author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Clint ROBERSON, Appellant.
    No. 28831.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.

      Lillie Knight, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., David L. Baylard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by a jury of two counts of robbery, first degree, by means of a dangerous and deadly weapon. §§ 560.-120, 560.135, RSMo 1969. Appellant questions whether the evidence is sufficient to prove defendant a perpetrator of the robberies; whether the State was guilty of suppression of material evidence; whether the State’s attorney, in cross-examination of defendant, accused him of lying under oath; whether the trial court, by its remarks, was guilty of bias and prejudice as to affect the verdict of the jury. Affirmed.

Appellant contends (I) that there was no substantial evidence of defendant’s guilt and the court erred in failing to direct an acquittal “in that the testimony offered by the State was so contradictory * * * that it was wholly insufficient to constitute substantial proof of defendant’s guilt beyond a reasonable doubt.” Appellant asserts that he was convicted on the testimony of witnesses-victims Caruso and Thompson who identified him at show-up and in court, and by witness-victim CoOk who identified him in court, as the one of two men and two women who, on January 23, 1976, put a gun on them and forced Caruso to empty the safe and cash registers at a Milgram’s store in Kansas City, Missouri. He argues that if descriptions compiled by police investigators were correct, then defendant could not have been the man who committed the offenses because none of the descriptions fit defendant. He also emphasizes his alibi testimony, failure of other employees and customers to identify him, and evidence which implicated one Calvin Rayford.

The sufficiency of evidence to support a guilty verdict is determined by taking as true all evidence tending to prove guilt, together with all favorable inferences that it can reasonably support, disregarding contrary evidence and inferences. State v. Graham, 543 S.W.2d 559[1] (Mo.App.1976); State v. Reed, 453 S.W.2d 946, 949 (Mo.1970); State v. Talbert, 524 S.W.2d 58 (Mo.App.1975).

So tested, the evidence would permit a jury reasonably to find: On January 23, 1976, around 8:15 to 8:30 p. m., at Milgram’s Food Store, 6421 Truman Road, Kansas City, Jackson County, Missouri, a black man, identified as defendant, pulled a gun on Joseph Caruso, acting manager of the store. Defendant already had accosted John Thompson, another employee. Defendant told Mr. Caruso he wanted to go to the safe in the back of the store and warned that if any alarms sounded or if anything went wrong he would blow off his head. Defendant, Mr. Caruso and Mr. Thompson proceeded to the back room where the safe was located. It was closed and locked and, at gunpoint, Mr. Caruso explained how it could be opened without sounding an alarm. Defendant also warned that he had friends in the front part of the store who would start shooting if anyone came into the store upon hearing an alarm. At defendant’s direction, Mr. Caruso opened the safe, and all three removed the money and put it in a canvas mail sack. All this occurred under good lighting and, although defendant tried to hold his head at an angle away from Mr. Caruso and told Mr. Caruso not to look at him, Mr. Caruso had a good view of defendant’s face throughout the robbery.

After the money was taken from the safe, defendant, with Mr. Caruso and Mr. Thompson in tow, proceeded to the front of the store. William Cook, the store’s meat cutter, observed them as they came out of the back room with defendant carrying the mail sack. Mr. Cook attempted to go into the back room but was stopped by a second man whom he identified as Calvin Rayford. Rayford directed Mr. Cook to return to the front of the store, threatened him with a gun, and took his watch. Mr. Cook also identified defendant as the robber he saw with Mr. Caruso and Mr. Thompson.

At the front of the store, defendant told Mr. Caruso to unlock all cash registers so that he could take the money from them. Mr. Caruso then noticed another black man and two black women and, as he opened the first cash register, one of the women grabbed the money from it. After the money was taken from the cash register, defendant directed everyone to lie on the floor, after which he and his associates proceeded to the liquor store, robbed it, and fled the scene with $2,500 from the store.

Mr. Caruso and Mr. Thompson attended a line-up on January 28,1976, and saw no one there connected to the robbery. They attended another line-up February 7, 1976, and identified defendant as the robber who took them to the safe in the back room of the Milgram store during the robbery January 23, 1976.

The foregoing demonstrates a case of armed robbery of $2,500 from employees of Milgram’s Food Store and of armed robbery of a watch from William Cook, all as charged against Clint Roberson by the information tried by the jury. § 560.120, RSMo 1969.

With respect to the limited question of identity, “Where there is positive identification by a single eyewitness, with explanation as to discrepancies, this constitutes substantial evidence of the guilt of the defendant, and the weight of the evidence is for the jury. This is especially so where the lighting is good and the witness was close to and personally saw the face of the robber * * State v. Bibee, 496 S.W.2d 305, 316 (Mo.App.1973). See also State v. Kern, 447 S.W.2d 571, 574 (Mo.1969); State v. Stockdale, 415 S.W.2d 769 (Mo.1967); State v. Graham, 527 S.W.2d 936, 947 (Mo.App.1975), all to the effect the testimony of a single witness is sufficient evidence to establish guilt of the accused.

Defendant’s identification as a perpetrator of the robberies was made by three eyewitnesses-victims of his crimes. Mr. Caruso conceded he may have misjudged defendant’s height, but he remained positive in his identification. He and Mr. Thompson did not remember giving descriptions as contained in the police report, and the officers stated that the descriptions they had were not attributable to either Mr. Caruso or Mr. Thompson, but were “composite” descriptions derived from their interviews of Mr. Caruso, Mr. Thompson, and at least two other witnesses.

In these circumstances of sufficient evidence of defendant’s guilt, discrepancies and conflicts, if any, in the identification of defendant and the value of defendant’s alibi, were properly for the jury to resolve. State v. Talbert, supra; State v. Kellick, 521 S.W.2d 166 (Mo.App.1975); State v. Collins, 520 S.W.2d 155 (Mo.App.1975); State v. Davis, 516 S.W.2d 784 (Mo.App.1974).

Appellant charges (II) that “the State suppressed material evidence in failing to produce the picture of the defendant which the prosecutor had shown to Caruso prior to submitting him for deposition.”

This charge does not state “what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous” as required by Rule 84.04(d), V.A.M.R., in order to preserve and present any such point for review. State v. White, 529 S.W.2d 22, 24 (Mo.App.1975).

The State’s cross examination of defendant was calculated to test his alibi and relationship with Calvin Rayford. The following occurred near the end:

“Q. (By Mr. Edwards [for the State]) So you didn’t have anything to do with that Milgram’s event at all; is that correct, sir?

“A. Correct.

“Q. Would you tell me the truth, Clint Roberson, if it meant that the truth was going to send you to prison?

“MS. KNIGHT [for defendant]: I object to that, Your Honor, as highly improper and inflammatory question. This witness is under oath, and is telling the truth.

“THE COURT: Objection is overruled.

“A. I am under oath and I would tell the truth.”

Appellant contends (III) that the court erred in overruling the foregoing objection asserting that the question permitted the State “to accuse the defendant of lying under oath,” and that the court’s ruling “necessarily conveyed the impression to the jury that the court believed the defendant guilty and that he was lying in order to save himself from prison.”

There is no question that reversible error occurs where a prosecutor is permitted by his questions to denigrate the character of defendant or refer to him as a criminal. See, e. g., State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973); State v. Spencer, 472 S.W.2d 404 (Mo.1971); State v. Taylor, 320 Mo. 417, 8 S.W.2d 29 (1928); State v. Moran, 99 Conn. 115, 121 A. 277, 36 A.L.R. 862 (1923). However, the incident said to constitute reversible error in this case is not of the same substance as those proscribed in the foregoing cases.

The scope, extent, and control of cross-examination are matters within the discretion of the trial court, State v. Brewer, 286 S.W.2d 782, 784 (Mo.1956); and, absent an abuse of discretion resulting in prejudice to the accused, the court’s ruling is upheld, State v. Moser, 423 S.W.2d 804, 807 (Mo.1968); State v. Neal, 526 S.W.2d 898 (Mo.App.1975). Bias and prejudice of a witness and his interest in the outcome of litigation are always proper subjects of cross-examination; and a defendant who testifies in his own behalf “may be contradicted and impeached as any other witness in the case,” Section 546.260, RSMo 1969; State v. Reece, 324 S.W.2d 656, 660 (Mo.1959).

The question put to defendant Roberson went to his interest in the outcome of the litigation, a proper subject of cross-examination, as opposed to an improper personal reference. Its intent and effect, if any, were turned against the prosecution when the defendant answered to his self-service, “I am under oath and I would tell the truth,” exactly as stated by defense counsel.

Appellant contends (IV) that the verdict was the result of bias and prejudice of the court, “manifested in improper remarks by the court, impatience and criticism of defendant’s counsel, and the court’s attempt to restrict said cross-examination by suggesting to the prosecutor that he make objections to the cross-examination.”

The difficulty with this contention is that there is no record showing how the jury was influenced by the court’s remarks, or by colloquy between counsel, prosecuting attorney, and the court. Appellant gives four transcript references under his charge; however, all the referenced incidents took place outside the presence or hearing of the jury. Cf. State v. Embry, 530 S.W.2d 401 (Mo.App.1975), where it was reversible error for the court to sustain objections that had not been made and otherwise took over or interfered with defendant’s cross-examination.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: ANDREW J. HIGGINS, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Rickey D. WHITE, Appellant.
    No. KCD 28877.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Jon M. Krebbs, Asst. Public Defender, Liberty, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Appeal from conviction by a jury of tampering with a motor vehicle. § 560.175, RSMo 1969. Appellant questions the sufficiency of the information. Affirmed.

The information charged: That on or about the 30th day of November, 1975, at the County of Clay, in the State of Missouri, one Rickey D. White did then and there wilfully and feloniously tamper with a 1974 Pontiac Firebird, Missouri license A3N-1972 (1976), a motor vehicle, owned by Michael McClure, by removing the right rear tire therefrom without the permission of the said Michael McClure, against the peace and dignity of the State.

Appellant does not question the sufficiency of evidence to sustain the charge and his conviction. The record contains evidence to show that Rickey D. White did, at about 11:00 p.m., November 30, 1975, in the driveway of a residence at 4909 Northeast 34th Terrace, Kansas City, Clay County, Missouri, remove the right rear tire from a 1974 Pontiac Firebird automobile owned by Michael McClure without the owner’s permission. Defendant admitted he removed the tire, but claimed he did so with the consent of the owner. Cf. the similarity of this case with the explication of tampering with a motor vehicle by removing a tire and wheel from an automobile in State v. Ridinger, 364 Mo. 684, 266 S.W.2d 626 (1954), and by removing gasoline, license plate, lights, jack and tools from an automobile in State v. Wood, 266 S.W.2d 632 (Mo.1954).

Appellant contends the information was defective because it “did not adequately advise the defendant of the nature of the crime sufficient for defendant to adequately prepare a defense.” In support of his contention, he asserts that the information does not describe the location at which the alleged crime took place: “The mere statement that the crime took place in Clay County, Missouri is not sufficient notice to the defendant as to the place of the crime, one of the elements in tampering with a motor vehicle. If one does not know the place of the crime, it is impossible to prepare a defense.”

There is no question that if an information fails to charge an offense, the court acquires no jurisdiction to try the information, State v. Newhart, 503 S.W.2d 62 (Mo.App.1973); and that the information must describe all elements of the offense charged in order that the defendant may prepare his defense, State v. Anderson, 298 Mo. 382, 250 S.W. 68 (1923).

The information charged Rickey D. White with the offense of tampering with a motor vehicle in Clay County, Missouri, in the language of the statute, Section 560.-175, RSMO 1969. Its sufficiency in describing the elements of the offense comports with informations found sufficient in prior cases. See, e. g., State v. Wahlers, 56 S.W.2d 26 (Mo.1932); State v. Anderson, 231 S.W. 1070 (Mo.App.1921); State v. Ridinger, supra.

The place of the crime was alleged as “in the County of Clay in the State of Missouri.” Such has always been a sufficient description of the element of place. See Tucker v. State, 481 S.W.2d 10, 14[3] (Mo.1972), dealing with an information charging felonious stealing, and State v. Bussard, 494 S.W.2d 401, 408[8] (Mo.App.1973), and State v. Sallee, 436 S.W.2d 246, 251 (Mo.1969), dealing with burglary of a dwelling and determining that the address of the dwelling within the venue alleged is not an element of the crime.

In the circumstances of defendant’s own testimony that he took the tire, it is difficult to perceive how the information could have failed to advise him of the location of the taking; however, if he desired or needed further particulars, he could have filed a motion to that effect. State v. Bussard, supra; State v. Rose, 428 S.W.2d 737 (Mo.1968); Rules 24.03, 24.11, V.A.M.R.

Appellant cites Partson v. United States, 20 F.2d 127 (8th Cir.1927), to the effect that an information charging commission of a crime in a county named, but alleging no particulars as to place,- is insufficient. This stringent requirement has been nullified in that “such precision and detail as were held necessary to charge an offense in * * * Partson v. United States * * * are no longer required.” Lowrey v. United States, 161 F.2d 30, 35 (8th Cir. 1947), cert. den. 331 U.S. 849, 67 S.Ct. 1737, 91 L.Ed. 1858 (1947).

Judgment affirmed.

All concur.


author: WEIER, Judge.

text:
    STATE ex rel. Thomas Joseph WRIGHT, Appellant, v. John H. POELKER et al., Respondents.
    No. 37722.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 1, 1977.

      Cady & Godfrey, Dewey S. Godfrey, Jr., St. Louis, for appellant.
    Jack L. Koehr, City Counselor, Joseph R. Niemann, Asst. City Counselor, St. Louis, for respondents.
   WEIER, Judge.

Thomas Joseph Wright was dismissed from his position as Deputy Marshal I for the City of St. Louis because he was acting as a bondsman in the City Court of St. Louis and incurred six bond forfeiture judgments against him while on leave of absence from his position with the City. The Civil Service Commission determined that Wright was dismissed for good and just cause. The findings, conclusions and decision of the Commission were found by the circuit court to be supported by competent and substantial evidence. On appeal, appellant Wright contends Rule 37.107 and Article VIII, Section 8 of the Charter of the City of St. Louis, relied on by the Commission, are not applicable to this situation. We affirm.

Appellant was represented by an attorney at the Civil Service Commission hearing held on March 27, 1975. Evidence adduced at the hearing included as exhibits a series of bail bonds signed by appellant upon which judgments had been taken for failure of the defendants to appear in court on the appointed day. Six of the judgments were taken prior to Wright’s dismissal in June 1973. These judgments were still unpaid at the time of the hearing.

R. C. French, City Marshal of the City of St. Louis as of April 30, 1973, was the only witness called at the hearing. He testified that during the course of a review of bond judgments taken against bondsmen, as part of his duties in collecting on bond judgments, he discovered the six judgments against appellant. After an unsuccessful attempt by the Chief Deputy to straighten the matter out with appellant, French did not renew appellant’s leave of absence because of the bond forfeiture judgments against him.

Appellant first contends the trial court erred in finding the decision of the Civil Service Commission was supported by competent and substantial evidence because Rule 37.107 does not apply to this situation in that it does not provide any criminal sanctions and it “goes only to the reputation of the person signing the bond and to his moral character or lack of it.”

Rule 37.107 reads as follows:

No person shall be accepted as a surety on any bail bond taken under these Rules unless he possesses the following qualifications: .
4. He shall not be an elected or appointed official or employee of the State of Missouri or of any county or of any other political subdivision or any municipality of this state.

The Commission determined that appellant’s actions were inconsistent with Rule 37.107 and § 84.230, RSMo. 1969. Appellant does not discuss § 84.230 which provides that “no official or employee holding office under the municipality of the said cities, or the state of Missouri . . . shall be accepted as surety upon such bond or bonds;

Even if Rule 37.107 and § 84.230 do not provide criminal sanctions and exist mainly to help judges decide who may sign bail bonds as sureties, the rule and statute nevertheless describe the type of conduct in which city employees should not engage. Furthermore, Article VIII, Section 8 of the Charter of the City of St. Louis, discussed below, proscribes such activity under penalty of forfeiture of office or employment. This contention is without merit.

In the argument section of appellant’s brief, appellant contends he was not an employee while on leave of absence. Because this point is not mentioned in appellant’s Points Relied On, this court need not consider the issue. Rule 84.04(d); Barber v. M.F.A. Milling Company, 536 S.W.2d 208, 209-10[4] (Mo.App.1976); Dors v. Wulff, 522 S.W.2d 325, 326[5] (Mo.App.1975). Parenthetically, we note that appellant’s attorney admitted in the hearing that appellant was an employee but under leave of absence. The term “leave of absence” does not mean a permanent separation from employment. Rather it “signifies temporary absence from duty with an intention to return, during which time remuneration is suspended.” State ex rel. McGaughey v. Grayston, 349 Mo. 700, 163 S.W.2d 335, 341[17] (Banc. 1942). The relationship of employer and employee between the city and the appellant would therefore continue during the period of leave except for suspension of his obligation to carry out the duties of his work and the compensation therefor.

Appellant’s second contention is that the trial court erred in finding the decision of the Civil Service Commission was supported by competent and substantial evidence because the provisions referring to contracts in Article VIII, Section 8 of the Charter of the City of St. Louis, do not include bail bond contracts and because there was no evidence of an actual conflict of interest in this case. Article VIII, Section 8, provides “nor shall any officer or employe . have a personal interest, directly or indirectly, in a contract with the city . Any person guilty of any wilful violation of this section shall thereby forfeit his office or employment.”

Appellant in his brief admits that “a bond may be considered a contract.” State v. Hinojosa, 364 Mo. 1039, 271 S.W.2d 522, 524[4] (1954), cited by appellant, states: “Sureties know and solemnly contract that the defendant shall appear and abide the orders of the court and in the event of his default are bound by their obligation” (emphasis added). See also, 8 C.J.S. Bail § 16b, p. 21 (sureties must usually be competent to contract) and § 21(c), p. 30 (bail bond obligations are contracts which are not modifiable except by consent of the surety). Appellant contends the contract is only with the person for whom he signs the bond; but obviously, as surety, the bondsman has an obligation to the city in the event the defendant fails to appear. Even if the bondsman’s obligation with the city is considered to be indirect, this situation is still covered by Article VIII, Section 8, which reads: “nor have a personal interest, directly or indirectly, in a contract with the city” (emphasis added). This broad language includes acting as a bondsman in the city courts.

Appellant also contends Article VIII, Section 8, is concerned with conflicts of interest and that there was no evidence of any such conflict here. But the City Marshal, R. C. French, testified that part of his job included collecting on bail bond judgments. At the time of the commission hearing the judgments against Wright were still outstanding. If Wright were reinstated at the time he requested it, it would be possible for further forfeitures to occur on bonds written while Wright was on leave. This activity is a definite conflict of interest.

We agree with the trial court’s finding that the decision of the Civil Service Commission upholding the dismissal of appellant was supported by competent and substantial evidence.

The judgment is affirmed.

CLEMENS, P. J., and DOWD, J., concur.


author: GUNN, Judge.

text:
    Arthur Lee TAYLOR, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 36917.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 1, 1977.

      Robert C. Babione, Public Defender, Christelle Adelman-Adler, Mary Louise Moran, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Cosentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Movant has appealed the trial court’s order overruling his Rule 27.26 motion to vacate a judgment convicting movant of first degree robbery. On appeal, movant argues that his conviction should be set aside because he was denied effective assistance of counsel and because he was improperly charged with the crime for which he was convicted. We find movant’s assertions to be destitute of merit and affirm the trial court’s action.

On an appeal from the denial of a 27.26 motion, the burden is on the movant to establish his right to relief, and our review is limited to a determination whether the trial court was clearly erroneous in its ruling. Nelson v. State, 537 S.W.2d 689 (Mo.App.1976); Rule 27.26(j).

Defendant was convicted of the first degree robbery of a St. Louis laundromat operator. The conviction was based on the positive identification of the defendant at the scene of the crime by two witnesses other than the victim. The conviction was affirmed in State v. Taylor, 496 S.W.2d 822 (Mo.1973). The primary thrust of movant’s 27.26 petition springs from the assertion of ineffective assistance of counsel — a heavy burden for movant to carry. Nelson v. State, supra.

Movant first asserts that his trial counsel failed to make an adequate investigation of the case, particularly in failing to interview witnesses at a liquor store near the laundromat. At the 27.26 hearing, movant’s trial counsel refuted such contention, and the trial court accepted the trial counsel’s testimony as more worthy of belief, which, of course, is proper. Trice v. State, 540 S.W.2d 613 (Mo.App.1976).

Movant’s next contention is that his trial counsel failed to call certain material witnesses to testify. The trial counsel related that he interviewed all the prospective witnesses movant suggested to him but that in his opinion those not called would have added nothing to movant’s defense or aided him in any way, because they were unable to account for movant’s location at the time of the crime. The determination of which witnesses to call and how best to defend the case is a matter of trial strategy. Williams v. State, 536 S.W.2d 190 (Mo.App.1976). Under the circumstances here we do not find the trial counsel’s action incompetent or that movant was deprived of a fair trial thereby. Nelson v. State, supra; Williams v. State, supra.

Movant’s next challenge to his counsel’s abilities concerns the counsel’s failure to object to two witnesses’ in-court identifications of the movant as the perpetrator of the crime. Movant’s counsel was successful in suppressing the identification testimony of the victim based on a police station confrontation. Two other eye witnesses gave in-court identifications of movant as having committed the crime based on their clear view of the movant at the time of the crime. No effort was made to suppress the latter two witnesses’ testimony for the reason, as expressed by trial counsel, that a detailed examination of the two witnesses would only strengthen their testimony; that it was purely a matter of trial strategy by the trial counsel, based on his long experience as a trial lawyer, not to interrogate the two witnesses in detail on their identification testimony. Again, we find no fault in the trial counsel’s strategy. Certainly, there was no deprivation of a fair trial for movant. Nelson v. State, supra.

Movant also contends that his trial counsel failed to request an alibi instruction. The record absolutely belies this contention. Movant’s trial counsel specifically asked for and the jury was given an alibi instruction.

Finally, movant urges that the indictment charging him was faulty for failing to adequately apprise him of the crime alleged to have been committed and that there is no statutory offense for the crime charged. The indictment against movant provided that he:

“. . . feloniously and willfully and by means of a dangerous and deadly weapon, to-wit: knives, did rob, steal, take and carry away, forty-five dollars lawful money of the United States; the property of WALTER WILDER by then and there putting the said WALTER WILDER in fear of an immediate injury to his person and then and there did feloniously and by force and violence to the person of the said WALTER WILDER, rob, steal, take and carry away the said money and personal property of the said WALTER WILDER . . ..”

Movant asserts he was not clearly informed of the charges against him because he was charged with the § 560.135 RSMo 1969 offense of robbery first degree by means of a dangerous and deadly weapon, whereas he was convicted of the § 560.120 crime of first degree robbery. Movant also argues that there is no statutory offense of robbery first degree by means of a dangerous and deadly weapon. State v. Crockett, 543 S.W.2d 314 (Mo.App.1976), answers mov-ant’s argument that he could not adequately prepare for his trial based on the indictment. In Crockett, defendant was charged with robbery first degree by means of a dangerous and deadly weapon and convicted of § 560.120 robbery first degree. Defendant’s argument was that he was inadequately informed of the crime for which he was charged to allow proper preparation of his defense. Not so, said the court. Noting that it was not necessary to make reference to the use of a deadly weapon to support a § 560.120 first degree robbery conviction, Judge Higgins specifically found that such reference did not make the information insufficient and that it adequately advised defendant of the crime charged to allow adequate defense preparation. Thus, State v. Crockett, supra, disposes of the movant’s contention that he had insufficient notice of the charges against him.

Movant’s suggestion that he was convicted of a crime for which there is no statutory provision is as fenestrated as the other points upon which he relies. As noted, movant was indicted for robbery first degree by means of a knife — a dangerous and deadly weapon. The jury was instructed on § 560.120 first degree robbery without reference to the use of a weapon. This was proper. As stated in State v. Hunter, 499 S.W.2d 787, 788 (Mo.1973):

“The information charged robbery in the first degree with a dangerous and deadly weapon, a knife, but the State elected to submit, as it was entitled to do, robbery in the first degree in violation of § 560.120, RSMo. 1969, V.A.M.S., without reference to the use of a deadly weapon.”

Also, as stated in State v. Gabriel, 342 Mo. 519, 116 S.W.2d 75, 77 (1938):

“[A] charge of robbery in the first degree by means of a dangerous and deadly weapon includes, and is sufficient to sustain conviction of, robbery in the first degree and punishment accordingly, as though the use of a deadly weapon had not been charged.”

It is readily apparent that State v. Hunter, supra, and State v. Gabriel, supra, thoroughly dispel any effectiveness of movant’s argument attacking his first degree robbery conviction based on the indictment set forth.

The judgment denying movant’s 27.26 motion is not clearly erroneous; no error of law appears, and the judgment is affirmed.

KELLY, P. J., and LITZ, J., concur.

      . In Nelson v. State, supra, Judge Simeone has set forth in elegant detail the established principles guiding our Rule 27.26 review, including the tests for measuring the effectiveness of counsel assistance.

      . “[Movant’s trial counsel]: The record should show that prior to the giving of the instructions I have requested an alibi instruction.
      “The Court: In keeping with the defendant’s request, the Court is going to give one.
      ******

        "Instruction No. 4

      “The Court instructs the jury that, if there is any evidence before you that raises in your minds a reasonable doubt as to the presence of the defendant at the time and place where the crime is charged to have been committed, if you find a crime was committed, you will acquit the defendant.”


author: NORWIN D. HOUSER, Special Judge.

text:
    William LOCKHART, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37995.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 1, 1977.

      Huck, Kasten & LaBeaume, Graham W. LaBeaume, St. Louis, for movant-appellant.
    John Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., John D. Chancellor, Asst. Circuit Atty., St. Louis, for respondent.
   NORWIN D. HOUSER, Special Judge.

Motion to vacate a judgment of conviction in the Circuit Court of the City of St. Louis and 15-year sentence for selling heroin, filed under Rule 27.26. Defendant appealed the judgment of conviction to the Supreme Court, charging error in the trial court’s refusal to permit him to cross-examine a police officer, the sole witness to the alleged sale, regarding an indictment pending in St. Louis County against the officer charging the officer with second degree murder, and the refusal of the trial court to permit defendant to proceed on his offer of proof that the officer was presently under indictment for second degree murder and had been confined in the county jail for six months or more. The announced purpose of the proposed cross-examination and proof was to show the officer’s “reputation and character so the jury may determine whether he is to be believed at all.” On appeal the Supreme Court affirmed the conviction, ruling that the credibility of a witness may not be attacked by showing his arrest and a pending charge which has not resulted in a conviction; that it would be error to ask a witness if he had been charged with a crime or had been in jail awaiting trial on a pending charge; that there are exceptions, where the inquiry shows a specific interest of the witness, or where it shows a possible motivation of the witness to testify favorably for the government, or where it shows the testimony of the witness was given in expectation of leniency, but that none of these exceptions was preserved by their presentation to the trial court, and that appellant’s brief cannot supply that deficiency. State v. Lockhart, 507 S.W.2d 395 (Mo.Sup.1974). (In his brief on the original appeal appellant introduced for the first time the contention that he should have been permitted to cross-examine the officer to elicit evidence as to whether any promises of preferential treatment were made by the state to the officer, in connection with criminal charges against him personally, in return for his testimony. This purpose of interrogation was not mentioned at the trial.)

Thereafter appellant petitioned the federal district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In a memorandum and order dismissing the petition for failure to exhaust state court remedies the district judge pointed out that in his motion for a new trial petitioner failed to characterize the trial court’s ruling as a violation of a constitutional right; that in its ruling the trial court did not treat the possible constitutional dimensions of the claim, and suggested that petitioner could seek relief in the state courts under Rule 27.26 on the theory that his right to confront witnesses through cross-examination under the Sixth Amendment had been violated, citing cases on the subject. Following this suggestion Lockhart filed this Rule 27.26 proceeding, stating as a ground for vacating the conviction that the trial court denied defense counsel the right to elicit under cross-examination that the only ¿vitness to the offense was under indictment for murder, was suspended by the St. Louis Police Department, and was presently free under $25,000 bond, on the ground that this could not be shown unless the witness had been convicted; that defense counsel stated that such information was necessary for the jury to judicially evaluate the credibility of the witness.

The motion under Rule 27.26, submitted by counsel on memoranda of law, was overruled. Movant has appealed.

In his brief filed in this court appellant’s sole point is that the circuit court erred in not sustaining his 27.26 motion “for the reason that movant was denied his constitutional right to confront the State’s witnesses.”

The judgment must be affirmed. Defense counsel, in cross-examining the principal prosecuting witness, did not attempt to inquire into the witness’ motivation and reasons for testifying in favor of the State or to determine whether he was testifying under pressure or in the expectation of lenience from the authorities. He merely sought to prove the indictment and incarceration as bearing upon the witness’ reputation and character and thus affecting his general credibility, without intimating to witness or court that he desired to test the witness’ interest, bias or prejudice. If defendant had sought to probe these questions and had been precluded the court’s refusal to permit him to do so would have constituted trial error correctable on appeal and not a proper subject for post-conviction relief under Rule 27.26.

In Cook v. State, 511 S.W.2d 819 (Mo.1974) the Supreme Court was presented with the same situation. Cook, denied relief on his Rule 27.26 motion, contended on appeal that the trial court unconstitutionally limited the scope and nature of his cross-examination of the accusing witness. He wanted to elicit the fact that the witness had previously been convicted of perjury and carrying a concealed weapon. The court refused to permit him to do so. He contended on appeal of the 27.26 ruling that the court’s refusal denied him the right of cross-examination and confrontation. In affirming the denial of relief under Rule 27.26 the Supreme Court said, 511 S.W.2d 1. c. 821[6]: “There is no merit to this contention for two reasons. First, while the victim of the assault was asked about previous convictions on both direct and on cross-examination, he was not asked whether he had previously been convicted of perjury or of carrying a concealed weapon. Second, if the incident had occurred, it would have been at most a trial error correctable on appeal, and not a proper subject for setting aside a judgment of conviction pursuant to a motion under Rule 27.26.”

In the argument portion of appellant’s brief, but not mentioned in his sole point on appeal, complaint is made that defense counsel at the trial rendered ineffective assistance by failing “to properly characterize the issue as a constitutionally] guaranteed right to confrontation of a State’s witness for a showing of possible duress to testify in such a way as to convict the Movant” and failed to make proper objections and properly preserve this issue for appeal. No such contention was alleged as a ground for vacating the judgment and sentence in the motion filed under Rule 27.26. This contention not having been included in the Rule 27.26 motion as a ground for relief is not reviewable. Shubert v. State, 518 S.W.2d 326, 328[1] (Mo.App.1975).

The ruling on the Rule 27.26 motion is not clearly erroneous but is correct and proper and is affirmed.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.


author: McMILLIAN, Chief Judge.

text:
    STATE of Missouri ex rel. Jerry T. CAMPBELL, Relator, v. Judy SVETANICS et al., Respondents, and James C. Brandenburg, Intervenor.
    No. 38993.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 2, 1977.

      Daniel R. Sokol, Kenneth J. Rothman, Clayton, for relator.
    Timothy G. Noble, St. Louis, for respondents.
   McMILLIAN, Chief Judge.

This is a proceeding for a writ of prohibition to prohibit the respondents, the members of the Board of Election Commissioners for the City of St. Louis, from retaining the name of James C. Brandenburg on the ballot as a candidate for the office of aider-man of the Thirteenth Ward in the City of St. Louis in the primary election on March 8, 1977. In his petition Relator alleges that James Brandenburg, Intervenor in this action, has not met the residency requirements prescribed by Art. IV, § 2 of the Charter of the City of St. Louis, Missouri, which provides:

“No person shall become an Alderman except he . shall have been next before the election . . . three years a resident of the city, two years an assessed taxpayer of the city, and one year a resident of the ward from which elected . (As amended, pursuant to Ord. 44822).”

This petition was filed with the court on February 28, 1977, after the Circuit Court denied the writ of prohibition.

In his return Brandenburg admits that he has not met the residency requirements but answers that the writ should not be issued because (1) on January 10, 1977, he filed suit in the United States District Court of the Eastern District of Missouri seeking a declaratory judgment that the quoted provisions of Art. IV, § 2 of the St. Louis Charter are unconstitutional in that they violate the equal protection clause of the Fourteenth Amendment, the right of assembly, the right to travel and the right of suffrage guaranteed by the Constitution of the United States; and therefore this court, as a court of coordinate jurisdiction, should dismiss or stay relator’s action until the federal court enters its order; (2) the quoted provisions of Art. IV, § 2 of the City Charter are unconstitutional and should not be a bar to his candidacy; and (3) a writ of prohibition is not the proper remedy in this case.

This court has long recognized the policy of coordinate jurisdictions, see State v. Moss, 392 S.W.2d 260 (Mo.1965); Jackson v. Kaiser, 353 Mo. 919, 185 S.W.2d 784 (1945); Julian v. Commercial Assur. Co., 220 Mo.App. 115, 279 S.W. 740 (1926), but we do not find it applicable in this case. From the arguments presented to us we can perceive no ground for federal jurisdiction in that there appears to be no justiciable case or controversy between Brandenburg, the plaintiff in the federal suit, and the defendant Board of Election Commission-t ers. The Board has placed Brandenburg’s name on the ballot and has not threatened to remove it. Nevertheless, we will assume an actual case or controversy presently exists between the parties in the federal court. The declaratory judgment action, however, does not embrace the same parties involved in this writ proceeding. Brandenburg’s suit in the federal court names as defendants the respondents in this suit, but does not name Jerry T. Campbell, the relator in the action. Further, we find a distinction in the subject matter and relief sought in the two disputes. The federal declaratory judgment suit seeks only a ruling on the constitutionality of the Charter’s residency requirements; this writ proceeding challenges the Board’s action in placing James Brandenburg’s name on the ballot and seeks to remove it.

Having determined that we are not precluded from exercising our jurisdiction in this action, we need only look to our Supreme Court’s decision in State ex rel. Gralike v. Walsh, 483 S.W.2d 70 (Mo. banc 1972), to decide the other issues. In Gralike the court found that a requirement that a candidate for state senator be a resident of the district for one year prior to the election was a valid residency requirement. We see no reason why such a requirement would not also be valid when applied to a city election. Since Mr. Brandenburg failed to meet this requirement, we need not reach the question of the constitutionality of the other residency requirements.

Finally, we find no merit in interve-nor’s claim that a writ of prohibition is not the proper remedy to prevent the election commission from retaining an ineligible candidate’s name on the ballot. Prohibition has often been used in such a circumstance and its correctness is beyond dispute. State ex rel. Gralike v. Walsh, supra, at 74; State ex rel. Bates v. Remmers, 325 Mo. 1175, 30 S.W.2d 609 (Mo. banc 1930); Mansur v. Morris, 355 Mo. 424, 196 S.W.2d 287 (Mo. banc 1946).

The writ of prohibition is to be issued and made absolute.

STEWART and SMITH, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Fred M. KERR, Appellant.

    No. KCD 28503.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Motion for Rehearing and/or Transfer Denied June 1, 1977.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, ,P. J., and SHAN-GLER and DIXON, JJ.

        Editor’s Note: The opinion of the Supreme Court of Tennessee in Gouger v. American Mutual Insurance Company, published in the advance sheets at 548 S.W.2d 296, was withdrawn from publication by request of the Court.

   Appellant Fred M. Kerr (defendant) was charged by indictment with the crime of first degree robbery (Section 560.135 RSMo 1969). He was tried under an amended information invoking the provisions of the Second Offender Act, found guilty by a jury, and sentenced by the court to a term of twenty-five (25) years in the Department of Corrections.

Defendant makes one assignment of error upon which he seeks reversal of the judgment and sentence. He asserts:

“The trial court erred in permitting the rebuttal testimony of witnesses John Clayborne and Larry Bennett insofar as said evidence lacked proper foundation, was irrelevant, constituted proof of separate and distinct crimes and was improper rebuttal evidence.”

Obviously, the defendant in this single point on appeal asserts four reasons for the charge of error in the admission of the rebuttal testimony, namely, 1. it lacked proper foundation; 2. it was irrelevant; 3. it constituted proof of separate and distinct crimes; and, 4. it was improper rebuttal. However, the argument portion of the defendant’s brief is directed solely to the assertion that the rebuttal evidence complained of was improperly admitted because it did not tend to explain, counteract, repel or disprove evidence offered by the defendant.

A brief summary of the facts is sufficient for the purposes of this appeal.

On December 23, 1974, at about 8:00 p. m., John Clayborne, manager, and Donald Williams, clerk, were working in the Black Star Sundries, a liquor store located at 3301 Swope Parkway, Kansas City, Missouri. Two men entered the store and made some inquiry about the purchase of liquor. Both men then displayed guns and one of them said “This is it, lie on the floor.” Clayborne did so and the robbers then ordered Williams to empty the contents of the cash register into a paper sack and he complied. The men then took Williams’ watch, ring and wallet. One of the robbers then returned the wallet because there was no money in it, and then one of them went behind the counter and took Clayborne’s money clip. Claybome and Williams were then told to remain on the floor for two minutes or they would be killed. The robbers then left the store. The money from the cash register amounted to approximately $300.00. The robbery lasted about five minutes.

Both Claybome and Williams made positive, untainted and unequivocal in-court identification of the defendant as one of the two robbers.

The defendant testified in his own behalf and stated that at the time of the robbery on December 23, 1974, he was at his mother’s home at 5042 South Benton, Kansas City, Missouri, watching her house and listening to records while she was at work. He denied any participation in the robbery of the Black Star liquor store and stated that he had never been in that store. He admitted a prior conviction in 1971 on the charge of assault with intent to rob without malice.

On cross-examination, it was brought out that he had also been convicted of armed robbery in 1970. He further stated that a man named Euell Snow, who lived at 3222 East 32nd Street, was going with the defendant’s cousin, who also lived at that address, and that he had stayed overnight there on several occasions during the month following December 23, 1974. He again denied any participation in the robbery and denied that he and Snow had been the robbers. He also denied that he had taken any identification from John Claybome and left it at the Snow address. He denied that he even knew of the existence of the Black Star Sundries Liquor Store. He stated that he “left the streets” in 1971 and did not return until July 25, 1974, apparently serving time on the 1971 armed robbery conviction for which he had been sentenced to five years.

In rebuttal, over the defendant’s objection that the proposed rebuttal evidence had no probative value, the state recalled John Claybome. He identified State’s Exhibit No. 2 as his personal permit to sell liquor. He stated that he carried this permit in his money clip. This money clip was the one taken from him during the December 23, 1974 robbery.

The state then called Larry Bennett, an officer on the Kansas City, Missouri Police Department, who testified, on direct examination, that he conducted a search at 3222 East 32nd Street, the Snow residence, on January 15, 1975, during the course of which he discovered the liquor license of Claybome, State’s Exhibit No. 2.

On cross-examination, Officer Bennett in response to interrogation by defense counsel, testified that he gained access to the residence with the consent of Stephanie Snow, who was then under a charge of having possession of some property which had been stolen from Willie’s Lounge; that it was one of some 25 or 30 other pieces of identification recovered; that he did not know that Mr. Snow is in the penitentiary under a life sentence; and, that Stephanie Snow was then under suspicion of having possession of stolen credit cards.

At the close of all the evidence, counsel for the defense did not ask for leave to reopen defense evidence to present testimony in answer to the above-summarized rebuttal evidence.

Clearly a proper foundation was laid for the admission of the rebuttal testimony in the cross-examination of the defendant which disclosed his friendship with Snow, the residence of his cousin with Snow, and the defendant’s visits to the Snow house at 3222 E. 32nd Street following the robbery on December 23, 1974. With this foundation in the record, the identification by Claybome of his liquor license, State’s Exhibit 2; the fact that it was taken from him in the course of the robbery; and, Officer Bennett’s testimony of his discovery of the license at the Snow residence during his search thereof, were relevant and admissible facts and circumstances tending to establish defendant’s guilt and participation in the robbery. The fact that persons other than the defendant visited the Snow residence (and could have left the liquor license there) simply affected the weight to be given to such testimony by the jury.

Neither did this evidence improperly constitute proof of separate and distinct crimes chargeable to the defendant. In the first place, it was counsel for the defendant who elicited from Officer Bennett the fact that his search of the house was with the consent of Stephanie Snow, who resided there, and was in police custody under a charge of possession of stolen property, and that Euell (Kenneth) Snow was serving a life sentence at the time of trial. If this constituted error, it was injected into the trial by the defense, not the state. Further, it did not constitute proof of any separate and distinct crime of which the defendant was guilty, but at most, that he knew or visited with persons under conviction or charges of violations of the law. There remains the last point, argued by defendant, that the testimony of Clayborne and Officer Bennett was improper rebuttal evidence.

The admission or exclusion of rebuttal evidence rests within the sound discretion of the trial court and it is only when a clear abuse of that discretion has occurred that an appellate court should interfere. The rule as to the admission of such testimony is stated in the case of State v. Williams, 442 S.W.2d 61, 65[7] (Mo. banc. 1968), as follows:

“Any competent testimony that tends to explain, counteract, repel or disprove evidence offered by defendant may be offered in rebuttal of the defendant’s testimony or evidence. * * * The scope of rebuttal testimony is largely within the sound discretion of the trial court, and unless the court abuses its discretion or the defendant’s rights are prejudicially affected, an appellate court will not reverse on that ground even though the rebuttal testimony may not, strictly speaking, be proper rebuttal evidence, ⅛ * ‡ )>

To like effect see: State v. Niehoff, 395 S.W.2d 174, 182[10] (Mo.1965); State v. Kirk, 510 S.W.2d 196[4] (Mo.App.1974); State v. Holland, 530 S.W.2d 730[11—13] (Mo.App.1975).

In light of the defendant’s absolute denial of his guilt or participation in the robbery, and his unsupported alibi testimony, the rebuttal evidence here admitted consisted of facts and circumstances tending to “counteract, repel or disprove” such testimony.

Independent research has revealed four Missouri cases (none cited or relied upon by defendant) where convictions were reversed because of the introduction of improper rebuttal evidence. In each of these the evidence adduced was held to be improper in and of itself regardless of the trial stage at which it was introduced, State v. Phillips, 233 Mo. 299, 135 S.W. 4[1, 6] (Mo.1911), where the court held the evidence improperly suggested that the defendant was guilty of other crimes. State v. Cross, 357 S.W.2d 125[7] (Mo.1962), where the rebuttal evidence consisted of statements of an accomplice not made in furtherance of a conspiracy. State v. Vainikos, 366 S.W.2d 423[5] (Mo.banc 1963), where the rebuttal evidence constituted a comment upon the defendant’s silence during his in custody interrogation. State v. Barker, 249 S.W. 75[1, 7] (Mo.1923), where the court held that the rebuttal evidence was an attack upon the defendant’s character which had not been placed in evidence.

The infirmities (or similar grounds for any claim of incompetency) apparent in Phillips, Cross, Vainikos, and Barker, supra, are not present in the case at bar. The evidence of the defendant’s participation in the robbery involved is strong and convincing. The conclusion is irresistible that the trial court did not abuse its discretion in permitting the state’s rebuttal testimony and that the defendant’s rights were not prejudicially affected thereby.

Accordingly, the judgment is affirmed.

All concur.


author: GORE, Special Justice.

text:
    Roy A. MILES et al., Plaintiffs-Appellees, v. The TENNESSEE CONSOLIDATED RETIREMENT SYSTEM et al., Defendants-Appellants.
    Supreme Court of Tennessee.
    Dec. 13, 1976.
    Rehearing Denied March 29, 1977.

      Thomas A. Wiseman, Jr., Nashville, for defendants-appellants.
    Val Sanford, Nashville, for plaintiff s-ap-pellees.
   OPINION

GORE, Special Justice.

This is a suit for declaratory judgment by certain plaintiffs who are members of the Tennessee Consolidated Retirement System. The plaintiffs include retired and active judges whose tenure in office and age vary so that a decision hereunder will apply to all judges who are members of the Tennessee Consolidated Retirement System whether retired or not retired.

The Chancellor, in his very able and exhaustive opinion, sets forth the nature of this action, the respective positions of the parties plaintiff and defendants, the Statutes of the State of Tennessee at issue, the Constitutional provisions of the State of Tennessee and the United States, and the portions of same relied upon by the respective parties. This Court incorporates into this Opinion portions of the Chancellor’s Memorandum Opinion as follows:

“Plaintiffs, as State judges, seek an adjudication declaring unconstitutional and void Sections 5, 6, and 7 of Chapter 315 of the Public Acts of 1975 insofar as each Section relates to the plaintiffs. Plaintiffs include both active and retired State judges and one inactive State judge who has accrued more than eight years service.

“Defendants are the Tennessee Consolidated Retirement System, which has powers, privileges and immunities of a corporation (See T.C.A. 8-3902), its Board of Trustees individually named, and the Attorney General of the State of Tennessee, who is a necessary party because the constitutionality of a State Statute is being attacked.

“In 1955 the State of Tennessee, by the provisions of Chapter 3 of Title 17, established a Tennessee Judges’ Retirement System, in which, pursuant to the provisions thereof, each of the plaintiffs became a voluntary participant. The aforesaid Statutes were repealed by Acts 1972, Chapter 813, with exceptions and provisions set forth in certain sections of said chapter as follows:

“(1) In Section 18 that ‘each and all of said sections and chapters will remain in full effect for the purpose of defining rights, benefits and privileges preserved under Section 11, subsection (4) of this Act.’
“(2) In Section 11, subsection (4) that: ‘All prior class members of any retirement system abolished or merged into the Tennessee Consolidated Retirement System and their beneficiaries shall be entitled to all of the rights, benefits and privileges provided in the system so abolished or merged, including any salary prescribed by law to take effect on the date of establishment, and nothing in the present Act shall be construed to restrict, limit or terminate any provisions of any law providing such rights, benefits and privileges under such former systems.’ “(3) Also in Section 11, subsection (3) that: ‘Notwithstanding any other provision of this section 11, no increase in the retirement allowance of any beneficiary of a superseded system shall be granted on or after the date of establishment except as provided in this subsection (3) or in section 5(17) of this act, except that retired members and beneficiaries of superseded systems of judges and attorneys-general shall be entitled to the provisions of prior laws with respect to benefit base to include current salaries.’
“(4) And in addition, in Section 17 subsection (4) that: ‘Every provision of this Act shall be subject to amendment or repeal by any session of the general assembly, provided that no such amendment or repeal shall diminish or annul, in any respect, any right acquired by a member or beneficiary under the provisions of this Act.

“The provisions in the above sections are now carried respectively as 8-3949, 8-3935(4), 8-3935(d)[(3)(d)] and 8-3948 Tennessee Code Annotated. Although the provisions of Chapter 3 of Title 17 are repealed, the sections thereof are carried in the code with this parenthetical note: ‘Repealed, except that this section will remain in full effect for the purpose of defining rights, benefits and privileges preserved under subsection (4) of § 8-3935.’

“By the same Act cited above, that is, Acts 1972 Chapter 814, the General Assembly of Tennessee established as of July 1, 1972, the Tennessee Consolidated Retirement System, which contained the provisions that members of the Tennessee Judges’ Retirement System (a superseded system) ‘shall become’ members of the Tennessee Consolidated Retirement System. Thus, each plaintiff by virtue of membership in the superseded system became a member of the Tennessee Consolidated Retirement System with the reservations noted above preserving rights, benefits and privileges of Chapter 3 of Title 17, including inter alia, a definition of ‘Benefit Base’ (See Subsection (3) under T.C.A. 17-313).

“The plaintiffs alleged (1) that as voluntary contributing members of the Tennessee Judges’ Retirement System merged into the Tennessee Consolidated Retirement System they each thus acquired contractual rights which the State cannot deny them; (2) that by the passage of Sections 5, 6, and 7 of Chapter 315, Acts of 1975, and approval by the Governor to become effective June 30, 1975, the State indicated an intent ‘to assert a claimed right to deprive these plaintiffs of such contractual rights at will;’ (3) that Sections 5, 6, and 7 of Chapter 315 violated Article 1, Section 20 of the Constitution of the State of Tennessee and Article 1, Section 10, of the Constitution of the United States ‘because they constitute retrospective laws impairing the obligation of the contract;’ (4) that said sections are unconstitutional and void because each deprives these plaintiffs of their rights and property without due process of law contrary to Article 1 of the Constitution of the State of Tennessee and the 14th Amendment to the Constitution of the United States; (5) that said sections purport to diminish the amount of compensation during the time for which plaintiffs are elected, in violation of Article 6, Section 7, of the Constitution of Tennessee, which prohibits increase or diminishment of such compensation, and therefore, that such Sections are void; (6) that the passage of said Sections disregards the separation of powers of government into three distinct departments, legislative, executive, and judicial, the latter being vested with the judicial powers of this State, and thus fails to recognize the distinctive role of the judiciary and accordingly respectively violates Article 2, Sections 1 and 2, and Article 6, Sections 6 and 7, of the Constitution of Tennessee.

“The defendants, while admitting statutes and constitutional provisions as alleged and admitting that plaintiffs have standing as alleged and are entitled to a declaratory judgment as sought, deny conclusions of law as expressed in said complaint (1) wherein is alleged an offer by the State and an acceptance by each of the plaintiffs when he made voluntary contributions to the retirement fund and (2) wherein is alleged a ‘valid contract between State and plaintiffs’ and (3) wherein is alleged that the General Assembly in the 1972 Act evidenced ‘a clear recognition of an intent to preserve the rights, benefits and privileges of members of the Tennessee Judges’ Retirement System, including these plaintiffs’ and (4) wherein is alleged ‘an intent to disregard the contractual rights’ of plaintiffs in the ‘benefit base,’ as evidenced by the abolition of any increase beyond May 1, 1975, and the imposition of a ceiling on the benefit base and (5) wherein is alleged that Sections 5, 6, and 7 ‘constitute retrospective laws impairing’ obligations of contract or depriving plaintiffs of property and rights without due process of law or purporting to diminish the amount of compensation during the time for which plaintiffs were elected or ‘disregarding the constitutional independence of the Judicial Department,’ all as protected by the Tennessee and United States Constitutions.”

The plaintiffs in this case fall into two different categories — the first consisting of Judges Miles and Leffler who were eligible for pension benefits but who had retired and resigned, respectively, prior to the 1974 elections, and the second consisting of the other five judges plaintiffs, namely, Judges Phillips, Faquín, Broughton, Doran and Drowota, who were elected to hold office in the August elections of 1974.

Judge Miles entered the pension system of the State in the year 1958, was re-elected in 1966, and retired on August 31, 1974. Judge Miles held office during the time the 1970 and 1972 Acts were enacted and at the time he retired these two Acts were in full force and effect in Tennessee.

Judge Leffler, who was a former circuit court judge and who served for more than eight years, having resigned in 1971, is less than fifty-four years of age at the present time. He very clearly stated in his testimony that in making a decision to resign “he considered the assurance of the benefits under the Tennessee Judges’ Retirement System in connection with planning his estate,” and “relied upon those assurances in making his decision to resign.”

The pension system in the State of Tennessee, from its earliest days, was a contributory system, and when Judge Miles and Judge Leffler came to the bench they elected to come within the system and to contribute to the system. The record also shows that both of them very clearly expected the State of Tennessee to pay them retirement under whatever law was in force at the time of Judge Miles’ retirement and Judge Leffler’s resignation, in the form of a pension, and that this was an inducement to their originally seeking the office.

All the other judges plaintiffs in this case, namely, Wil V. Doran, Chancellor, Shelby County; Dayton E. Phillips, Chancellor, First Chancery Division; Len G. Broughton, Jr., Chancellor, Knox County; Arthur C. Faquín, Jr., Criminal Court Judge, Shelby County; and Frank F. Dro-wota, III, Judge of the Court of Appeals of Tennessee, stated in their testimony that they clearly expected the State of Tennessee to pay them retirement under whatever law was in force at the time of their retirement, in the form of a pension; and that this was an inducement to their originally seeking office. In addition to their voluntary contributions to the plan, these judges were elected and took office on September 1, 1974, thereby commencing a term of office within the meaning of Article 6, Section 7 of the Constitution of Tennessee.

The record contains the testimony of Donald Overholser, an Actuary for the State; Gary Fisher, Staff Attorney for the Retirement System of the State of Tennessee; the minutes of the Council on Pensions and Retirement; the report of the House Debate of May 21, 1975 on House Bill 378; the proceedings in the Senate on May 27, 1975, and the proceedings in the House on March 30, 1975. By agreement of the parties, a simplified explanation of House Bill 378 and Senate Bill 328 was also made a part of the record.

From all of this testimony, and from the various exhibits by agreement placed into the record, it is clear that the Legislature of the State of Tennessee, in preparing to act on Chapter 315 of the 1975 Act (being amendments to T.C.A. § 8-3935 and related statutes), spent more than two years very carefully reviewing the entire pension system of the State of Tennessee, including the pension system dealing with judges and attorneys general; that they recognized a clear responsibility to the State as a whole and its taxpayers and also realized their responsibility to the judges and the methods used by the Legislature in the past to deal with judges’ compensation in one form or another; that there was very sharp disagreement in the debates dealing with both House Bill 378 and Senate Bill 328 as to whether the benefit base for the judges should be changed.

It is clear from the record that the General Assembly recognized that, by enacting the provisions of the 1970 Act, which were brought forward in the 1972 Act, a commitment was made to the judges upon which the judges could and would rely regarding their pension benefits. (T.C.A. § 17-319).

The Chancellor held as follows:

“The Court holds that the plaintiffs are entitled to the relief sought; that by Public Acts of the State, offers of retirement benefits were made to the judges (plaintiffs), who in reliance thereon continued performance and thereby established a contractual relationship; that in addition thereto, Chapter 814, Acts of 1972, acknowledged the rights, benefits and privileges of the superseded retirement systems to be vested by prohibiting any subsequent amendments; that Sections 5, 6, and 7 of Chapter 315, Acts of 1975 do limit, restrict and diminish the rights, benefits and privileges of these plaintiffs and their beneficiaries and, accordingly, are null and void and of no force and effect as to these plaintiffs because said provisions impair the obligations of contracts of the plaintiffs, and, thus violate Article 1, Section 20, of the Constitution of Tennessee and Article 1, Section 10, of the United States Constitution.

“Enforcement of Sections 5, 6, and 7 would deprive the plaintiffs of their rights and property without due process, and thus violate the Tennessee and United States Constitutions.”

The Chancellor pretermitted the question of whether Sections 5, 6, and 7 of Chapter 315, Acts of 1975 violated the provisions of Article 6, Section 7, of the Constitution of Tennessee.

The defendants below seasonably and properly perfected an appeal to the Supreme Court of Tennessee and set out five Assignments of Error. However, all of these Assignments of Error, together, as set out in Appellants’ Brief, presented two questions for the consideration of this Court and both the Brief of the Appellants and the Brief of the Appellees addressed themselves primarily to these two questions, namely:

1. Whether the relationship between the plaintiffs and the State of Tennessee, acting through the Tennessee Judges’ Retirement System and the Tennessee Consolidated Retirement System, involved “obligations of contract” within the meaning of Article 1, Section 20 of the Constitution of Tennessee and Article 1, Section 10 of the Constitution of the United States; and

2. If so, whether Sections 5, 6, and 7 of Chapter 315 of the Public Acts of 1975 impaired such obligations within the meaning of those same constitutional provisions, or whether these sections of the 1975 Act were a reasonable legislative modification of prior legislative grants of retirement benefits.

As to Judges Miles and Leffler, we agree with the learned Chancellor and hold that the State of Tennessee offered to and did enter into a contract with Judge Miles and Judge Leffler to pay them a pension upon their retirement in accordance with the law in effect at that time, setting the pension for Judge Miles at the time of his retirement and for Judge Leffler at the time of his resignation. When Judge Miles retired and Judge Leffler resigned they completed their contracts with the State of Tennessee so that, in effect, the benefit base to be used for Judge Miles and Judge Leffler as to their pensions would be the benefit base established in the Act of 1970 and brought forward into the Act of 1972, namely “a sum equal to the annual salary the retired judge would receive if he continued in the office from which he retired”, T.C.A. § 8-3901, et seq.

The Court further holds that this contract between the State of Tennessee and Judges Miles and Leffler was impaired under Article 1, Section 20 of the Constitution of Tennessee and Article 1, Section 10 of the Constitution of the United States, by the 1975 Act which reduced the benefit base set up in the Act of 1970 for calculating the pension. State statutes may contain provisions which, when accepted as a basis for actions by individuals, become contracts between them and the State, within the protection of Article 1, Section 10 of the United States Constitution. Indiana, ex rel. Anderson v. Brand, 303 U.S. 95, 58 S.Ct. 443, 82 L.Ed. 685 (1938).

There are no Tennessee cases dealing with public pensions. However, this Court has held that laws creating the rights to private pensions will be liberally construed. Collins v. City of Knoxville, 180 Tenn. 483, 176 S.W.2d 808 (1944), and that the offer by an employer to an employee of a pension is an inducement to employment. State, ex rel. Thompson v. City of Memphis, 147 Tenn. 658, 251 S.W. 46 (1923). See also, Weesner v. Electric Power Board, 48 Tenn.App. 178, 344 S.W.2d 766 (1961).

The case of Weesner v. Electric Power Board, supra, dealing with the private pension of an electric power board in Chattanooga, clearly holds that an offer of a pension, the acceptance of same, and the completion of the service of the employee, creates a vested interest in said pension which will not be denied either to the participant or his family.

The Appellants insist that the General Assembly is empowered to reasonably modify pension benefits, even if vested. We do not agree. Such power is not available to the General Assembly in the absence of a showing that a vital interest of the State must be protected by an exercise of the police power. Indiana, ex rel. Anderson v. Brand, supra.

The record contains testimony from the Actuary and other employees of the State that the 1975 Act was passed to alleviate the funding problems of the pension system in general, as well as the pension system for judges; but, nowhere in the record is there any claim from any witness that the attempt to alleviate this funding problem by the Act of 1975 was to protect a vital interest of the State. Home Building and Loan v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934).

Therefore, since the 1975 Act was not designed to protect some vital interest of the State, we hold that Judge Miles had completed a contract at the time of his retirement with the State of Tennessee and Judge Leffler had a completed contract at the time of his resignation from the bench with the State of Tennessee within the provisions of Article 1, Section 20 of the Constitution of the State of Tennessee prohibiting impairment of a contract of the State with an individual, and Article 1, Section 10 of the United States Constitution which is similar.

We feel compelled to note that the Act of 1970 increased the benefit base during the Judges’ term of office, and the Act of 1972 incorporated this increase during the term of office.

The record indicates that Judge Miles, and undoubtedly other Judges not parties to this action, served and retired (and Judge Leffler resigned) on the basis that the State of Tennessee would honor its statutory commitments. It would be unjust and inequitable, following this justified reliance by these Judges, to permit any tampering, statutorily or otherwise, with their pension benefits.

Accordingly, we hold that these appellants are estopped to assert the invalidity of these benefits.

This Court, therefore, does not feel it is necessary under the circumstances, to consider the violation of the Fourteenth Amendment to the Constitution of the United States and the Fifth Amendment to the Constitution of the United States.

The other Judges, plaintiffs in this suit, Judges Phillips, Faquín, Broughton, Doran and Drowota, were elected and took office on September 1, 1974, at the time the benefit base enacted by the 1970 Act (T.C.A. § 17-313(e)), and brought forward in the 1972 Act (T.C.A. § 8-3935(3)(d)), was in full force and effect.

We hold that the retirement benefits of these judges are a part of their compensation. Weesner v. Electric Power Board of Chattanooga, supra.

We hold that these judges are protected by Article 6, Section 7 of the Constitution of Tennessee.

At the time these judges were elected in 1974, the benefit base enacted in the Public Acts of 1970 was in full force and effect and protected by Article 6, Section 7 of the Constitution of ' Tennessee. This benefit base has been diminished during the time for which these Judges are elected by Sections 5, 6, and 7, Chapter 315, Public Acts, 1975. Accordingly, Sections 5, 6, and 7, Chapter 315, Public Acts of 1975, are unconstitutional as to these Appellees.

We further hold, as to Judges Dro-wota, Phillips, Faquín, Broughton, and Do-ran, who took office on September 1, 1974, that the State of Tennessee entered into a contract with these Judges for a period of eight (8) years. Further, these Judges relied upon the promises of the State, as set forth in the statutory retirement scheme in existence on September 1, 1974, when they commenced the eight (8) year term of their employment.

Sections 5, 6, and 7, Chapter 315, Public Acts of 1975, attempt to impair the terms of this contract and thereby run afoul of Article 1, Section 20, Constitution of Tennessee, and Article 1, Section 10, Constitution of the United States.

As stated by the Supreme Court of Pennsylvania:

The Legislature may strengthen the actuarial fibers but it cannot break the bonds of contractual obligations. The permissible changes, amendments and alterations provided for by the Legislature can apply only to conditions in the future, and never to the past. According to the cardinal principle of justice and fair dealings between government and man, as well as between man and man, the parties shall know prior to entering into a business relationship the conditions which shall govern that relationship. Ex post facto legislation is abhorred in criminal law because it stigmatizes with criminality an act entirely innocent when committed. The impairment of contractual obligations by the Legislature is equally abhorrent because such impairment changes the blueprint of a bridge construction when the spans are half way across the stream.”
Hickey v. Pittsburg Pension Bd., 378 Pa. 300, 106 A.2d 233, 52 A.L.R.2d 430.
See also, cases cited in Footnote 7, supra.

We affirm the Chancellor below as to his findings and basis for Judges Miles and Leffler, but as to the remaining Appellees, we modify the Chancellor’s decree to the extent same is inconsistent herewith.

The costs will be taxed against the Appellants.

WILLIS, Special Chief Justice, and HAR-VILL, WATSON, GORE and WINNING-HAM, Special Associate Justices, concur.

OPINION ON PETITION TO REHEAR

A courteous and thoughtful petition to rehear has been filed on behalf of the appellants in this case. We have given careful consideration to the authorities cited therein and the Court is of the opinion that the issues presented were dealt with in the original opinion. Therefore, the Court adheres to the conclusions stated in the original opinion filed in this cause.

The petition to rehear is respectfully overruled.

WILLIS, Special Chief Justice, and WATSON, HARVILL, and WINNING-HAM, Special Justices, concur.

      . T.C.A. § 17-313(e) “Benefit Base” means a sum equal to the annual salary the retired judge would receive if he continued in the office from which he retired.

      . Article 6, Section 7, Constitution of Tennessee — Compensation of judges. — The judges of the Supreme or Inferior Courts, shall at stated times, receive a compensation for their services, to be ascertained by law, which shall not be increased or diminished during the time for which they are elected. They shall not be allowed any fees or perquisites of office not hold any other office of trust or profit under this State or the United States.

      . Assignments of Error.

      1. The learned Chancellor below erred in holding that legislation defining benefit base for judges retirement purposes constituted offers of contracts by the State of Tennessee.

        2. The learned Chancellor below erred in holding that appellees acquired constitutionally protected contract rights to specific provisions of judges retirement legislation.
      3. The learned Chancellor below erred in holding that §§ 5, 6, and 7 of Chapter 315 of the Public Acts of 1975 impaired appellees’ contract rights to the benefit base provisions of prior law.
      4. The learned Chancellor below erred in finding that Chapter 315 of the Public Acts of 1975 impaired or violated any constitutionally protected rights to specific legislative grants of retirement benefits acquired by ap-pellee under the State or Federal Constitutions.
      5.The learned Chancellor erred in failing to hold that Chapter 315 of the Public Acts of 1975 was a reasonable exercise of the continuing legislative power to amend and modify specific provisions of retirement benefit base legislation for state judges.

      . It has long been established under our law that a contract is executed when everything that was to be done has been done and nothing remains to be done. Farrington v. State of Tennessee, 95 U.S. 679, 24 L.Ed. 558 (1877).

      . Article 1, Section 20, Constitution of Tennessee — No retrospective laws. — That no retrospective law, or law impairing the obligation of contracts, shall be made.

      . Article 1, Section 10, Constitution of the United States — [Powers denied the states.] —[1.] No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money, emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. . . .

      .For three well-written decisions from other states which are similar, see the following: Bardens v. Board of Trustees of Judges Retirement System of Illinois, 22 Ill.2d 56, 174 N.E.2d 168 (1961); Sylvestre v. Minnesota, 298 Minn. 142, 214 N.W.2d 658 (1973); Campbell v. Michigan Judges Retirement Board, 378 Mich. 169, 143 N.W.2d 755 (1966). See also, 52 A.L.R.2d 437.


author: BROCK, Justice.

text:
    Hazel Gladys ADAMS, Appellant, v. CARTER COUNTY MEMORIAL HOSPITAL and Dr. W. G. Frost, Appellees.
    Supreme Court of Tennessee.
    March 14, 1977.

      Thomas E. Cowan, Jr., Tucker, Cowan & LaPorte, Elizabethton, for appellant.
    J. Paul Coleman, Herndon, Coleman, Brading & McKee, James A. Weller, Weller & Miller, Johnson City, for appellees.
   OPINION

BROCK, Justice.

This is an action by a widow for damages for the alleged wrongful death of her husband who committed suicide while a patient in defendant hospital and under the care and treatment of defendant physician, Frost. The injuries resulting in death occurred on February 11, 1973, when plaintiff’s husband plunged down a staircase at the hospital. Complaint in this action was filed on February 8, 1974. Summons was issued and served on the defendant hospital on February 8, 1974, but the summons for defendant Frost, although it purports to have been issued on February 8, 1974, was not receipted for, nor served and returned by the sheriff, until August 14, 1974.

Both defendants filed motions to dismiss the complaint for failure to state a claim upon which relief may be granted. The trial judge granted these motions. Defendant Frost also moved to quash the summons and to dismiss the action as to him, contending that the action was not lawfully commenced as to him because the plaintiff did not “prosecute and continue the action” as required by law, so that, the service of process upon him on August 14, 1974, was wholly ineffective, and that the statute of limitations of one year had run. The trial judge also sustained this motion.

When the trial judge indicated his conclusion that the complaint failed to state a claim, the plaintiff moved to amend by adding an appropriate allegation relying upon the wrongful death statutes, T.C.A. § 20-607, et seq. The trial judge denied this motion to amend, stating that “there was nothing to amend to state such a cause of action.” Plaintiff has appealed to this Court, assigning error with respect to each of these actions of the trial judge.

The trial court erred in granting the motions to dismiss the complaint for failure to state a claim upon which relief may be granted. The complaint contained detailed averments of malpractice against each defendant and alleged that these breaches of duty proximately caused the death of their patient, the plaintiff’s husband. It thus stated a cause of action under well settled rules of liability in such cases. Haskins v. Howard, 159 Tenn. 86, 16 S.W.2d 20 (1929); Osborne v. Frazor, 58 Tenn.App. 15, 425 S.W.2d 768 (1968); James v. Turner, 184 Tenn. 563, 201 S.W.2d 691 (1941); Rural Education Assoc. v. Anderson, 37 Tenn.App. 209, 261 S.W.2d 151 (1953); Schwartz, “Civil Liability for Causing Suicide,” 24 Vand.L. Rev. 217 (1971).

A short and plain statement of the claim showing that the pleader is entitled to relief, along with a demand for damages is all that is now required. Rule 8.01, Tenn.R. C.P. It was not necessary that plaintiff expressly refer to her reliance upon the wrongful death statutes, T.C.A. § 20-607, et seq. Parsons v. Am. Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698 (1934). Plaintiff does not rely upon the violation of any statute as the basis of her cause of action; hence, Rule 8.05(1), Tenn.R.C.P., does not apply. In any event, the allegations of the complaint were sufficient. Indeed, neither the order of dismissal nor the motions to dismiss point out any alleged particular deficiency of the complaint.

The trial court further erred in denying plaintiff’s motion to amend. Rule 15.01, Tenn.R.C.P., provides that “a party may amend his pleadings once as a matter of course at any time before a responsive pleading is served.” Under this provision, the plaintiff clearly had the right to amend without leave of court since no responsive pleading to the complaint had been served. A motion is not such a responsive pleading. Kroger Co. v. Adkins Transfer Co., 284 F.Supp. 371 (M.D.Tenn.1968), aff'd 408 F.2d 813 (6th Cir. 1969); Blazon, Inc. v. DeLuxe Game Corp., 268 F.Supp. 416 (S.D.N.Y. 1965); Hanraty v. Ostertag, 470 F.2d 1096 (10th Cir. 1972); Sohns v. Dahl, 392 F.Supp. 1208 (W.D.Va.1975); Porter v. Montaldo’s, 71 F.Supp. 372 (S.D.Ohio 1946); 35 C.J.S. Factors § 1 et seq., p. 494 et seq.

The action of the trial court in quashing the service of process upon defendant Frost and dismissing the action as to him was correct; but, the further action of the court in holding that the statute of limitations of one year bars any further proceedings against defendant Frost was error. In considering this question, we must accept the facts as they appear in the technical record since the plaintiff failed to preserve the evidence by a bill of exceptions.

Summons was issued for defendant Frost on February 8, 1974, the day the complaint was filed, but was not receipted for by the sheriff until August 14, 1974, on which date it was also served and returned. Without a bill of exceptions, we have no explanation for the delay in receiving, serving and returning the writ. It is clear, however, that the efficacy of this summons terminated upon the expiration of thirty days next following its issuance on February 8, 1974. Rule 4.03, Tenn.R.C.P. Thus, there could be no valid service of that summons after March 10, 1974, so that, the purported service upon defendant Frost on August 14, 1974, was ineffective and was properly quashed by the trial judge.

The Rules plainly contemplate that a summons will be either served within thirty days after its issuance or returned unserved promptly at the end of that period of time. They contain no express provision to govern the situation presented here, in which the summons is neither served nor returned un-served at the end of the thirty day period. Nevertheless, the plaintiff cannot sit idly by when confronted with such a situation. We hold that when the summons is not returned at the end of thirty days following its issuance, the plaintiff must apply for and obtain issuance of new process within six months, or recommence the action within one year, of the end of said thirty days period in order to preserve the original commencement of the action as a bar to the running of a statute of limitations.

Applying Rules 3 and 4, Tenn.R.C.P., as thus construed, to the case at bar, the plaintiff could have applied for and obtained issuance of a new summons up to and including September 10, 1974; but, since this was not done, the instant action became subject to abatement and was properly dismissed by the trial court.

Nevertheless, it was error for the trial court to hold that further action against defendant Frost was barred by the statute of limitations of one year from the date of injury. That determination of the court was premature. Plaintiff may timely recommence the action against defendant Frost by filing a new complaint any time within one year of the entry of judgment of this Court affirming the order of dismissal of the trial court. T.C.A. § 28-106. This statute applies since the original action was timely filed and is being dismissed upon a ground not concluding the plaintiff’s right of action. W. R. Grace & Co. v. Taylor, 55 Tenn.App. 227, 398 S.W.2d 81 (1965).

The judgment of the trial court dismissing the action against Carter County and the City of Elizabethton is reversed and the cause remanded for further proceedings. The judgment quashing the service of process upon defendant Frost and dismissing the action against him is affirmed, but insofar as the judgment purports to hold that further efforts to proceed against defendant Frost are barred by the statute of limitations, it is reversed. Costs of appeal are taxed equally against plaintiff and defendants, Carter County and City of Eliz-abethton.

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

      . “4.03. Summons—Return.—
      “The person serving the summons shall promptly and within the time during which the person served must respond, make proof thereof to the court and shall identify the person served and shall describe the manner of service. If a summons is not served within 30 days after its issuance, it shall be returned with the reasons for the failure to serve stated thereon. The plaintiff may obtain new summonses from time to time, as provided in Rule 3, after any prior summons has been returned un-served.”

      . “RULE 3. COMMENCEMENT OF ACTION “All civil actions are commenced by filing a complaint with the Court. An action is commenced within the meaning of any statute of limitations upon such filing of a complaint, whether process be returned served or un-served; but if the process is returned unserved, plaintiff, if he wishes to rely upon the original commencement as a bar to the running of a statute of limitations, must either prosecute and continue the action by applying for and obtaining issuance of new process from time to time, each new process to be obtained within six months from return unserved of the previous one, or plaintiff must recommence the action within one year after the return of the initial process not served.” Rule 3, Tenn.R. C.P.

      . “New action after adverse decision not foreclosing merits. — If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may, from time to time, commence a new action within one (1) year after the reversal or arrest.” T.C.A. § 28-106.

      . By permission of the trial court, these political entities were substituted as defendants in place of Carter County Memorial Hospital.


author: HENRY, Justice.

text:
    Dallas C. COFFMAN, Appellant, v. Joe HAMMER et al., Appellees.
    Supreme Court of Tennessee.
    March 14, 1977.

      C. S. Rainwater, Jr., T. E. Forgety, Jr., Dandridge, for appellant.
    Ralph H. Noe, Jr., Morristown, for appel-lees.
   OPINION

HENRY, Justice.

This appeal from the decision of the Chancery Court of Grainger County, upholding the County Beer Board’s denial of a permit for the retail sale of beer for off-premises consumption, arises under Chapter 2, Title 57, Tennessee Code Annotated.

Appeals to this Court in cases involving beer permits are accompanied by a presumption of the correctness of the action of the trial judge. Such action will not be disturbed on appeal unless the evidence preponderates against it. Lones v. Blount County Beer Board, 538 S.W.2d 386 (Tenn.1976). Upon the application of this standard we find that the Chancellor’s action is without substantial support in the record and that the record evidence preponderates against his conclusions.

As we pointed out in Howard v. Willocks, 525 S.W.2d 132 (Tenn.1975) and reiterated in Lones, supra, under the 1961 amendment to Sec. 57-205, T.C.A., “the Legislature mandated that an applicant for a beer permit, who complies with all the legal requirements, shall have such license or permit issued to him” leaving “the only issue ... as being ‘whether or not an applicant, under the proof, has met all the said conditions and provisions.’ ” 538 S.W.2d at 389.

There are five (5) basic requirements of Sec. 57-205, T.C.A. It is tacitly conceded or shown by the record that four of these requirements have been met, leaving at issue only the applicant’s compliance with the third requirement, which reads in pertinent part as follows:

Third, that no such beverages will be sold except at places where such sale will not cause congestion of traffic or interference with schools, churches, or other places of public gathering, or otherwise interfere with public health, safety and morals; the county court having the right to forbid such storage, sale or manufacture at places within two thousand (2,000) feet of such places of public gatherings in its discretion.

The Beer Board, in denying the permit, assigned the following grounds, which we summarize or quote as follows:

1. That U.S. Highway 25E, is a major, heavily travelled, and dangerous thoroughfare; that the issuance of the permit would create additional traffic congestion and create additional hazards.

2. That the sale of beer “will lead to its consumption, and in most instances, a portion of that consumption will occur as soon as the purchaser gets onto the highway . greatly increasing the danger to the safety of the public . . . ”

3. That discarding beer cans and bottles along the highway is “detrimental to public health, the environment, and constitutes a public nuisance.”

4. “That statistics prove that many crimes and lawless conduct originate with the consumption of alcoholic beverages.”

5. “That the sale and consumption of beer destroys the home, creates poverty and misery, dethrones reason, defiles innocence, —yea, literally takes the bread from the mouths of little children, and topples men and women from the pinnacles of righteousness and gracious living into the bottomless pits of degradation and despair, shame and helplessness and hopelessness.”

The last two grounds express the apparent philosophy of the Grainger County Beer Board that beer is a dangerous and deadly commodity, the consumption of which leads to dire and disastrous consequences. We have no disposition to take issue with these strongly held convictions, but we do point out that they obviously constituted the primary motivation for the denial of this permit.

As this Court said in Ewin v. Richardson, 217 Tenn. 534, 541, 399 S.W.2d 318, 321 (1966), “[t]hey may well be right but the courts are without authority to give them relief.” Their prayer for relief must be addressed to the state legislature.

However, we share the concern of all good citizens at the litter and trash along the shoulders and right-of-ways of our public roads, but this affords no ground for the denial of a beer permit. Indeed, beer drinkers have no monopoly on that unfortunate predilection of some members of the public to mar the beauty of public thoroughfares by unlawfully discarding bottles, cartons, trash, garbage and refuse of every known variety, admittedly creating an unsightly mess that could well be characterized as a nuisance.

The only legitimate issue before the Board, the trial court, and this Court, with any semblance of support in the record, is whether the location of the premises will create hazardous traffic conditions, interfere with schools or adversely affect the public health, safety and morals. The Chancellor held that the issuance of this permit would have precisely those effects. We find no substantial support in the record for these conclusions.

The proposed premises has a spacious parking area. The building sits back approximately one hundred feet from the highway. Visibility is 1,000 feet or more in either direction along the highway. U.S. Highway 25E is heavily travelled, and school children are picked up and deposited in the immediate proximity to the proposed location. The nearest church is about one mile away and the nearest school four or five miles.

It must be borne in mind that the appellant seeks a permit to operate a “package” store. There is a substantial difference between an outlet selling for off-premises consumption and the conventional beer outlet where beer is consumed on the premises.

We can find nothing in the record from which it might be fairly concluded that the sale of beer for off-premises consumption would stand on any different footing from the sale of any other commodity. We are not so naive as to suggest that such sales will not have any impact on traffic conditions. Every new retail establishment, irrespective of its stock in trade, would necessarily increase traffic.

The applicant’s proposed location is an existing establishment — a combination grocery store and service station. We are unable to perceive any difference, in principle, between a purchase of a six-pack of beer to go and a purchase of a six-pack of any non-alcoholic beverage. In each case the purchaser comes, he buys and he goes.

We find no evidence to indicate any unreasonable increase in traffic, nor to indicate any adverse effect upon the public welfare. As we said in Lones, supra, “There is not the slightest suggestion that this particular outlet will cause congestion of traffic or create any other condition not already in existence.” 538 S.W.2d at 390.

The Beer Board was obviously hard put to find excuses for denial. It heard this case on January 22, 1974 and did not announce a decision until December 10, 1975, keeping the case under advisement for approximately one year, ten months and eighteen days. If the public interest was so adversely affected, the Board could have acted with greater dispatch.

We infer from the argument of counsel that the Grainger County Beer Board has never issued a permit for the retail sale of beer. This Beer Board is bound to abide the laws of the state. Its collective personal notions of morality are secondary to its sworn duty to uphold the law. Under the law this permit must be issued.

We reverse the judgment of the Chancellor and remand for the entry of an order directing the Grainger County Beer Board to issue forthwith to Dallas C. Coffman, a permit authorizing and permitting the sale of beer in accordance with his application.

Reversed and remanded.

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