appears as though a reconsideration by the supreme court may be wise in light of the “naturally and necessarily” test followed by the Eighth Circuit and others.

Judgments affirmed.

CLEMENS, P. J., concurs.

SMITH, J., concurs in result but not in the last five paragraphs of the opinion.

      . Accord, see United States v. Williams, 172 U.S.App.D.C. 290, 293, 521 F.2d 950, 953 (1975); United States v. Sanders, 466 F.2d 673, 674 (9th Cir. 1972) (Per Curiam); Davis v. United States, 357 F.2d 438, 441 (5th Cir.) cert. den. 385 U.S. 927, 87 S.Ct. 284, 17 L.Ed.2d 210 (1966); United States ex rel. D’Ambrosio v. Fay, 349 F.2d 957, 960 (2d Cir.) cert. den. 382 U.S. 921, 86 S.Ct. 301, 15 L.Ed.2d 235 (1965); Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955).


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Bryan Scott HADDIX, Appellant.
    No. KCD 29586.
    Missouri Court of Appeals, Kansas City District.
    May 1, 1978.

      Jerry W. Venters, Asst. Public Defender, Jefferson City, for appellant.
    John D. Ashcroft, Atty. Gen., Carson El-liff, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

An information was filed on March 16, 1977, charging defendant, under the second offender act, with escape on February 12, 1975, from an auxiliary prison (Church Farm) under the control of the Missouri Department of Corrections in which he was lawfully confined. Defendant’s incarceration at the Church Farm auxiliary prison stemmed from a six year sentence for first degree robbery out of Greene County, Missouri. A jury found defendant guilty of the escape charge and the trial court sentenced him to two years imprisonment, said sentence to run consecutively with the prior six year robbery sentence. Defendant timely appealed.

Defendant filed three pre-trial motions and made an extended offer of proof which merit mention because they are inextricably involved with three of the five points raised by defendant on appeal. A motion for “dismissal of counsel and appointment of new counsel”, and a motion and a “renewed” motion “to quash information” comprise the referred to pre-trial motions. The latter two motions were filed, respectively, the day before trial and the morning of trial, and were directed primarily to defendant’s claim that the state’s delay in charging him with the escape offense until approximately one year after he was captured and returned to custody under the original sentence worked a “denial of due process of law and his right to a speedy trial”. Con-junctively, it should be borne in mind that defendant’s escape occurred on February 22, 1975, the Missouri Department of Corrections reobtained physical custody of him on January 22, 1976, from county authorities in Marion County, Indiana, thereafter approximately one year expired before a complaint was filed on January 6, 1977, charging defendant with the escape offense, and defendant stood trial on the charge on April 14, 1977. The offer of proof heretofore referred to arose in a somewhat unorthodox fashion. On the morning of the trial, outside the hearing of the jury and prior to the presentment of any evidence, defense counsel advised the trial court that defendant was going to rely upon “necessity” as a defense to the escape charge in view of threatened homosexual attacks directed towards him by fellow inmates and, accordingly, he intended to present evidence to that effect. The state objected thereto and the trial court, in view of its familiarity with State v. Green, 470 S.W.2d 565 (Mo.bane 1971), advised defense counsel that under Missouri law “necessity” was not recognized as a viable defense to an escape charge and any effort to introduce evidence appertaining thereto would not be countenanced during the trial. The trial court’s admonishment was scrupulously adhered to by defendant throughout the trial while in the presence of the jury. Defendant was, however, permitted to make the following offer of proof outside the presence of the jury. On February 22, 1975, defendant had been lawfully confined at Church Farm for approximately three weeks. Shortly after his transfer there “he was solicited by other inmates for homosexual favors, which he declined”. On.February 22,1975, these other inmates, “whom he is even now fearful of identifying”, threatened “that if he did not submit by that night they would kill him”. The name of a fellow inmate was offered as a proposed witness who would confirm the homosexual advances and threats made upon defendant. It was reputed that Church Farm bore the “general reputation” of being an institution where an informant became a “marked man” if disciplinary action was taken against an inmate who was informed on and the only means of protection was to “lock up the informant for the balance of his sentence”. Computationwise, the balance of defendant’s robbery sentence did not expire until June of 1978. It was a “matter of generally accepted understanding” among personnel of the Missouri Department of Corrections and the community at large in Cole County, Missouri, that the Missouri Department of Corrections was “incapable of fully protecting the inmates and indeed the personnel from the depravations of aggressive inmates, which proof would be corroborated by Warden Donald Wyrick himself, who had so stated in public and stated in the newspaper, in effect”. At the time of the offense defendant was twenty-one years of age, five feet two inches tall, and weighed one hundred and ten pounds. Finally, by reason of the foregoing, “defendant had reason to believe and did believe that he was in immediate danger of death or serious bodily harm, and had reasonable cause to believe and did believe that it was necessary for him to act as he did by leaving the premises of the Auxiliary Prison in order to protect himself from such danger and that had he not been under such threat he would not have left the premises”.

As defendant has not challenged the sufficiency of the evidence to sustain his conviction, a short, perfunctory statement of facts is deemed sufficient. Adverting to the state’s evidence, the jury could have found beyond a reasonable doubt that on February 22, 1975, defendant was lawfully confined at the Church Farm auxiliary prison of the Missouri Department of Corrections by reason of having been convicted and sentenced in Greene County for violation of a felony statute, to-wit, first degree robbery. Further, defendant escaped and absconded from the Church Farm auxiliary prison on February 22, 1975, and remained at large and was not recaptured until January 22, 1976.

The points relied on by defendant on appeal, five in number, are as follows: (1) the trial court erred in summarily precluding defendant’s proffered defense of “necessity” in light of his offer of proof; (2) the trial court erred in sua sponte eliciting production of an exhibit from one of the state’s witnesses to bolster an essential element of the state’s case as doing so deprived defendant of a “fair and impartial trial”; (3) the trial court erred in failing to make a “specific determination” as required by Sec. 556.280, RSMo 1969, that defendant had been convicted of a prior felony, and further erred in failing to hold a hearing outside the presence of the jury to determine the applicability vel non of Sec. 556.280, supra, the second offender act; (4) the trial court erred in not sustaining defendant’s “renewed” motion “to quash information” because the state’s delay in initiating the escape charge against him for almost a year following his apprehension constituted a “denial of due process” and “deprivation of a speedy trial”; and (5) the trial court erred in not sustaining defendant’s motion for “dismissal of counsel and appointment of new counsel” as not doing so “forced . [defendant] to go to trial with counsel not of his choosing in violation of his Sixth Amendment right to assistance of counsel”.

In refusing to entertain the defense of “necessity”, notwithstanding defendant’s offer of proof, the trial court obviously relied on State v. Green, 470 S.W.2d 565 (Mo. banc 1971). The facts in Green, as gleaned from an offer of proof made therein, while similar in many respects to those represented by the offer of proof in the present case, were even more repugnant in other respects than those in the present case. The accused in Green had been attacked and sodomized under threats of death or great bodily harm at least twice before he escaped from the Missouri Department of Corrections. On two occasions the accused in Green feigned suicide and was removed to the hospital where he reported the homosexual assaults and asked to be relocated. Upon being moved to another wing, the accused was told by one authority that he would have to fight it out, submit to the homosexual assaults, or “go over the fence”. On the day of his escape, the accused in Green was approached by a group of inmates and told that they would be at his cell that night and if he refused to submit to their homosexual desires they would either kill or inflict great bodily harm upon him.

In holding that the defense of necessity was unavailable in an escape case, the Supreme Court of Missouri, en banc, in State v. Green, supra, at p. 568, cited and relied on People v. Richards, 269 Cal.App.2d 768, 75 Cal.Rptr. 597, 604 (1969), for a concise definition of the defense of necessity: “ ‘The principle of justification by necessity, if applicable, involves a determination that “that harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.” * * * The compulsion from the harm or evil which the actor seeks to avoid, should be present and impending * * V ” The Supreme Court of Missouri concluded in Green that under the accused’s offer of proof the threats of homosexual abuse and bodily harm directed towards him were neither present, imminent, or impending as he “had several hours in which to consider and report these threats”. 470 S.W.2d at 568. The Supreme Court of Missouri further elaborated on the unavailability of “necessity” as a defense by advancing the following as an additional reason for precluding its recognition: “Defendant’s defense resolves itself into the simple proposition that the conditions of his confinement justified his escape. Generally, conditions of confinement do not justify escape and are not a defense.” 470 S.W.2d at 568. This court is quick to acknowledge that it is bound to follow State v. Green, supra. Mo. Const., Art. V, § 2; and Valentine v. State, 541 S.W.2d 558 (Mo.banc 1976). Accordingly, defendant’s first point is ruled adversely to him. In the event the Supreme Court of Missouri accepts this case on transfer and concludes to revisit State v. Green, supra, the following observations, albeit gratuitous, are respectfully set forth in connection with the availability of “necessity” as a defense in escape cases in other jurisdictions.

When State v. Green, supra, was decided it represented the majority, if not exclusive, point of view respecting escape cases. A silent, unspoken rationale appears to have prevailed at the time that legal recognition of “necessity” as a defense, even though generally urged in the context of threats of death or bodily harm directed toward an inmate for refusing to submit to homosexual advances of fellow inmates, would trigger a virtual flood of attempted escapes by reason of the simple expedient of relying upon spurious claims of homosexual advances as a defense. It was apparently deemed more socially acceptable to place total emphasis on maintaining the integrity of prison security systems than to risk affording even the slightest measure of human dignity to prisoners subjected to loathsome and depraved sexual attacks from fellow prisoners. This raises a serious question of whether an abused prisoner must wait for penological reforms as his only means of relief — which may come too late. To say that conditions of confinement do not justify an escape and that “necessity” must unequivocally go unrecognized as a defense in escape cases, regardless of the loathsome, demeaning and perverse nature of threatened abuses directed towards an escapee, borders on admitting the existence of a wrong for which there is no remedy. It is difficult to placidly accept such an unsatisfactory conclusion. Although a convicted felon forfeits his liberty, he surely does not forfeit all semblance of human dignity and relinquish even the most basic of personal rights to which men in their innate sense of justice feel every man is entitled. The cry of wholesale attempts of escape spurred by fallacious claims of homosexual advances, if “necessity” is recognized as a defense, deprecates the ability of the trier of the fact to separate the truth from the untruth. It is an indictment of the right of trial itself, whether by court or jury-

The barrier of resistance towards “necessity” as a recognized defense in escape cases was pierced by the advent of People v. Harmon, 53 Mich.App. 482, 220 N.W.2d 212 (1974), affirmed 394 Mich. 625, 232 N.W.2d 187 (1975). Denominating the defense as “duress”, the court in Harmon recognized it as a viable defense in escape cases actuated by threats of death or violence to an escapee who refused to permit fellow inmates to take homosexual license with him, if the escapee established that his escape “was necessitated by threatening conduct of another which resulted in defendant harboring a reasonable fear of imminent or immediate death or severe bodily harm”. 220 N.W.2d at 214. The Harmon court carefully pointed out that whether threats of death or serious bodily harm feared by an escapee were “imminent or immediate”, so as to invoke the defense of “duress” or “necessity”, was, in all but the clearest cases, “to be decided by the trier of fact taking into consideration all the surrounding circumstances, including the defendant’s opportunity and ability to avoid the feared harm.” 220 N.W.2d at 214. Stated in simpler terms, the Harmon court appears to have recognized that threats of death or violence to be consummated within a few hours or even a few days against one whose freedom of movement is limited and restricted by incarceration in a penal institution might well meet the test of being “imminent or immediate” even though a different result might be dictated regarding one outside the confines of a penal institution whose freedom of movement, in the context under discussion, is unlimited and unrestricted. The Harmon court placed great reliance on the ability of the trier of fact to sift the truth from the untruth and focused on whether evidence existed from which the trier of fact could find that the escapee reasonably harbored a fear of “imminent or immediate death or serious bodily harm” if he remained in confinement and refused to submit to the debasing demands of fellow inmates.

Harmon was quickly followed in Michigan by People v. Luther, 394 Mich. 619, 232 N.W.2d 184 (1975), involving homosexual demands made upon an escapee, and People v. Hocquard, 64 Mich.App. 331, 236 N.W.2d 72 (1975), involving denial of an escapee’s request for medical care. The court in Hoc-quard held that the defense of necessity in escape cases was tightly circumscribed and inapplicable absent “a prima facie showing of evidence to support each and every one” of five enumerated elements or conditions. People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974), decided in the interim between People v. Harmon, supra, and People v. Hocquard, supra, sanctioned a “limited” defense of “necessity” in escape cases if evidence was presented to support the existence of five “conditions”. The court in Lovercamp departed from People v. Richards, 269 Cal.App.2d 768, 75 Cal.Rptr. 597 (1969), which had disallowed the defense of “necessity” in an escape case, and which was cited and relied upon by the Supreme Court of Missouri in State v. Green supra, on the basis of certain “oblique dicta” contained in Richards. The five “conditions” laid down in Lovercamp, 118 Cal.Rptr. at 115, as requisites for invoking the “limited” defense of “necessity”, are as follows: “(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; (2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory; (3) There is no time or opportunity to resort to the courts; (4) There is no evidence of force or violence used towards prison personnel or other ‘innocent’ persons in the escape; and (5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.”

The five “elements” or “conditions” enunciated by the Michigan Court of Appeals in People v. Hocquard, supra, were, with one exception, identical to those set forth by the California Court of Appeals in People v. Lovercamp, supra. The Michigan Court of Appeals in People v. Hocquard, supra, substituted the following for the first “condition” set out in People v. Lovercamp, supra: “The compulsion must be present, imminent and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough.” 236 N.W.2d at 75.

Although Michigan appears to have retrenched somewhat from its earlier holding in People v. Harmon, supra, by reason of the influence of People v. Lovercamp, supra, a recent Illinois decision takes the opposite tack. In People v. Unger, 66 Ill.2d 333, 5 Ill.Dec. 848, 362 N.E.2d 319 (1977), the Supreme Court of Illinois held that evidence adduced by an escapee that he fled confinement after being assaulted and sexually molested by other inmates, and after receiving an unidentified telephone call threatening him with death for reporting the matter to prison authorities, raised the statutory defense of “necessity”. The Supreme Court of Illinois in Unger, although agreeing that the five “conditions” set forth in People v. Lovercamp (118 Cal.Rptr. 110), supra, were relevant factors in assessing claims of necessity in the sense that their existence or non-existence went to the “weight and credibility” of an escapee’s testimony that his escape was solely motivated by necessity, specifically rejected the notion that availability of the defense of necessity was “expressly conditioned upon the elements set forth in Lovercamp ”. 5 Ill.Dec. at 852, 362 N.E.2d at 323. The Supreme Court of Illinois adopted a more expansive view of the defense of necessity in escape cases and in doing so was obviously influenced by the fact that non-compliance by an escapee with certain “conditions” laid down in Lovercamp (118 Cal.Rptr. 110) was not necessarily inconsistent with a claim that necessity was the sole motivating factor for effecting an escape.

Three other jurisdictions have recently recognized some form of necessity as a defense in escape cases. See: Lewis v. State, 318 So.2d 529 (Fla.App.1975); State v. Boleyn, 328 So.2d 95 (La.1976); and State v. Worley, 265 S.C. 551, 220 S.E.2d 242 (1975).

Defendant’s second point attributes error to the trial court for having sua sponte elicited production of an exhibit from one of the state’s witnesses to bolster an essential element of the state’s case. Its genesis is an unorthodox occurrence which took place during direct examination of one of the state’s witnesses. Harry Lauf, records’ custodian of the Missouri Department of Corrections, identified certain exhibits which were admitted into evidence for the purpose of showing that defendant was lawfully confined in an institution under the control of the Missouri Department of Corrections on the date of his escape. The trial judge apparently harbored some qualms as to whether the exhibits adequately showed that defendant was “housed” at the Church Farm auxiliary prison on the crucial date in question. As a consequence of this nagging doubt in the mind of the trial judge, the following colloquy occurred in the presence of the jury:

“THE COURT: Do you have any document in the file that would indicate where the defendant was housed on any given day?
THE WITNESS [Harry Lauf]: I have another document that states wherein he was reassigned from Church Farm to MSP.
THE COURT: You say you maintain all the records. Is there anything you have that you can go to that would tell this jury where this man was housed?
THE WITNESS: I have the chronological data sheet.
THE COURT: Would you take that out.
THE WITNESS: I have it in my briefcase. I don’t have it with me.
THE COURT: Go get it. I want to take a look at it.
MR. DAWDY [Assistant Prosecuting Attorney]: As to your questions, I believe State’s Exhibit 4 answers.
THE COURT: I assure you State’s Exhibit 4 does not answer it clearly in my mind, and I may put it in as a court exhibit.
MR. McFADDEN [Counsel for defendant]: I would like to make an objection to the Court supplying an essential element of the proof of the case for the state. If the state—
THE COURT: Mr. McFadden, it’s the function of this Court to see that justice is done and I am not going to sit here and see justice not done.
MR. McFADDEN: It’s an adversary proceeding.
THE COURT: I am aware of that. The state is due a fair trial and you are doing the best you can. I want to look at this document. I haven’t read it to the jury. I want to satisfy my own mind.
MR. McFADDEN: I have made an objection.
THE COURT: You move for a mistrial?
MR. McFADDEN: No, because no evidence has gone in. I am objecting to your making the interrogation.
THE COURT: I understand.
MR. McFADDEN: Do you overrule it?
THE COURT: Overruled.
[The document was produced for the Court.]
THE COURT: Thank you. That is all I need. I don't have any further questions of Mr. Lauf.”

The “chronological data sheet” referred to was never offered or admitted into evidence, nor was its contents otherwise made known to the jury.

The first and foremost duty of a trial judge is to both be and appear to be an impartial arbiter. Anything done during the course of a trial which damages that image makes the entire trial suspect. Proof that defendant escaped from a “state institution in which he was lawfully confined” on February 22,1975, the date of his escape, was an essential element of the state’s case. Sec. 557.351, RSMo Supp.1971. See also State v. Croney, 425 S.W.2d 65, 67 (Mo.1968). As previously indicated, the trial court apparently possessed some pangs of doubt, even though misplaced, as to whether the state’s evidence showed that defendant was lawfully confined at Church Farm auxiliary prison on February 22, 1975, the date of his escape. The ensuing colloquy was initiated by the trial judge to allay his doubts concerning this essential element of the state’s case. The strongest, the most immediate, and the most lasting impressions garnered from the colloquy are (1) that the trial judge satisfied himself from his perusal of the “chronological data sheet” that the defendant was lawfully confined at the Church Farm auxiliary prison on the date of his escape; and (2) that the concluding remarks made by the trial judge in the presence of the jury, “[t]hat is all I need. I don’t have any further questions of Mr. Lauf”, particularly in view of the context in which they were uttered, intemperately commented on the sufficiency of the state’s evidence as to an essential element of its case even though the exhibit itself was never made available to the jury, and strongly suggested that defendant’s guilt of the offense for which he was standing trial was a foregone conclusion. At the very least, the conduct and remarks of the trial judge conveyed the appearance of bias in favor of the state. As held in State v. Jones, 197 S.W. 156, 158 (Mo.1917), “[t]he law so jealously guards the rights of a defendant, on trial for his liberty, that a trial judge should avoid any indication of feeling against the prisoner; an indication of his belief in defendant’s guilt might determine the verdict.” Bringing the matter into even sharper focus, as eloquently stated by Judge Learned Hand in United States v. Marzano, 149 F.2d 923, 926 (C.C.A.2d 1945), a trial judge “must not take on the role of a partisan; he must not enter the lists; he must not by his ardor induce the jury to join in a hue and cry against the accused [pjrosecution and judgment are two quite separate functions in the administration of justice; they must not merge.” Whether an accused was afforded a fair and impartial trial, State v. Hill, 518 S.W.2d 682, 685 (Mo.App.1975), is the ultimate test for determining whether a trial judge merely went up to as opposed to going beyond the brink in his conduct of the trial. These are misty words, “a fair and impartial trial”, but they are more than a shibboleth and when firmly ensconced in a system of jurisprudence, as in our own, they profoundly shape the ultimate course of justice in given instances. Scrupulously avoiding any intention of impinging upon or minimizing the right of a trial judge to interrogate witnesses in a proper manner at appropriate times, this court concludes that the complained of conduct of the trial judge in the instant case, all within the presence and hearing of the jury, deprived defendant of that most basic of rights, “a fair and impartial trial”.

Defendant’s third point conjoins two distinct grounds of alleged error — (1) failure on the part of the trial court to make a “specific determination”, as required by Sec. 556.280, RSMo 1969, the second offender act, that defendant had been convicted of a prior felony, and (2) failure on the part of the trial court to hold a hearing outside the presence of the jury to determine the applicability vel non of Sec. 556.280, supra. Having determined that the judgment below must be reversed and the cause remanded for a new trial by reason of the error complained of by defendant in his second point, no useful purpose would be served by writing at length upon and formally disposing of defendant’s third point.

Defendant’s fourth point attacks the allegedly inordinate delay between his apprehension following escape (January 22, 1976) and the filing of formal criminal charges for the escape (January 6, 1977). If persuasive, it would entitle defendant to outright acquittal as opposed to mere reversal and remand for a new trial, and for this reason must be justiciably disposed of and ruled on. Defendant submits that the unexplained delay that occurred between the date he was apprehended and the date formal charges were filed offended his constitutional right of “due process” by depriving him of a “speedy trial” as guaranteed by the Sixth Amendment to the Constitution of the United States.

The “speedy trial” provision of the Sixth Amendment to the Constitution of the United States is applicable to state court proceedings by reason of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Although the Sixth Amendment guarantee of a “speedy trial” does not ordinarily attach until after an indictment or formal charge is filed, it may also be engaged by arrest and confinement to answer a criminal charge. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, 479 (1971). A threefold policy underlies the constitutionally guaranteed right of a speedy trial — (1) prevention of undue and oppressive incarceration prior to trial, (2) minimization of the anxiety and concern accompanying public accusation, and (3) limitation of the possibility of impairing an accused’s ability to defend himself. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); and Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). According to defendant, a composite of the above principles, when overlaid on the facts of this case, convincingly demonstrates that he was denied a “speedy trial” in the constitutional sense. Factually, there is a glaring, fatal breach in defendant’s position. When Missouri authorities picked defendant up in Indiana on January 22, 1976, and returned him to the Missouri Department of Corrections, they did so under authority of his uncompleted term of confinement in connection with his conviction and sentence out of Greene County, Missouri, for first degree robbery. Moreover, defendant was still serving time for his conviction and sentence out of Greene County, Missouri, both on January 6, 1977, the date the complaint charging him with the escape offense was filed, and on April 14, 1977, the date he went to trial on the escape charge. Consequently, defendant cannot be said to have been unduly or oppressively incarcerated prior to trial or subjected to undue anxiety or concern accompanying public accusation with reference to the escape charge. Nor is defendant in any position to complain that the ensuing delay between January 22, 1976, the date he was returned to custody of the Missouri Department of Corrections following his escape, and January 6, 1977, the date a formal complaint was filed charging him with the escape offense, was prejudicial by reason of impairing his defense to the escape charge. During a hearing conducted in connection with defendant’s “renewed” motion “to quash information”, the only claim of prejudice made by defendant in connection with the delay in filing the formal charge against him was that certain witnesses whose testimony was pertinent to his proposed defense of “necessity” were no longer available. Assuming, arguendo, that the complained of delay resulted in the unavailability of certain witnesses who defendant proposed to call with reference to his proposed defense of “necessity”, no prejudice inured to defendant by reason thereof because reliance upon the proposed defense of “necessity” was forestalled by State v. Green, supra. In view of the totality of the circumstances presented, defendant’s claim that the unexplained, inordinate delay in filing formal charges against him violated his constitutionally guaranteed right of a “speedy trial” is not well taken.

Defendant’s final point deals with the trial court’s refusal to sustain his motion for “dismissal of counsel and appointment of new counsel”. Having failed to raise or mention any alleged error attached thereto in his motion for a new trial, defendant’s final point is abortive and preserves nothing for appellate review. Defendant’s request that it be reviewed as “plain error” under Rule 27.20(c) is unaccompanied by any convincing demonstration that a failure to do so will result in “manifest injustice” or work a “miscarriage of justice”. Briefly, defendant was represented by appointed counsel, the Public Defender of Cole County. His sole complaint on appeal is that he was “forced . to go to trial with counsel not of his own choosing in violation of his Sixth Amendment right to assistance of counsel”. An accused’s Sixth Amendment right of assistance of counsel does not mean that he has an absolute right to the service of a particular attorney. State v. Jefferies, 504 S.W.2d 6 (Mo.1974); State v. Williams, 419 S.W.2d 49 (Mo.1967); and State v. Wade, 535 S.W.2d 492 (Mo.App.1976). Defendant makes no mention on appeal of any instance of ineptness or ineffectiveness on the part of present counsel. Nor has he ever contended that he asserted and was denied the right to serve as his own attorney so as to bring himself within the ambit of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Defendant’s fifth point fails to create any avenue for appellate relief.

Judgment reversed and cause remanded for a new trial.

All concur.

      . Ill.Rev.Stat.1971, Ch. 38, par. 7-13 “Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.”

      . See: State v. Farmer, 536 S.W.2d 748 (Mo.App.1976); State v. Clark, 522 S.W.2d 332 (Mo.App.1975); and State v. Pearson, 519 S.W.2d 354 (Mo.App.1975).


author: DROWOTA, Judge.

text:
    Danny WYATT and Margie Wyatt, Appellees, v. WINNEBAGO INDUSTRIES, INC. and Chrysler Corporation, Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 2, 1977.
    Certiorari Denied by Supreme Court April 24, 1978.

      J. G. Lackey, Jr., Malcolm L. McCune, Michael Miller, Nashville, for appellants.
    Harry S. Lester, Michael Mondelli, Nashville, for appellees.
   DROWOTA, Judge.

OPINION

This discretionary interlocutory appeal under T.C.A. § 27-305 is brought by defendants from the denial of their summary judgment motion in this products liability action.

Plaintiffs Danny Wyatt and Margie Wyatt brought this action on March 5,1976, against several defendants in the Third Circuit Court of Davidson County. It was alleged in the complaint that plaintiff Danny Wyatt had been seriously injured on April 18,1975, while attempting to start the Winnebago Motor Home of his friend, Virgil Martin. Since the vehicle would not start and since plaintiff could detect no loose connections on an initial inspection, he had Martin sit at the controls with the ignition off and move the gear selector to “park.” Plaintiff then got under the vehicle and, with jumper cables, connected the battery directly to the starter. This had the effect of bypassing safety switches, which are built into the ignition system to prevent the vehicle from being started by that system while the transmission is in any gear other than neutral or park. The complaint alleged that, although the gear selector indicated that the vehicle was in park, it was in fact in a forward gear. When plaintiff attached the cable to the starter, the vehicle started, moved forward, and ran over him, causing serious injury.

Plaintiff alleged that the gear selector was defective, that it was in that condition when it left defendant. Winnebago Motor Homes, and that the defect rendered the vehicle unreasonably dangerous to users such as plaintiff. Thus, plaintiffs asserted a claim in strict liability in tort against Winnebago, which was alleged to be the manufacturer of the vehicle. In an amended complaint, a similar claim was asserted against defendant Chrysler Corp., Inc., which allegedly made the chassis for the motor home. Plaintiff Danny Wyatt asked $300,000 from defendants for his injuries, and his wife Margie prayed for $50,000 for loss of her husband’s services and other injury allegedly suffered by her.

The answers of defendants Winnebago and Chrysler denied liability and charged, inter alia, that the vehicle had been misused, that plaintiff was guilty of contributory negligence and that he had assumed the risk, and that any defect in the gear selector was not the proximate cause of the injuries. On December 20, 1976, and January 20, 1977, defendants Winnebago and Chrysler, respectively, filed similar motions for summary judgment. In these motions, defendants, elaborated on the grounds asserted in their answers as freeing them from liability. The motions were supported by excerpts from plaintiff Danny Wyatt’s deposition, affidavits containing technical material to illustrate the function of the ignition system and safety switches, and copies of two cases asserted to be closely in point.

The excerpts from plaintiff’s deposition are important, and are heavily relied on by defendants. They reveal that plaintiff understood that he was bypassing the safety switches, and that as a result the vehicle would start whether it was in gear or not, as long as the starter was working. Plaintiff did not know why the vehicle would not start, and his object in connecting the starter directly to the battery was to determine whether or not the starter was defective.

On April 5, 1977, the trial judge filed his memorandum denying defendant Chrysler’s motion for summary judgment. While the court found defendant’s authorities “persuasive” and its argument “convincing,” it found the case inappropriate for a grant of summary judgment “as a substitute for a trial to determine proximate cause.” On April 25, 1977, the court entered an order disallowing the summary judgment motions of defendants Winnebago and Chrysler. In the same order, the court allowed a discretionary appeal to this Court, on the grounds that there is a controlling question of law as to which there is substantial ground for difference of opinion and that appeal would materially advance determination of the case. Defendants Winnebago and Chrysler have perfected such an appeal.

Defendants Winnebago and Chrysler each have made separate assignments of error. Both, however, make the same basic arguments, and we will classify and consider each of these arguments separately. Because defendants’ arguments and defenses, if valid, would relieve them of liability even if the asserted defect in the gear selector were proven, and because defendants have chosen not to controvert the existence of the defect at this summary judgment stage, we must assume the defect’s existence for purposes of this appeal.

The first general argument made by defendants is that the trial court misconstrued the nature of summary judgment. Summary judgment is to be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” T.R.C.P. 56.03. See Phillips v. Pittsburgh Consolidated Coal Co., 541 S.W.2d 411 (Tenn.1976). The court’s role in ruling on the motion is similar to its role in ruling on a motion for a directed verdict, and it must view the pleadings and evidence before it in the light most favorable to the opponent of the motion. Stone v. Hinds, 541 S.W.2d 598 (Tenn.App.1976). The standard quoted above from Rule 56.03 applies each time a motion for summary judgment is made, and it requires a determination to be made on a case-by-case, issue-by-issue basis. If the trial court implied in its memorandum, as defendants argue, that the summary judgment procedure is never a proper substitute for trial in determining the issue of proximate cause, we certainly do not agree. That issue, Jike any other, may be determined on summary judgment if the test of Rule 56 is met with regard to it. We turn now to consider whether or not Rule 56 authorizes a grant of summary judgment on any of the issues raised by defendants in this case.

Defendants have raised several grounds, each of which, they contend, entitles them to summary judgment in this case. Each ground is alleged to negate an element of, or constitute a defense to, plaintiffs’ cause of action in strict tort liability. This theory of recovery in products liability cases really imposes “strict” liability only in the sense that the nature of the defendant’s conduct in dealing with the defective product, that is, whether he acted intentionally, negligently, or innocently, is not important on the issue of his liability. Such a strict liability, a recent but widely accepted development in the law, has been adopted in Tennessee. Olney v. Beaman Bottling Co., 220 Tenn. 459, 418 S.W.2d 430 (1967); Ford Motor Co. v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966). The cause of action has been defined by our Supreme Court, quoting from the Restatement (Second) of Torts, as follows:

“ § 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

Ford Motor Co. v. Eads, 224 Tenn. 473, 457 S.W.2d 28, 30 (1970).

Following the elements of this cause of action in the order established by the quoted passage, we come first to defendants’ contention that they should have been granted summary judgment because the alleged defect in the motor home did not render it “unreasonably dangerous.” In order to recover, a plaintiff must show that the product was “in a defective condition unreasonably dangerous to the user . ” Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 519 (Tenn.1973); Eads, supra; Parker v. Warren, 503 S.W.2d 938, 945 (Tenn.App.1974). Dean Prosser says the following with regard to this requirement:

The prevailing interpretation of “defective” is that the product does not meet the reasonable expectations of the ordinary consumer as to its safety. It has been said that this amounts to saying that if the seller knew of the condition he would be negligent in marketing the product.

W. Prosser, Law of Torts § 99 at 659-60 (4th ed. 1971) (citations omitted). In the instant case, we cannot say as a matter of law that a Winnebago Motor Home whose gear selector shows the vehicle to be in a gear other than that in which it actually is does not come within this definition of an unreasonably dangerous defective product.

Defendant Winnebago cites Orfield v. International Harvester Co., 415 F.Supp. 404 (E.D.Tenn.1975), which adopts under Tennessee law comments from Restatement (Second) § 402A saying that the product’s dangerous condition must be one “not contemplated” by the ultimate user. That case is affirmed, and its principle well explained, in Orfield v. International Harvester Co., 535 F.2d 959 (6th Cir. 1976), and we will not expound on it further. It is enough to say that, on the record before us in the instant summary judgment proceeding, it is not undisputed that plaintiff contemplated the alleged defect in the gear selector as a possible cause of the motor home’s problem at the time of the accident. Defendant Winnebago relies heavily on the following excerpt from plaintiff’s deposition:

Now Virgil before I start this thing you get up in it, and you put this thing in park, the handbrake on, and make damned sure it doesn’t run over me, because I’m going to start it; if that starter is not burned out I’m going to start this damned thing.

We do not read this as establishing that plaintiff contemplated the defect in the gear selector. On the contrary, his instruction to put the vehicle in “park” is some indication that plaintiff assumed the selector to be working properly. Further, defendant overlooks other portions of the deposition, especially pages 27-28, in which plaintiff seems to say he did not contemplate the defective selector at the time, although in retrospect he could see that that could have caused the problem in starting the vehicle. The record before us supports the conclusion that plaintiff knew that his method of starting the vehicle would start it even if it was in gear, and that had he contemplated the defective gear selector he also would necessarily have contemplated the possibility of the accident which in fact occurred. It does not, however, support the conclusion that he contemplated the defective selector. At most, a controverted issue of fact is presented on that question. Again, then, we are unable to conclude as a matter of law that the motor home was not unreasonably dangerous within the meaning of Tennessee law. It is a point on which reasonable minds could clearly differ, at least on the record that has been developed to this point in the case. It follows that defendants were not “entitled to a judgment as a matter of law” under Rule 56.03 on the issue of the defective and unreasonably dangerous condition of the motor home.

Next, defendants urge that the trial court erred in failing to grant them summary judgment on the ground that any defect in the motor home’s gear selector was not the proximate cause of plaintiffs’ injuries. Proximate cause, of course, is a concept that was developed in the law of negligence. See Prosser, supra, §§ 41-45. Its first requirement is that the defendant’s act or, in this products liability case, the defect in the product, be a cause in fact of the injury. See Prosser, supra, § 41. This means simply that the circumstances must be such that the injury would not have occurred but for the defect. Causation in fact is seldom a problem, and in the instant case it would be absurd to say that the only reasonable conclusion is that the accident would have occurred even had no defect existed.

Proximate cause, however, involves much more than causation in fact. It is really a concept that attempts to define, by means of many factors, when a defendant’s liability will be limited “even where the fact of causation is clearly established.” Prosser, supra, § 42 at 244. The issue of proximate cause is one to be decided “upon mixed considerations of logic, common sense, justice, policy and precedent.” Mullins v. Seaboard Coastline Railway Co., 517 S.W.2d 198, 201 (Tenn.App.1974); Carney v. Goodman, 38 Tenn.App. 55, 61, 270 S.W.2d 572, 575 (1954). Many “tests” have been propounded to determine when a cause is “proximate,” Prosser, supra, §§ 42-43, and several have been stated in Tennessee cases. In Tennessee Trailways, Inc. v. Ervin, 222 Tenn. 523, 438 S.W.2d 733 (1969), for example, our Supreme Court cited older Tennessee authority in support of the following definition, which appears to confuse proximate cause with its simpler component part, causation in fact:

In Tennessee, proximate cause has been described as that act or omission which immediately causes or fails to prevent the injury; an act or omission occurring or concurring with another which, if it had not happened, the injury would not have been inflicted.

222 Tenn. at 528, 438 S.W.2d at 735. Other cases characterize an act as proximate cause if it is a “substantial factor” in bringing about the injury. Lancaster v. Montesi, 216 Tenn. 50, 390 S.W.2d 217 (1965); Carney, supra. Further formulations and cases supporting them may be found in 15 Tennessee Digest, Negligence § 56 et seq. Some recent cases, particularly those involving the question of whether an “intervening cause” will relieve the defendant of liability, have employed the test of whether the defendant should reasonably have foreseen the injury. Eads, supra; Ray Carter, Inc. v. Edwards, 222 Tenn. 465, 436 S.W.2d 864 (1969); Lancaster, supra. The defendant need not be able to foresee the exact manner of the injury’s occurrence, but only its general nature. Shell Oil Co. v. Blanks, 46 Tenn.App. 539, 330 S.W.2d 569 (1959); Prosser, supra, § 43 at 268-69. It appears that the foreseeability concept is the one with the most widespread acceptance as a “convenient formula” for disposing of the proximate cause issue. Prosser, supra, § 43 at 267.

Enough has been said to indicate the substantive nature of the proximate cause problem. Procedurally, the issue is one for the jury to decide, unless the uncontroverted facts and the inferences to be drawn from them make it so clear that all reasonable men must agree on the outcome. Frady v. Smith, 519 S.W.2d 584 (Tenn.1974); Kroger Co. v. Giem, 215 Tenn. 459, 387 S.W.2d 620 (1964); Bradshaw v. Holt, 200 Tenn. 249, 292 S.W.2d 30 (1956); Loftis v. Finch, 491 S.W.2d 370 (Tenn.App.1972); Spain v. Livingston, 59 Tenn.App. 346, 440 S.W.2d 805 (1968). In the instant case, regardless of which “formula” or combination of formulae is employed, it is not clear that reasonable minds could not differ on whether plaintiffs’ injuries were proximately caused by the defective gear selector in the motor home.. On the record before us, for example, we do not think a conclusion that plaintiff was injured in reliance on the defective indicator and that that reliance was foreseeable, or that the defect was a substantial factor in causing the injury, would be wholly beyond the limits of reasonableness. Thus, defendants were not entitled to summary judgment on the issue of proximate cause.

The third ground on which defendants argue that they were entitled to summary judgment raises an issue closely related to proximate cause in the strict liability theory. It concerns the rule that a defendant will not be held liable for injury occurring in the course of an abnormal use of the product which he could not reasonably foresee. Ellithorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn.1973); Prosser, supra, § 102. Defendants, citing Eads, supra, argue that plaintiff’s method of starting the motor home by connecting the starter directly to the battery constituted an unforeseeable misuse of the vehicle as a matter of law, but we cannot agree. That the Eads case is not controlling here is explained below. Neither the abnormality of plaintiff’s use of the vehicle nor its unforeseea-bility is so clear that reasonable minds could not differ, and defendants were properly denied summary judgment on this ground.

Defendants’ final major argument in favor of their right to summary judgment is that plaintiff assumed the risk. Assumption of the risk is the only form of contributory negligence giving rise to a defense to strict liability in Tennessee, and in order to assume the risk in such a case, the plaintiff must “voluntarily and unreasonably encounter a known danger.” Eili-thorpe, supra, at 521. We have already pointed out that the record before us at this stage does not support the conclusion that plaintiff had in mind the possibility of a defective gear selector when he started the vehicle and was injured. Thus, we can hardly say that it is so clear that plaintiff voluntarily and unreasonably encountered a known danger that reasonable minds could not differ on the point. Accordingly, defendants were not entitled to summary judgment on the ground that plaintiff assumed the risk.

Because it has been heavily relied on by both defendants, we will briefly discuss Ford Motor Co. v. Eads, 224 Tenn. 473, 457 S.W.2d 28 (1970). While that case involved the “hot-wiring” of a tractor so as to bypass the safety switch and allow the vehicle to be started in gear, we think it differs materially from the instant case. First of all, the defect in the vehicle in Eads was in the starter itself and it did not have the effect of indicating to the operator that the vehicle was in a gear other than the one in which it actually was. Further, unlike in the instant case, the Court in Eads found that, prior to the “hot-wiring,” the defect rendered the vehicle unstartable in any gear. This led the Court to the important conclusion that

. all reasonable men must agree that, instead of being a defective tractor and unreasonably dangerous, this defective tractor could not be started, and was dangerous to no one in its inert condition.

224 Tenn. at 481, 457 S.W.2d at 31. The plaintiff in Eads was not misled by the defect into thinking that the vehicle was in neutral when it was actually in a forward gear, but apparently formed this erroneous belief after moving the gearshift lever with his hand. We think these differences in circumstances explain and justify the difference between the holding of Eads and our holding in the instant case on the issue of whether the vehicle in each case was defective and unreasonably dangerous.

It is the conclusion that the vehicle was not unreasonably dangerous on which Eads seems to rest. But even if we consider the issue of proximate cause, we find that Eads differs significantly from the instant case. In Eads plaintiff’s brother had previously “hot-wired” the defective tractor without plaintiffs knowledge, so that plaintiff’s act of starting the tractor immediately before it injured him was not causally related to the defect. In the instant case, the alleged defect not only caused plaintiff both to “hot-wire” the vehicle and to start it by this method immediately before his injury, but could possibly and not unreasonably be found to have misled plaintiff into lying under the vehicle at the time by indicating that the vehicle was in park when it was actually in a forward gear. Further, we do not read Eads as holding that “hot-wiring” is unforeseeable as a matter of law under all circumstances so that no antecedent event can ever be held the proximate cause of an injury in which it is involved. Rather, proximate cause was found lacking as a matter of law on the facts of Eads as the Court there saw them. In the instant case, as we have already explained, we do not find that the facts in the record at this stage present such a clear case of absence of proximate cause that reasonable men could not disagree on the issue.

Similarly, it is urged by defendants that Eads stands for the proposition that “hot-wiring” constitutes misuse of a vehicle as a matter of law. We find no reference in Eads, however, to the issue of misuse of the product, and we do not think that any such holding was intended. The Court in Eads found the “hot-wiring” and subsequent injury unforeseeable under the circumstances of that case, but did not purport to lay down a rule of law applicable in every case on the foreseeability of “hot-wiring” with regard either to misuse or to proximate cause.

Finally, we- note that defendants also rely heavily on the recent Georgia case of McNeely v. Harrison, 138 Ga.App. 310, 226 S.E.2d 112 (1976), on the issue of proximate cause. The facts of that case admittedly differ in no material respect from those in the instant case. With all due respect, however, we cannot agree with the conclusion of the Court in that case that proximate cause was lacking as a matter of law, and we are bound by neither its reasoning nor its holding. We simply cannot accept the Georgia court’s conclusion that “[t]he defect . did not cause the ear to start and lunge forward against the plaintiff.” 226 S.E.2d at 114. While neither the defect in McNeely nor that in the instant case of itself directly caused the vehicle to start on the particular occasion of the accident, it certainly was a causative factor in each case in the vehicle’s moving forward. This is because the defect caused the operator to think that when the gear indicator was in “park,” the vehicle was safely in park gear. The operator in each case relied on this erroneous impression and moved the lever to the “park” position before the vehicle was started. In short, we do not agree with McNeely, and we choose not to follow it.

Since we have found that none of the grounds asserted by defendants entitles them to a judgment as a matter of law at this point, it follows that the trial court was correct in denying the motions for summary judgment. In affirming his decision, we emphasize that this opinion is intended not as a judgment of the strength or weakness of the merits of plaintiffs’ case, but as an application of Rule 56.03 and other legal standards to these summary judgment motions.

Affirmed.

SHRIVER, P. J., and TODD, J., concur.


author: NEARN, Judge.

text:
    MEMPHIS STATE UNIVERSITY, Appellee, v. Grady AGEE, Executor of the Estate of Redford A. Tilson, William G. Tilson, Carol Ann Tilson Schultz, Sally Tilson, Robert Tilson, and Christopher Tilson, Appellants.
    Court of Appeals of Tennessee, Western Section.
    Dec. 9, 1977.
    Certiorari Denied by Supreme Court May 1, 1978.

      Ernest G. Kelly, Jr., Memphis, for appellants.
    Brooks McLemore, Jr., Atty. Gen., Donald L. Corlew, Asst. Atty. Gen., Nashville, for appellee.
   NEARN, Judge.

This suit is for declaratory judgment.

The question is: Whether, under the circumstances of this case, a devise of personal property located in Tennessee by the decedent, a Mississippi domiciliary at the time of his death, is governed by Tennessee law; and if so, can the Mississippi mortmain statute be interposed to defeat the intent of the testator?

The agreed facts as encapsulated by this Court are that Redford A. Tilson died on June 29,1972, a resident of Jackson County, Mississippi, leaving some real and personal property in Tennessee. His last will and testament was a holograph and was written by the deceased at a time in 1968 when he was a resident of Tennessee. The residuary clause thereof furnishes the impetus for this litigation. That clause provides for the residue to go to Memphis State University. We are here concerned only with the residue of personalty located in Tennessee. The will was probated in Mississippi and ancillary probate had in this state. In its essentials, and insofar as it concerns the personalty here involved, the Mississippi mortmain statute provides that a deceased leaving a spouse or issue may not bequeath more than one third of the estate to any charitable, religious, educational, or civil institution to the exclusion of such spouse or child. Tilson left more than one third of his estate to Memphis State University. The residuary clause under consideration violates the Mississippi statute and is void under Mississippi law. Tilson’s children are all residents of the State of Tennessee.

The Trial Judge recognized the general principle that title to personal property follows the owner and that the disposition of such is governed by the law of the domicile of the testator regardless of the actual location of such personalty. However, the Trial Judge carved out an exception to the general rule. He held that where the testator was a resident of this state at the time of the execution of the will, and where the deceased unquestionably intended the bequest to pass to a Tennessee publicly owned educational institution, and would so pass but for the Mississippi mortmain statute, it would be against the public policy of the State of Tennessee to enforce the Mississippi mortmain statute. The Trial Judge felt buttressed in this holding because, clearly, the Mississippi mortmain statute never entered the testator’s mind at the time of the execution of the holograph and because the polestar of the Tennessee law of wills is the effectuation of the intent of the testator.

We believe the Trial Judge erred in holding that in this case the effectuation of applicable Mississippi law was contrary to the public policy of this state.

Of course, foreign laws, when applicable, will be enforced by this state. However, foreign laws which are contrary to the announced public policy of this state will not be enforced. Paper Products Co. v. Doggrell (1953) 195 Tenn. 581, 261 S.W.2d 127.

The public policy of a state may be found in its Constitution, legislative acts, or Supreme Court pronouncements based upon either or both of the former or the common law.

The law and public policy of this state is that the law of the domicile will govern the disposition of personalty or movables. Such was the common law before there was a Tennessee. The Tennessee Courts have so recognized that fact in published opinions at least since 1867. See Williams v. Saunders, et als. (1867) 45 Tenn. (5 Coldwell) 60; see also Kirkland v. Calhoun (1922) 147 Tenn. 388, 248 S.W. 302; Pritchard on Wills, Third Edition § 54.

However, neither the common law or anything else is carved in immutable stone and exceptions to the rule are sometimes necessary for the sake of justice.

We simply believe that the exception itself, carved out by the Trial Judge in this case, is contrary to the public policy of this state.

If we look at the obverse side of the Trial Judge’s holding, we find that the effect of the creation of the “exception” is to favor the state over its citizens. All of the children of Tilson are residents of this state and, in this case, but for a created “exception” to our public policy and laws, they would receive the personalty. The state ought not be favored over its citizens. Additionally, we see nothing in principle in the Mississippi mortmain statute that violates the public policy or legislatively announced principles of this state. This state has enacted numerous statutes designed to prevent a deceased from effectively leaving the widow-widower and/or children out of a will. We have or have had statutes which operate to invalidate the testator’s announced intent so as to protect posthumous or pretermitted children, dower and curtesy of a spouse, dissent and homestead rights, rights of family to insurance proceeds as against creditors. T.C.A. §§ 31-115, 32-303, 304; 31-601 to 613 [repealed]; 31-614 to 621; 31-111; 56-1108 to 1110.

The only distinction we see in the mort-main statute and the general laws of this state is one of degree. Therefore, we must conclude that the Mississippi mortmain statute is not repugnant to our public policy-

According to complainant’s prayer, we have determined the rights of the parties under the law of Tennessee and the cause is remanded to the probate court for distribution of the assets in accordance to the view herein.

Costs are adjudged against appellee.

Honorable William H. Inman, by designation of the Supreme Court of Tennessee, took part in the hearing of this appeal in the absence of Judge Paul R. Summers.

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

MATHERNE, J., and INMAN, Special Judge, concur.

      . See Mississippi Code Annotated 91-5-31.


author: DAUGHTREY, Judge. GALBREATH, Judge,

text:
    Gregory P. MATHIS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Sept. 21, 1977.

      Paul W. Sorrick, Jr., Chattanooga, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Stanley J. Lanzo, Asst. Dist. Atty. Gen., Chattanooga, for appellee.
   OPINION

DAUGHTREY, Judge.

Following a bench trial, the defendant-appellant was found guilty of carrying a weapon with the intent to go armed (T.C.A. § 39-4901) and possession of a citizens band radio from which the serial number had been altered or removed (T.C.A. § 39-4252). The trial judge imposed two concurrent sentences of eleven months and twenty-nine days.

On appeal the defendant challenges (1) the validity of his arrest, (2) the admissibility of certain evidence seized from the trunk of his automobile, and (3) the overall sufficiency of the evidence to support the weapons conviction. We affirm both convictions.

At approximately 3:00 A.M. on June 6, 1976, two police officers went to a Chattanooga Holiday Inn in response to a motel customer’s complaint that a C.B. radio had been stolen from his automobile during the night. The officers circled the building and noticed a car bearing local license tags parked in the back parking lot, with one person sitting in the back seat. As the officers approached the car, a second person rose up into view in the front seat and began to drive the car out of the parking lot.

The officers stopped the car at the exit to the parking lot. As they did so, the person in the back seat leaned down “as if to hide something.” After voicing a warning to his partner that the man in the back seat “had something,” one of the officers ordered the two occupants out of the car and made a cursory visual inspection of the vehicle from outside the automobile. He saw on the back floorboard two loaded .22 pistols and a coathanger “bent in the manner commonly used to unlock automobiles.” The officers arrested the defendant, who had been driving the car, and his companion, charging both with carrying a dangerous weapon with the intent to go armed.

At this point the officers also interviewed the complaining party and inspected his automobile in the motel parking lot. The vehicle bore scratches where it had been broken into, and a C.B. radio had been removed from it. Armed with this knowledge, the officers then made a search of the trunk of the defendant’s automobile and found a portable television and three C.B. radios. The serial number had been removed from one of the radios, but as it turned out, the unit stolen from the motel customer whose car had just been burglarized was not among those found in the defendant’s car.

At the time of his arrest, the defendant told conflicting versions of how he happened to be at the Holiday Inn with the two pistols and the other items in his car. He changed his story a third time when he testified at trial. He now attacks the validity of his arrest on the weapons charge and the sufficiency of the evidence to support that conviction. We think the trier of fact was justified under all the circumstances in concluding that the defendant was in possession of the weapons found in his automobile. Marie v. State, 204 Tenn. 197, 319 S.W.2d 86 (1958); Peters v. State, 521 S.W.2d 233 (Tenn.Cr.App.1974). Certainly we are unable to say that the evidence preponderates against the verdict of the trial judge, as required in order to reverse on the basis of the evidence. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). It follows also that the arrest was valid, because the offense was committed in the presence of the officers. T.C.A. § 40-803(1).

The defendant’s attack on the search and seizure must also fail. There can be little doubt that the officers’ initial stop of the defendant’s automobile was based on well-founded suspicion. The existence of a theft complaint, the presence of a local automobile in the motel parking lot at a late hour, and the suspicious activities of the occupants of the vehicle combined to provide the officers with a reasonable basis to make the initial investigative stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1971); State v. McLennan, 503 S.W.2d 909 (Tenn.1973); Hawkins v. State, 543 S.W.2d 606 (Tenn.Cr.App.1976). When they then found the occupants armed with loaded weapons and in possession of a car burglary tool, near the time and place of an actual automobile burglary and theft, the officers had probable cause to believe that the two men were involved in the commission of that burglary and theft. The existence of probable cause, together with the exigency created by the mobility of the automobile, made the warrantless search of the trunk of the automobile reasonable for constitutional purposes. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). This is true, of course, even though the subsequent search did not turn up the radio unit for which the officers were searching. Hill v. State, 516 S.W.2d 361 (Tenn.Cr.App.1974).

In Chambers the United States Supreme Court discussed the warrant requirement of the Fourth Amendment, and once again reiterated the proposition that “automobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.” 399 U.S. at 48, 90 S.Ct. at 1979. The Court said further:

Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

Id. at 51-2, 90 S.Ct. at 1981. The distinction drawn in Chambers and in earlier decisions between warrantless searches of automobiles and warrantless searches of houses and offices has been maintained in post-Chambers cases. See, e.g., Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 45 L.Ed.2d 1000 (1976).

We recognize that when they interpret state constitutional provisions, state courts may take a more protective view of the rights to be afforded a criminal defendant than that mandated by federal constitutional standards. Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). However, in the area of automobile searches the Tennessee Supreme Court has apparently declined to do so, relying instead on the recognized dimensions of existing federal constitutional interpretation. See, e.g., Fuqua v. Armour, 543 S.W.2d 64 (Tenn.1976); State v. Hughes, 544 S.W.2d 99 (Tenn.1976). We therefore conclude that the warrantless search in this instance was constitutionally reasonable under the Chambers rationale, and that the trial judge committed no error concerning the admissibility of the items seized from the defendant’s automobile.

The judgment of the trial court is affirmed.

GALBREATH, J., and SAM L. LEWIS, Special Judge, concur.

GALBREATH, Judge,

dissenting.

With all due respect to the position of the majority to the effect that the search in this case falls under the exception to the Fourth Amendment requirement of a warrant discussed in Chambers v. Maroney, supra, I believe such a holding would unduly extend a rather questionable procedure. Chambers stood mainly for the proposition that if the right to search incident to a lawful arrest existed at the time the occupants of an automobile are taken into custody, those occupants have nothing to constitutionally complain about if the warrantless search does not take place contemporaneous with the arrest but is delayed until after the car is impounded and removed from the scene of the arrest. The right to search without a warrant should not, it seems to me, extend further than the necessity attending the arrest itself. An arrest for murder should, if necessary to an investigation of the crime, be accompanied by a search for the murder weapon. An arrest for robbery would ordinarily, as in Chambers, justify a search for the fruits of that crime.

In this case the arrest was for carrying a pistol with the intent to go armed. Any search to secure evidence of the commission of this offense was completely unnecessary since the inadvertent finding of the pistols preceded the arrest. I am of the old school that believes when there is ample opportunity to seek a search warrant, it should be sought. The mere suspicion (proved groundless, by the way) that the defendants had just committed a theft at the motel did not rise to the level of the positive information the officers in Chambers had that a robbery had been committed by described suspects in a rather unique appearing “light blue compact station wagon.”

The intrusive effect of the Chambers rule has, in my opinion, seriously infringed upon the right of privacy our automotive populace formerly took for granted. I do not favor extending that rule.

I, therefore, must respectfully dissent.


author: RUSSELL, Judge.

text:
    Kenneth Ray COUCH, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 17, 1978.
    Certiorari Denied by Supreme Court May 22, 1978.

      William H. Ortwein and Robert J. Bat-son, Jr., Chattanooga, for appellant.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Larry Young, Asst. Dist. Atty. Gen., Chattanooga, for appellee.
   OPINION

RUSSELL, Judge.

Kenneth Ray Couch appeals his forcible rape and armed robbery convictions. Concurrent penitentiary sentences of one hundred years and ten years respectively were fixed.

No question is raised as to the legal sufficiency of the convicting evidence. The victim testified that Couch broke into her apartment after her husband had left for work, and by threatening her and her two-year-old son with a knife forced her to submit to two acts of sexual intercourse and two episodes of oral crimes against nature. He thereafter robbed her of three watches and sixty dollars in currency.

Couch testified and admitted being with the complainant on this occasion, but contended that a Mr. Nixon took him to the woman’s house, stating that the woman’s husband was sterile and that she wished to have a baby. He testified that, while the complainant tried to seduce him, that he did not have intercourse with her. He stated that she gave him the watches to pawn for her and the money was a present.

Obviously, the jury rejected the incredible story. The victim sounded the alarm by telephone as soon as Couch left, and he was arrested by a police officer as he attempted to flee the immediate neighborhood of the crime. There was substantial other incriminating evidence, including an admission to having had sexual intercourse with the complainant.

The first assignment of error complains of the fact that Couch did not receive a preliminary hearing. He was arrested (without a warrant) on July 23, 1975, and an arrest warrant apparently issued the following day. A request for a preliminary hearing was made and such a hearing was scheduled. However, before it could be held Couch attempted to kill himself, making it impossible to proceed as scheduled. Whereupon, the State took the case directly to the Grand Jury and on July 30, 1975, Couch was indicted. The following day the pending warrants were dismissed.

No attempt was made to obtain the dismissal of the indictments until January 19, 1976, (roughly six months later) when a motion to dismiss same, predicated upon the absence of a preliminary hearing, was filed. The trial judge overruled the motion, without setting out his reasons. We conclude that the motion was probably overruled because the denial of a preliminary hearing was the fault of Couch, not the State; and because the motion to dismiss was not timely. (T.C.A. § 40-1131 provides, in pertinent part: “Provided, however, that no such motion for abatement shall be granted after the expiration of thirty (30) days from the date of the accused’s arrest”.) We hold that this assignment of error is without merit.

It is next assigned as error that Couch should have been judicially committed as mentally unfit to stand trial, under the provisions of T.C.A. § 33-708. Such a hearing was held, and Couch was found to be competent to stand trial. The court’s ruling was correct.

The next assignment of error grows out of Couch’s pre-trial motion for State funds to have certain scientific tests performed. The tests had to do with the identity of the defendant’s fingerprints found at the scene of the crime and the fact that a piece of paper found in the defendant’s car had been torn from a larger piece of paper at the victim’s home.

It is a sufficient answer in this case to say that since the defendant admitted being the man involved with the complainant, and so testified, that such tests would have availed nothing. Furthermore, our Supreme Court has held that an indigent defendant has no constitutional right to the provision of expert witnesses at State expense. Graham v. State, 547 S.W.2d 531 (Tenn.1977).

It is next contended that all evidence flowing from Couch’s arrest should have been suppressed, on the predicate that the arrest was illegal. We hold to the contrary. The arresting officer was on patrol in the crime scene area when he received a broadcast concerning the rape. He saw the defendant running down a hill approximately one block from the scene. When the defendant saw the police car he started running in a different direction, got into a car and drove away at a high rate of speed. As the chase continued a description of the rapist fitting Couch was broadcast over the police radio. Certainly the arrest was legal, based upon probable cause.

Complaint is made that evidence of another offense was introduced. The complainant was permitted to testify as to a conversation with Couch during his attacks upon her, a portion of which had reference to the rape of another girl. Couch did not admit the other rape, but asked this victim if she knew about it, etc. Considering Couch’s testimony that he went to the complainant’s house to substitute for her husband, etc., it was germane to the court’s inquiry to hear testimony as to everything that was said that would shed light upon the state of mind of the parties. The conversation about “the other girl that was raped” was probative on the issue of what happened in this instance, and was properly admitted.

The appellant contends that the indictment was amended without his agreement. However, the record reflects that the amendment was “with the consent of the defendant and his attorney”. The amendment changed the date of the offense from June 23rd to July 23rd. The assignment is overruled.

Finally, error is assigned upon the State’s closing jury argument. It is said that the argument was “commenting on the future and/or making references to the parole board and its decisions”. All that was said was that the State wanted a sentence set that was longer than Couch would be expected to live. This was not error.

We have carefully reviewed this record, and find that the appellant is patently guilty of a horrendous crime. He has received a fair and legal trial. It is manifestly necessary to the protection of society that he be incarcerated as sentenced. We affirm the judgments of the trial court.

DAUGHTREY and BYERS, JJ., concur.