author: NYE, Chief Justice.

text:
    The CITY OF INGLESIDE, Relator, v. Martin A. JOHNSON, Official Court Reporter, et al., Respondents.
    No. 1123.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 20, 1976.

      Bruce D. Viles, Wood, Burney, Nesbitt & Ryan, Corpus Christi, for relator.
    Horkin & Horkin, Corpus Christi, amicus curiae.
    James M. Whitten, Sinton, Elizabeth B. Levatino, Austin, Mark H. Giles, Stone, Berryman & Giles, Inc., Corpus Christi, for respondents.
    Tony Korioth, Austin, amicus curiae.
   OPINION

NYE, Chief Justice.

This is an original proceeding initiated in this Court by Relator, The City of Ingleside, requesting relief in the nature of mandamus, injunction and declaratory judgment against Respondent, Martin A. Johnson, Official Court Reporter for the 156th Judicial District Court of San Patricio County.

The City requests that this Court issue its writ of mandamus directing the Court Reporter to deliver to the City the completed statement of facts in Cause No. 16,417, styled T. R. Stewart, d/b/a L & S. Air Conditioning Company v. The City of Ingleside, without requiring the City to make any further payment to the Court Reporter therefor. The City further requests that we grant declaratory relief whereby this Court would make a determination as to the constitutionality of Article 2324, Tex.Rev. Civ.Stat.Ann., upon which Court Reporter relies, and make a determination of the lawful basis upon which Court Reporter’s compensation for the preparation of the statement of facts may be computed. The Attorney General of the State of Texas has been made a party to this action pursuant to Article 2524-1, § 11, Tex.Rev.Civ.Stat. Ann.

The facts surrounding this case being un-controverted will be set out as follows. The controversy upon which this original suit is based grew out of a lawsuit originating in the 156th Judicial District Court of San Patricio County between T. R. Stewart (Plaintiff) and the City of Ingleside (Defendant), designated Cause No. 16,417 in the trial court. The subject matter of the lawsuit involves a controversy over alleged labor performed and materials furnished by Stewart to the City of Ingleside, and for payment therefor. The official Court Reporter for the 156th Judicial District Court is Martin A. Johnson. During the course of the trial, the Court Reporter took full shorthand notes of all oral testimony, objections to the admissibility of evidence and the rulings and remarks of the trial judge.

Subsequent to the trial and prior to entry of judgment, the trial judge advised the parties that it was prepared to render judgment in Stewart’s favor for $4,700.00. In light of the trial court’s action, the attorney representing the City of Ingleside wrote to the Court Reporter requesting an estimate of the costs in preparing a complete question and answer statement of facts and the approximate length of time he would require in preparing the statement of facts. The Court Reporter replied by return mail that he estimated the statement of facts would cost from $2,500.00 to $3,000.00 and that it would require from four to six weeks to prepare the same. The Court Reporter stated that a $1,000.00 deposit would be required “before I will even start on same, with the balance due upon delivery.”

Because the estimated cost of between $2,500.00 to $3,000.00 appeared high, the attorney for the City of Ingleside wrote to the Court Reporter asking him to review his notes as he (the attorney) believed that he (Court Reporter) must have made a mistake in his estimate of the costs of the statement of facts because the trial only lasted 3V2 days and the oral testimony reported covered no more than 15V4 hours. The Court Reporter made no reply to the above request.

Thereafter, on January 26, 1976, the trial court-entered its judgment for Stewart in the amount of $4,700.00. The City of Ingleside filed its notice of appeal pursuant to Rule 354(c), T.R.C.P. on the same date. On February 16, 1976, the City made formal written request upon the Court Reporter for the preparation of and delivery to it of a transcript of the evidence in question and answer form. In light of the difference of opinion over the proposed costs of the statement of facts, appellant’s attorney in a separate letter to the Court Reporter stated that he would pay a reasonable amount for the Court Reporter’s services as provided in Article 2324. However, the City reserved the right to make objections to the trial court as to the reasonableness of the charges and have the trial court determine if such charges were reasonable, and, if necessary, to have the matter finally determined by the appellate courts.

The Court Reporter by letter dated February 20, 1976, acknowledged receipt of appellant’s request for the statement of facts and again demanded the $1,000.00 deposit. The Court Reporter further stated that “Any attorney’s fees and expenses of expert witnesses that I incur with reference to any litigation, I shall add to the total bill for the statement of facts.” The Court Reporter further requested that the City’s attorney obtain an extension of time for the filing of the statement of facts from this Court as he would be unable to complete the statement of facts within the time remaining (40 days); otherwise, he would charge an additional charge of twenty-five cents (25$) per page.

On February 28, 1976, the Court Reporter advised the City by letter that he estimated the number of pages in the statement of facts to be from 800 to 1,000 pages and that he would charge $2.00 per page, plus fifty cents (50$) per page for exhibits and fifty cents (50$) per page for the indexing of the exhibits. In addition, he stated he would charge $2.00 to $3.00 for covers and binding the statement of facts and the same amount for covers and binding the exhibits. On March 3, 1976, the City delivered to the Court Reporter the $1,000.00 deposit requested, reserving the right to object to the trial court, and to pay only such sum for the statement of facts as is ultimately determined to be reasonable.

Notice of appeal was filed by the City on January 26, 1976. On March 18, 1976, the transcript in Cause No. 16,417 was filed’by appellant City in this Court, thereby clothing us with exclusive jurisdiction over the appeal, giving it our Cause No. 1111. Thereafter on March 24, 1976, the appellant filed its first motion for an extension of time to file the statement of facts. The appellant alleged in said motion, the existing. controversy between it and the Court Reporter and the need for additional time in which the City may present its objections as to the reasonableness of the Court Reporter’s charges and objections to Article 2324, in the appropriate forum. This Court granted the motion on March 31, 1976 and extended the time in which to file the statement of facts 45 days, until May 10, 1976.

On April 14, 1976, the City filed in this Court its motion for leave to file its petition for mandamus, injunction, declaratory and other relief. On April 19, 1976, this Court granted the City’s motion for leave to file the petition, and set the case for submission and oral argument on May 12, 1976. Notice of the setting was given to all parties concerned.

The record before us shows that the Court Reporter in the meantime requested the same trial judge to approve the fee that he had quoted to the attorney for the City of Ingleside. On May 4,1976, a hearing for the determination of the reasonableness of the Court Reporter’s charges was had before the Honorable Rachel Littlejohn, Judge of the 156th District Court. The City filed a plea in abatement, answer and motion for continuance raising among other things, the question as to the constitutionality of Art. 2324. The trial judge, after considering the pleadings on file and the evidence introduced, entered its order determining only the point that, the sum of $1,991.00 was a reasonable compensation for the Court Reporter to charge.

Thereafter the Attorney General of Texas filed in this Court its brief pursuant to Article 2524-1, § 11, Tex.Rev.Civ.Stat.Ann. The memorandum was submitted solely with respect to the question concerning the constitutionality of Article 2324, asserting that this Court is without jurisdiction to consider the constitutionality of Article 2324 under either the Declaratory Judgment Act, Article 2524-1 or under Article 1823, Tex.Rev.Civ.Stat.Ann. which gives this Court original jurisdiction.

The City insists that Article 2324, Tex. Rev.Civ.Stat.Ann. upon which the Court Reporter bases his charges for such statement of facts is unconstitutional and void because: 1) it is an unlawful delegation to the judiciary of an exclusively legislative power to prescribe the fees, duties and compensation of public officials and utilities and, therefore, violates Article II, § 1, Texas Constitution; 2) it unlawfully violates Article III, § 44, Texas Constitution by providing that the compensation of a public official shall be set by the judiciary; 3) it improperly delegates to the judiciary the exclusive legislative function of providing for the duties and fees of court reporters and failing to provide therein legally sufficient standards; and 4) it violates Article III, §§ 35, 56, Texas Constitution and the Fourteenth Amendment to the U. S. Constitution as being a special law which is incapable of uniform application and, therefore, deprives litigants due process and equal protection of the law.

The City, in addition to requesting that we issue a writ of mandamus, requests also that we enter a declaratory judgment declaring Article 2824, Tex.Rev.Civ.Stat. Ann. to be unconstitutional, saying we have authority to render such a declaratory judgment under Article 1822 and Article 1823. We do not agree. Our authority, under such statute is limited. Courts of Civil Appeals have no jurisdiction to render a declaratory judgment in a case filed originally in that Court. See Lydick v. Chairman Of Dallas County Republican Executive Committee, 456 S.W.2d 740 (Tex.Civ.App. —Dallas 1970, no writ); Donald v. Carr, 407 S.W.2d 288 (Tex.Civ.App.-Dallas 1966, no writ); Article 2524-1, Tex.Rev.Civ. Stat.Ann. The City has failed to cite us to a single Texas case holding that an appellate court, in a suit originating in that court, has jurisdiction to issue declaratory relief.

Therefore, the City’s request for declaratory relief by this Court as to the constitutionality or validity vel non of Article 2324 is denied since we are without authority to issue such relief. Such matters should properly be brought up by appeal from the trial court’s ruling on the reasonableness of the Court Reporter’s fees as a separate appeal for our later review and determination.

Under Articles 1823 and 1824, Tex. Rev.Civ.Stat.Ann., Courts of Civil Appeals may issue mandamus only in protection of their appellate jurisdiction or to order a trial judge to proceed to trial and judgment. Crofts v. Court of Civil Appeals For Eighth Supreme Judicial District, 362 S.W.2d 101 (Tex.Sup.1962); Johnson v. Court of Civil Appeals For Seventh Supreme Judicial District of Texas, 162 Tex. 613, 350 S.W.2d 330 (1961); Brown v. American Finance Co., 432 S.W.2d 564 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.); Julian v. Hoffman, 520 S.W.2d 935 (Tex.Civ.App.-Dallas 1975, no writ). The jurisdiction exercised by this Court in granting the writ must therefore come within the purview of the above two statutes.

The appellate jurisdiction of the Courts of Civil Appeals in civil cases extends to and includes questions of the sufficiency of the evidence to support the judgments of the trial court. The judgments of the Courts of Civil Appeals are conclusive in all cases on the facts of the case. Article 1820, Tex.Rev.Civ.Stat.Ann.; Article 5, § 6, Texas Const. In other words, we have exclusive jurisdiction on assignments of error which tests the weight and sufficiency of the evidence. Art. 1820; Tippett v. Bran-non, 493 S.W.2d 511 (Tex.Sup.1973). The City of Ingleside in its sworn application for leave to file, states that in its appeal from the judgment of the trial court in the main lawsuit, it is appealing upon the weight and sufficiency of the evidence of the facts heard before the trial court. Unless the subject statement of facts in Cause No. 1111 is filed in this Court, this Court would be unable to determine the weight and sufficiency of the evidence upon which judgment the City has appealed. Since the Court Reporter is an officer of the court and the bond (or the exemption from filing of bond in this case) enures to the benefit of the “officers of the court” (Rule 354, T.R.C. P.), the Court Reporter should not be permitted to interfere with the jurisdiction of this Court in deciding the case by refusing to deliver the statement of facts.

Our jurisdiction to issue extraordinary writs such as mandamus may be invoked for the purpose of protection of our appellate jurisdiction. Art. 1823. Since the Court Reporter by withholding a vital part of the record on appeal is interfering with the decision making process of this Court, we hold that we have authority to issue a writ of mandamus to protect our jurisdiction with respect to the subject appeal for the following reasons set out hereafter.

The writ of mandamus, being a legal remedy clothed with principles of equity, is available to compel action on the part of those charged with positive duties because of their official position. Smith v. Grievance Committee, State Bar Of Texas For District 14-A, 475 S.W.2d 396 (Tex.Civ.App.-Corpus Christi 1972, no writ). However, mandamus will not issue to compel a public official to perform an official act unless the official has refused to perform and it is made to appear to this Court that the relator’s right to have the act performed is clear. See Hendricks v. Board Of Trustees Of Spring Branch Independent School District, 525 S.W.2d 930 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ ref’d n. r. e.); Cobra Oil & Gas Corporation v. Sadler, 447 S.W.2d 887 (Tex.Sup.1969 and cases cited therein).

Since the Court Reporter has refused to deliver the statement of facts to the appellant without prior payment, the sole issue for our determination therefore is whether the City has shown to this Court its right to have the act performed, i. e., delivery of the completed statement of facts without advance payment, such being a clear official duty of the Court Reporter. In order to make such a determination, we must examine Article 2324, Tex.Rev.Civ.Stat.Ann. in light of Rule 354, T.R.C.P., and the effect of such statute and Rule upon a party (City) who by another statute (Articles 2072 and 1174) is exempt from giving security for “cost” in perfecting its appeal to this or any other appellate court.

There is no dispute that an official court reporter, assigned to one of the District Courts of this State, is an officer of the State and as such, their duties are set forth under Article 2324. See Dunn v. Allen, 63 S.W.2d 857 (Tex.Civ.App.—Dallas 1933, no writ); Butcher v. Tinkle, 183 S.W.2d 227 (Tex.Civ.App.—Beaumont 1944, writ ref’d w. o. m.). The Court Reporter is a public official and as such is subject to the mandamus powers of this Court under the above statutes.,

The original statutes that first set forth the duties of official court reporters were Articles 1923, 1924 and 1926. In the year 1925, those statutes were codified into one statute being Article 2324. This 1925 revision to the Texas Statutes provided that upon payment therefor, the reporter was to furnish a transcript to a person who was not a party to a suit reported by said reporter. The 1925 statute also provided that upon request by a party to a suit reported by said reporter, said reporter shall receive as compensation fifteen cents per hundred words for the original. There was no requirement that the fees were to be paid in advance. Prior to the last amendment of Article 2324 which occurred in 1975, Article 2324 read in pertinent part as follows:

“Preserve all shorthand notes taken in said court for future use or reference for a full year, and furnish to any person a transcript of all such evidence or other proceedings, or any portion thereof as such person may order, upon the payment to him of the fees provided by law.
When any party to any suit reported by any such reporter shall desire a transcript of the evidence in said suit, said party may apply for same and the reporter shall make up such transcript and shall receive as compensation therefor the sum of not more than thirty cents per one hundred words for the original thereof.” (Emphasis supplied.)

During the time that the above statute was in effect, Rule 354, T.R.C.P., (1957), regarding the cost bond on appeal then read:

“Rule 354. Cost Bond. — The appellant shall execute a bond to be approved by the clerk, payable to the appellee in a sum at least double the probable amount of the costs of the court below, the Court of Civil Appeals, and the Supreme Court, to be fixed by the clerk, conditioned that such appellant shall prosecute his appeal or writ of error with effect, and shall pay all the costs which have accrued in the court below, and which may accrue in the Court of Civil Appeals and the Supreme Court.”

It was clear when the above rule was in effect, the cost bond, although covering all of the costs accruing in the trial court, did not cover the cost of preparing the statement of facts or transcript. See Rule 354, T.R.C.P. (Supp.1975); Williams v. Williams, 392 S.W. 539 (Tex.Civ.App.—Tyler 1965, no writ). Because the court reporters for the courts of this State were not protected by the cost bond, some of the appellate courts who took notice of this absence of such protection, interpreted the then existing Article 2324 and Rule 354 to require payment of the court reporter’s fees as a condition precedent to the delivery of a transcript of the evidence. See Johnson v. Cross, 131 S.W.2d 1054 (Tex.Civ.App.—Amarillo 1939, no writ); Durden v. Patterson, 147 S.W.2d 845 (Tex.Civ.App.— Galveston 1941, no writ); Maxfield v. Pure Oil Co., 74 S.W.2d 145 (Tex.Civ.App.—Dallas 1934, no writ).

However, in 1962, Rule 354, T.R.C.P. was amended by the Supreme Court adding the requirement that the bond or deposit in lieu thereof was to cover the cost of the statement of facts and transcript. Rule 354 in its present form provides in pertinent part as follows:

“The bond on appeal shall have sufficient surety and shall be conditioned that appellant shall prosecute his appeal or writ of error with effect, and shall pay all the cost which have accrued in the trial court and the cost of the statement of facts and transcript. . . . Appellant may make the bond payable to the clerk instead of the appellee, and same shall inure to the use and benefit of the appellee and the officers of the court, and shall have the same force and effect as if it were payable to the appellee. In lieu of a bond, appellant may deposit with the clerk cash in an amount determined by the clerk to be sufficient to cover the estimated cost in the trial court and the cost of the statement of facts and transcript . . . .” (Emphasis supplied.)

The cost bond then, since 1962, provides security not only for the estimated cost in the trial court but also provides security for the cost of the statement of facts and transcript.

Thereafter in 1975, Article 2324 was amended to its present form and provides in pertinent part as follows:

“Each Official Court Reporter shall upon request:
⅜ ⅜ ⅜ ⅜ ⅜: ⅜
Preserve all shorthand notes taken in said court for future use or reference for three full years, and furnish to any person a transcript of all such evidence or other proceedings, or any portion thereof as such person may order, upon the payment to the official shorthand reporter of the fees provided by the judge.
When any party to any suit reported by any such reporter shall desire a transcript of the evidence in said suit, said party may apply for same by written demand, and the reporter shall make up such transcript and shall receive as compensation therefor a reasonable amount, subject to the approval of the judge of the court if objection is made thereto, taking into consideration the difficulty and technicality of the material to be transcribed and the time within which the transcript is requested to be prepared. The original transcript fee charged shall pay for the original plus one copy of the transcript, and additional copies may be purchased for a fee per page not in excess of one-third (¾⅞) of the original cost per page. In addition such reporter may make a reasonable charge, subject to the approval of the trial court if objection shall be made thereto, for postage and/or express charges paid; photostating, blue-printing or other reproduction of exhibits; indexing; and preparation for filing and special binding of original exhibits. Provided further, that in case any such reporter shall charge in excess of the fees herein allowed by the judge, whether by accident or design, he shall, on demand filed with the court, make refund of the excess to the party to which it is due. Provided, however, that the Supreme Court of Texas under its rulemaking authority shall provide for the duties and fees of court reporters in all civil judicial proceedings, except as provided by law.
Amended by Acts 1975, 64th Leg., p. 826, ch. 319, § 1, eff. May 27,1975.” (Emphasis supplied.)

In light of the Amended Rule 354, it is quite clear to us that the Legislature has provided for two contingencies occurring, depending upon who requests the statement of facts. Article 2324 provides that upon demand by “any person” for a transcript (of the evidence), the reporter shall furnish such transcript “upon payment of his fees”. This section clearly requires that a person, not a party to the lawsuit, and for which no cost bond or deposit in lieu thereof is required, must make advance payment to the official reporter prior to being entitled to delivery of the same. This is so because the reporter is not otherwise protected on his fee, having no bond or other security securing his fees. In the next paragraph, the statute refers to “any party to any suit reported by any such reporter” who shall desire a transcript of the evidence in said suit. In this situation, a party is required by Rule 354, T.R.C.P. to provide a cost bond or deposit in lieu thereof to cover the cost of the statement of facts and transcript. In such a case, once the bond is filed or a deposit in lieu thereof is made, the reporter’s fees are guaranteed and secure regardless of whether the case is reversed or affirmed.

The Legislature has by law required the court reporters (when requested) to attend the sessions of the courts, take full shorthand notes of all oral testimony and when, by written demand by a party to the suit, make up a transcript of the evidence of the case. Here, the Court Reporter has stated that unless $1,000.00 in cash is deposited with him, he would not start transcribing the statement of facts. In addition, the Court Reporter is claiming a lien upon the transcript of the evidence to the extent of the balance of his fee before he will release the statement of facts to the City of Ingle-side for filing in this Court after the same has been transcribed.

At common law a lien arises by implication of law and is generally founded on the immemorial recognition of the common law right to such a lien as a result of established usage of a particular trade. Such a common law lien is a right to retain that which is in his possession which belongs to another until certain demands of the person in possession are satisfied. The transcript of the evidence of a case is not such private property.

Fees of officers of the court have always been taxed as costs. These include fees for accountants, auditors, the clerk, examiners, masters, sheriff or constable fees, jury, and attorneys’ fees among others. It falls most naturally that court reporters’ fees would lie in the same category as other officers of the court. Rule 354, T.R.C.P. so envisions when it says that the bond shall cover the costs of the transcript of the evidence and the bond shall inure to the benefit of the officers of the court. We see no cogent reason for court reporters to be treated differently. Since Rule 354, as it is now written covers the cost of the statement of facts, then upon the filing of the appeal bond, such party is entitled to the statement of facts without advanced payment and without regard to their financial ability to pay for the same. See Williams v. Williams, supra.

The question next arises as to whether the City, being a party exempt under Articles 2072 and 1174, Tex.Rev.Civ.Stat.Ann., from giving security for cost in perfecting its appeal, stands in the same shoes as a party who gave a bond or cash in lieu thereof and is therefore entitled to be furnished a statement of facts without the necessity of paying the Court Reporter in advance. See State v. Hickey, 97 S.W.2d 713 (Tex.Civ.App.— Waco 1936, no writ). We believe no difference exists.

It is uncontroverted that the City of In-gleside is an incorporated city and as such is not required to give security for cost on appeal. Article 2072, 1174, Tex.Rev.Civ. Stat.Ann. In such a case, Rule 354(c) provides in part:

“(c) When a bond for costs on appeal is not required by law, the appellant shall in lieu of a bond file a notice of appeal which shall be filed with the clerk, within thirty days after rendition of judgment or order overruling motion for new trial . ” (Emphasis supplied.)

It is a well settled rule that mandamus will not lie until everything has been done that is necessary to make it the legal duty of the official to act. Anderson v. Grossenbacher, 381 S.W.2d 72 (Tex.Civ.App.—San Antonio 1964, writ ref’d n. r. e.). Since the City has done everything required of it, mandamus must lie.

We, therefore, believe that the City having filed the notice of appeal within the required time limits is entitled to be furnished the statement of facts without making any advanced payment to the Court Reporter and he is under a legal duty to deliver the statement of facts without first demanding payment therefor.

We have received an amicus curiae brief from the Texas Shorthand Reporters’ Association. Amicus Curiae alleges that on April 15, 1975, an amendment to Article 2324 was offered to the Legislature adding the following language with respect to a party to a suit reported by the reporter. The offered amendment read:

“however, the transcript shall be furnished without payment of the fees provided by law, if requested by an appellant who has executed and filed a cost bond approved by the clerk, as provided by the rules of civil procedure.”

This amendment failed to be adopted by the Legislature and Amicus Curiae now contends that since the Legislature rejected the proposed amendment, it was expressing its intent that payment must be made at time of delivery of the statement of facts, regardless of whether or not the appellant has filed or is required to file a cost bond and regardless of whether he is a party or not to the suit reported by such reporter.

The rejection of a proposed amendment to a statute may constitute some argument for legislative interpretation of the act amended or sought to be amended. To such extent it can be considered by the courts in interpreting the act. However, the rejection of an amendment as such does not control the construction of the statute. 82 C.J.S. Statutes § 360.

There are decisions holding that in construing a statute, rejected amendments, or rejected alternative legislation, should not be considered, or at least should be given little weight, since the courts can have no means of knowing the real reasons that influenced the legislature in such rejection. In any event, the rejection of an amendment, or the elimination of words from a bill before its passage, is not conclusive of the bill’s inapplicability to the matters included in such amendment or described by such words. See 73 Am.Jur.2d Statutes § 172.

All statutes are presumed to be enacted by the Legislature with full knowledge of the existing condition of the law and with reference to it. Statutes are to be construed in connection with, and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, that is, they are to be construed with reference to the whole system of law of which they form a part, including reference to other statutes, rules of procedure, and the decisions of the courts. 82 C.J.S. Statutes § 362, et seq. Therefore, Article 2324 should be construed in light of the rules then in existence. Amended Rule 354 provides that a cost bond covers the cost of the statement of facts. The Court of Civil Appeals in Williams v. Williams, supra, recognized it as such. If the Legislature had intended that a party to a suit reported by said reporter must make advanced payment for the statement of facts before being entitled to receive the same, they would have so stated in direct language. This was not done. The amendment offered was sur-plusage in light of Rule 354. The Legislature again recognized the Supreme Court’s rulemaking authority by rejecting the amendment.

The Court Reporter relies upon the case of Quarles v. State, 385 S.W.2d 395 (Tex.Cr.App.1965) which held that a court reporter was within his rights in requiring payment of his fee as a condition precedent to the delivery of a transcript of the argument, since no pauper’s oath had been filed. This case is clearly distinguishable. In a criminal case, unlike a civil case, there is no provision whereby an appealing party must file an appeal bond which secures the costs of the statement of facts. Since there is no procedure by which such costs can be secured, it would be unreasonable to require the reporter to give up the statement of facts without prior payment therefor, as the Court in Quarles so held. In a civil case, Rule 354 provides a method whereby a reporter’s fees are secured and protected, therefore, prior payment therefor becomes unnecessary.

In view of our holding that the Court Reporter under the circumstances of this case, has a legal duty to furnish to the City of Ingleside, Texas, the subject statement of facts without first demanding and receiving payment therefor, we order Martin A. Johnson, Official Court Reporter, 156th Judicial District of Texas, to deliver the statement of facts in Cause No. 1111, styled The City of Ingleside v. T. R. Stewart, d/b/a L & S Air Conditioning Co., Inc., to the Clerk of this Court, the Honorable Lawrence Ludka, either, in person, or by first-class United States mail in an envelope or wrapper, properly addressed and stamped (postage prepaid) on or before 5:00 p. m., Monday, May 24, 1976; provided, however, if the same is placed in the United States Mail, a legible postmark dated on or before 5:00 o’clock p. m., Monday, May 24, 1976, must be affixed thereon by the United States Postal Service in order for such statement of facts to be delivered in time.

Upon receipt of said statement of facts by the Clerk of this Court, the Clerk shall mark it received and notify all attorneys of record in Cause No. 1111 of such fact. The attorneys of record shall then have an opportunity to check out and examine the statement of facts as to its truth and accuracy and approve the same. If the parties cannot agree whether the record accurately discloses what occurred in the trial court within ten (10) days after being furnished with a copy of the statement of facts, the matter shall be submitted to the trial court in accordance with Rule 377, T.R.C.P.

MANDAMUS GRANTED.

      . Art. 1822. [1593] [998] Inquiry into jurisdiction
      “Said courts shall have power, upon affidavit or otherwise as by the courts may be thought proper, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction.”

      . Art. 1823. [1592] [997] Writs of mandamus, etc.
      “Said courts and the judges thereof may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts. Id.”

      .Art. 1824. [1595] [1000] May mandamus district courts
      “Said Courts or any Judge thereof, in vacation, may issue the writ of Mandamus to compel a Judge of the District or County Court to proceed to trial and judgment in a cause, returnable as the nature of the case may require. Acts 1st C.S., 1892, p. 25; Acts 1923, p. 110; Acts 1929, 41st Leg., p. 68, ch. 33, § 1.”


source: Caselaw Access Project

author: JONES, Justice. PALMORE, Justice

license: Public Domain

text:
    C. E. PENNINGTON COMPANY, INC., et al., Appellants, v. Tracy Leon WINBURN et al., Appellees.
    Supreme Court of Kentucky.
    Jan. 9, 1976.
    As Modified on Denial of Rehearing May 7, 1976.
    Lional A. Hawse, Landrum, Patterson & Dickey, Lexington, for appellants.
    W. Rodes Clay, Clay, Dykeman, Gartland & Watts, Lexington, for appellees.
    C. Kilmer Combs, Kelsey E. Friend Law Firm, Pikeville, for amicus curiae Rodney Fuller.
    William A. Rice, Rice & Huff, Harlan, for United States Steel Corp., National Independent Coal Operators Assn., and Harlan County Coal Operators Assn.
    Carl Arthur Henlein, John W. Bilby, Middleton, Reutlinger & Baird, Louisville, for International Harvester Co., Associated Industries of Kentucky and Louisville Chamber of Commerce.
    Armer H. Mahan, Davis & Mahan, Louisville, for Commercial Union Assurance Co., Transport Ins. Co., and Kentucky Carbon Coal Corp.
    Larry L. Johnson, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for Old Republic Ins. Co.
   JONES, Justice.

This appeal is from the Workmen’s Compensation Board’s award of $39.25 per week for a 20% permanent-partial disability to Tracy Leon Winburn.

Pennington and Insurance Company of North America filed a petition for review in the Fayette Circuit Court. On April 30, 1975, the Fayette Circuit Court affirmed the board. Pennington and its insurance company have appealed.

Winburn, a 39-year-old carpenter, was employed by Pennington. On October 5, 1973, he received a work-related injury which destroyed the vision in his left eye. At the time of his injury his weekly earnings were $314.00. He was married and had two children. The medical testimony indicated that Winburn had a 20% permanent-partial disability. The evidence revealed that Winburn not only returned to work for Pennington, but also was discharged without explanation three days later. At the time the matter was before the circuit court, Winburn was employed at an hourly rate of $3.50.

This appeal presents two issues for the court’s determination.

First, Pennington and its insurance carrier contend that the board erred in not limiting the award to the benefits schedule set out in KRS 342.730(l)(c)(16). They insist that the award should be 20% of the maximum award of $81.00.

Secondly, Pennington and its insurance carrier contend that the award exceeded the limitation imposed by KRS 342.740(1).

The first contention that the recovery, permitted by the schedule of benefits as set out in KRS 342.730(1)(c)(16), is mandatory is totally without merit. Under the provisions of KRS 342.730(1)(c)(27), the law provides that if any of the injuries affects an employee’s ability to labor or limits his occupational opportunities to obtain the type of work he is customarily able to do, his compensation benefits shall not be limited by KRS 342.730(1)(c)(16) and he shall be awarded compensation under other applicable or appropriate sections of the Workmen’s Compensation statutes dealing with compensation. This court is of the opinion that there was ample evidence before the board to justify the application of KRS 342.730(1)(c)(27).

Next, counsel for Pennington and its insurance carrier, argues that the award to Winburn exceeded the limitation imposed by KRS 342.740(1). That is simply not so. At the time of Winburn’s injury, the average weekly wage of the state was $135.01. KRS 342.740(1) provides that the maximum weekly income benefit shall not exceed 60% of the average weekly wage of the state. Since 60% of the average weekly rate is $81.00, the board’s award of $39.25 per week is less than the maximum. Pennington and its insurance carrier argue that the sum of $81.00 must be multiplied by the percentage of disability (20%) which would award Winburn the sum of $16.20, and that the board erred in not so doing. This court is of the opinion that KRS 342.740 imposes no such limitation. Since the award of $39.25 per week to Winburn is under the maximum of $81.00 per week, the board’s award was proper.

Accordingly, the judgment is affirmed.

All concur, except REED, C. J., and PAL-MORE, J., who dissent.

PALMORE, Justice

(dissenting).

KRS 342.730(1)(b), as it applies to this case, provides that compensation shall be 62½% of the claimant’s average weekly wage ($314), “subject to the limitations contained in KRS 342.740 [$81], multiplied by the percentage of disability [20%] . .” The question is whether the $81 limit contained in KRS 342.740 applies to 62½% of $314 ($196.25) or to 20% of that figure ($39.25). The critical phrase, “subject to the limitations contained in KRS 342.740,” is set out in commas after the words, “The compensation . . . shall be 55% of the average weekly earnings [plus 2.5% for each dependent up to three],” and before the words, “multiplied by the percentage of disability,” etc. Assuming that the drafter of the statute had some degree of proficiency in the use of the English language and had a conscious reason for this placement of the “subject to” phrase, it can mean only that the $81 limitation of KRS 342.740 applies to the percentage-of-wage figure, and not to the fraction of that figure represented by percentage of disability. I am therefore convinced that the majority opinion does not comport with the statute, for which reason I dissent.

REED, C. J., concurs in this dissenting opinion.

      . The board computed the award to be $39.25 per week by multiplying Winburn’s weekly wage of $314.00 by 62½ by 20% (the disability awarded Winburn). $314.00 x .62½ x 20% = $39.25.


author: STERNBERG, Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT FOR NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION, Respondent, v. Frank MAYNARD et al., Movants.
    Supreme Court of Kentucky.
    April 30, 1976.
    Robert F. Stephens, Atty. Gen., Thomas H. Glover, Sp. Asst. Atty. Gen., Frankfort, for respondent.
    C. Kilmer Combs, Pikeville, for movants.
   STERNBERG, Justice.

In this proceeding Frank Maynard, Maxwell Maynard, Bill Maynard, and Claude Maynard, pursuant to CR 65.07, move the court for relief from a temporary injunction issued by a judge of the Franklin Circuit Court on February 12, 1976.

On December 5,1975, the Department for Natural Resources and Environmental Protection of the Commonwealth of Kentucky filed a complaint in the Franklin Circuit Court against movants charging them with strip mining without having secured a prior permit. The demands of the complaint are for $1,000 per day damage and for a restraining order and temporary and permanent injunction. Simultaneously with the filing of the complaint, a restraining order was issued. On December 22, 1975, the answer was filed, which is a traverse and a charge that the complaint fails to state a cause of action. On January 26, 1976, a motion was made to dissolve the restraining order. An evidentiary hearing was held on February 9,1976, and on February 12,1976, a temporary injunction was issued against the movants.

In the present proceeding several issues are presented. However, it is only necessary that we discuss two of them.

First, the movants charge that the sole issue before the circuit court on February 9,1976, was their motion to dissolve the restraining order, and since respondents had no motion for a temporary injunction pending, the circuit judge had no alternative but to discharge the restraining order.

CR 65.03(5) provides that a restraining order shall remain in full force and effect until “(1) the time set for a hearing on a motion to dissolve the restraining order unless there is then pending a motion for a temporary injunction, or (2) the entry of an order on a motion for a temporary injunction, * * *The rule is clear that if there is no motion for a temporary injunction pending at the time set for the hearing on the motion to dissolve the restraining order, it is automatically dissolved with or without an order of the court. The better practice, however, dictates that an order should be entered dissolving the restraining order.

It is suggested by counsel for respondent that since the demands of the complaint seek a restraining order, a temporary injunction, and a permanent injunction, this would be sufficient to substantially comply with the requirement of a motion for a temporary injunction. Not so. The subject is dealt with in Clay, Kentucky Practice, 3rd Ed., CR 65.03, Note 9, page 345, as follows:

“For practical purposes, the Rule places the burden on plaintiff to establish his right to interlocutory injunctive relief upon a hearing of which notice is given. Consequently, if he desires temporary relief pending a decision on the merits of his claim, he should either proceed immediately after the filing of the suit to obtain a temporary injunction, or, having obtained a restraining order, if he waits until the defendant has made a motion to dissolve it, he should serve a motion for a temporary injunction to be heard at the same time. Unless he does this, the restraining order is automatically dissolved when the motion to dissolve comes on for hearing. Actually there is nothing to be heard on such motion if the plaintiff has been given proper notice and he has not countered with a motion for a temporary injunction. However, it would be better practice to have the order of dissolution entered at any time a party is entitled to it.
If a party moves to modify a restraining order, apparently it would be continued by the court’s order as a restraining order (whether the relief requested was granted or denied), and as such would still be governed by this Rule.”

Movants complain that the trial judge did not file findings of fact and conclusions of law.

CR 52.01 provides that “ * * * in granting or refusing temporary injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its actions. * * * ” The requirement is mandatory and no reason has been shown to excuse the filing. Albeit there were no findings of fact and conclusions of law filed, none were necessary because there was no motion for a temporary injunction pending before the judge to confer jurisdiction for such action.

We are of the opinion that the trial court erred (1) in not dissolving the restraining order, since no motion for a temporary injunction had been filed by the time the motion to dissolve the restraining order was heard, and (2) in having a hearing and issuing a temporary injunction when no motion for a temporary injunction was pending.

All concur.


author: PER CURIAM.

text:
    KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Duane Lee VINCENT, Respondent.
    Supreme Court of Kentucky.
    April 30, 1976.
    Carroll M. Redford, Sr., Glasgow, Leslie G. Whitmer, Director, Kentucky State Bar Ass'n, Frankfort, for complainant.
    Hugh O. Skees, Raymond R. Vincent, Dale T. Wilson, Vincent & Skees, Florence, for respondent.
   PER CURIAM.

This is a disciplinary proceeding against Duane Lee Vincent. On March 1, 1974, respondent was charged by an information filed in the United States District Court for the Eastern District of Kentucky with three counts of wilfully and knowingly failing to make income tax returns for the years 1968, 1969 and 1970. 26 U.S.C.S. Sec. 7203. On July 31, 1974, pursuant to a plea of guilty to one count, respondent was sentenced to prison for 12 months. The remaining two counts were dismissed.

These proceedings originally were commenced on August 21, 1974, under the current RCA 3.320, which was not in effect at the time of the commission of the offense (April 15, 1971), to which the respondent pled guilty. The Court of Appeals rule which was in effect at that time was RCA 3.330. On motion of the petitioner and the respondent, the action was remanded, on January 15,1975, to the Board of Governors of the Kentucky Bar Association for proceedings under the terms and conditions of RCA 3.330.

On January 29, 1975, the then president of the Kentucky Bar Association filed a new charge for disciplinary proceedings against the respondent, pursuant to the provisions of RCA 3.140. It is alleged that said conduct of the respondent “constitutes unethical and/or unprofessional conduct and the same is calculated to bring the bench and bar of the Commonwealth of Kentucky into disrepute.” On February 21, 1975, respondent filed an answer which constitutes a general traverse; states that the severity of the sentence has been appealed to the United States Court of Appeals for the Sixth Circuit and that these proceedings should be dismissed or at least deferred until the appeal has been finally adjudicated; denies that on April 15,1971, there was any provision of the laws of Kentucky for the disbarment of an attorney solely on the basis of a criminal conviction; and says that the offense charged is not a serious misdemeanor and did not involve dishonesty or stealing.

Evidentiary hearings were held by the trial committee on April 25, 1975, and on May 22, 1975. As a preface to and at the time of the first hearing, inquiry was made by counsel for the respondent as to which rule the proceedings were under. They were, thereupon, advised that the proceedings were under RCA 3.140, to which procedure respondent objected.

RCA 3.140 and RCA 3.330 were both in effect at the time of the commission of the offense. RCA 3.140 was directed at proceedings against an attorney who may have been guilty of unprofessional conduct. RCA 3.330 was directed at proceedings against an attorney who had been convicted of a criminal offense involving moral turpitude.

Respondent challenges the right of complainant to proceed against him under RCA 3.140, since the action had been remanded for proceedings under RCA 3.330.

From 1948 until July 2, 1971, there was no provision in our law for disbarment of an attorney solely on the basis of criminal conduct per se. Kentucky State Bar Association v. Taylor, Ky., 516 S.W.2d 871, 872. Thus, our RCA 3.330 and RCA 3.140 were the only rules, at the time the offense was committed, which provided for disciplinary proceedings. The provisions of one are not inconsistent with the other, but each is complementary to the other. The Board elected to proceed under the latter rule and no prejudice has been charged or shown to exist by reason of that action. The remand for proceedings under RCA 3.330 was not a denial of the right of the Board to proceed under RCA 3.140.

Respondent charges that the offense of which he was convicted is not one involving moral turpitude.

Beginning with the case of Kentucky State Bar Association v. McAfee, Ky., 301 S.W.2d 899, we have held that a conviction for failing to file a federal income tax return does not involve moral turpitude. Even though we have held there is no moral turpitude involved in failing to file income tax returns, this conduct is not condoned by this court and we have publicly condemned the practice. Kentucky State Bar Association v. McAfee, supra.

This court is advised that respondent’s appeal has been dismissed and that at this time he is serving his sentence. His request that this case be held in abeyance until his appeal of his criminal conviction is determined is now moot.

In an effort to present extenuating circumstances attending respondent’s position, he was permitted to introduce much testimony and he was permitted to testify freely and at length of and concerning his personal and family-related matters, as well as testify in detail concerning his professional conduct. Respondent is 47 years of age, married, and has four children, one of whom is chronically ill. He has been in the active, general practice of law since September, 1964, and for many years served as counsel to the Boone County Planning Commission. Respondent states that he did not realize the severity of failing to file tax returns; that he has cooperated completely with agents of the Internal Revenue Service; that he had no intention of defrauding the United States Government; that all tax returns for the three questioned years, all years prior thereto, and all subsequent years have been duly filed; and that all taxes, penalties, and interest have been duly paid. Respondent produced several witnesses whose testimony corroborated respondent’s regarding his personal concern for, his devotion of time to, and money spent on his seriously ill son, and they gave respondent a characterization of honesty, integrity, and high respected legal ability. Each witness expressed that in his opinion respondent’s conduct did not lower his opinion of lawyers in general or of his opinion of respondent. At the commencement of the hearing respondent’s counsel made this statement:

“By way of opening statement then, our case will be that we can’t deny that the tax return was not filed. We wish to present circumstances which we feel will be in mitigation. We also wish to have the Committee consider the fact as to the state of the law at the time this offense was committed in making its recommendation. That is our statement.”

The trial committee filed a minority and a majority report. The majority report found that Vincent’s conviction was of a crime that involved moral turpitude; that the offense constituted unprofessional and/or unethical conduct; and that he should receive a public reprimand. The minority report found that the offense did not involve moral turpitude; that his conduct was calculated to bring the bench and bar into disrepute; and that he should receive a private reprimand. However, the Board of Governors did not adopt either the majority or the minority report. It found that Vincent was guilty of unprofessional and/or unethical conduct by having committed an infamous crime, and it recommended a six-month suspension from the practice of law.

We have long extended the arm of patience and understanding to members of our legal profession when they have been subjected to disciplinary proceedings. It may be that we have defined the limits of conduct too broadly in speaking in subjective terms such as “conviction of an offense involving moral turpitude or of being convicted of a serious misdemeanor or a felony.” In any event, the real criterion is and should be whether the attorney is guilty of such unprofessional and unethical conduct which is calculated to bring the bench and bar into disrepute. It is beyond cavil that an attorney who is convicted of an offense involving moral turpitude, or who is convicted of an intentional and serious misdemeanor, or who is convicted of a felony, is guilty of such conduct as is calculated to bring the bench and bar into disrepute. Respondent was permitted, without limitation, to fully indulge himself in the introduction of evidence to support his position in his effort to build up and make realistic his claim of extenuating circumstances. He is an officer of the court (Kentucky State Bar Association v. Taylor, Ky., 482 S.W.2d 574), and it is his duty — yes, even more so, it is his responsibility — to conduct his personal and professional life in a manner as to be above reproach. Is this too much to ask of any attorney? We think not. Other than one’s own confidante, no person occupies such close relationship to the general public as do the members of the legal profession. It is the attorney to whom the intimacies of family relations are confided; it is the attorney who is entrusted with advising as to the management and disposition of the family estate; it is the attorney who is entrusted with the protection of our constitutional and statutory rights. Such a burden resting upon the members of the legal profession must not be taken lightly.

“ * * * that you will faithfully execute, to the best of your ability, the office of attorney at law * * * ” are not idle words, to which all attorneys have pledged their allegiance. The conduct of even one attorney which would embarrass the legal profession will not be tolerated.

While we do not find that the conduct of respondent constituted an infamous crime, as found by the Board of Governors, we do conclude that the respondent’s conduct constituted unethical and unprofessional conduct. (63 A.L.R.3d 512, § 4).

The recommendations of the Board of Governors are accepted. The respondent is suspended from the practice of law for a period of six (6) months.

All concur, except REED, C. J., who concurs in result only.


author: PALMORE, Justice.

text:
    Delmer Lee WARE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 7, 1976.

      Jack Emory Farley, Public Defender, Vincent D. Giovanni, J. Vincent Aprile, Jr., Asst. Public Defenders, William M. Radi-gan, Legal Asst., Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., Guy C. Schearer, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

On a Saturday night in November of 1971 three young women named Dorothy Mason, Marlene Mason and Katheryn Mason got into an automobile with three young men named Clarence Saylor, Raymond Dick and Ronnie Dick and were taken to the home of Delmer Lee (Jimmie) Ware in Pulaski County. According to the evidence for the prosecution, the girls were forced into the car by Saylor at the point of a shotgun and were unwilling participants in the subsequent events leading to the indictment of Ware, Saylor and Raymond Dick for forcible rape. Other counts in the indictments charged some or all of the men with indecent and immoral practices.

In the proceeding now before us on appeal the counts against Ware for the rape of Marlene and Katheryn and against Clarence Saylor and Raymond Dick for the rape of Marlene were consolidated for trial. All three defendants were found guilty of the respective crimes for which they were tried. Clarence Saylor’s conviction has been affirmed by memorandum opinion. This opinion covers Ware’s separate appeal from his conviction and sentence to 15 years’ imprisonment on each of the two counts on which he was tried.

Our factual summary will be confined to what is necessary to an understanding of the arguments discussed. There being no contest as to the sufficiency of the evidence to support the convictions, the evidence for the prosecution will be accepted as true.

The appellant, Ware, was referred to by Katheryn as “the bootlegger.” Be that as it may, it is certain that the availability of alcoholic beverages was the source of attraction to his home. After the men had done some drinking the entire group, including Ware, proceeded in the same automobile to a cabin on the Piney Grove Road, where the four men took turns having intercourse with each of the girls and then forced them to perform oral sex acts (fellatio). Dorothy escaped for a time, but was picked up on the road and recaptured in the course of a trip to Somerset and back, following which the men continued to subject all three girls to sexual abuse during the remainder of the night. The girls managed to get away the next morning.

Ware denied having accompanied the others to the cabin on Piney Grove Road. His story was that he had loaned his automobile to a lady friend and that after some drinking and dancing and kissing (in which he did not participate) at his house he asked the other men to take him to town to see if he could find his car; that the trip to Somerset was made for that purpose; and that the others took him back home and left him there following an unsuccessful search for his car. This version of Ware’s role in the events of the night was corroborated by Saylor and Raymond Dick. That he was at home all during the latter half of the night was verified by the lady friend, Anna Lou Richardson, who said that shé brought his car there at about 1:30 in the morning and stayed with him until after noon on Sunday. According to the girls, however, the trip to Somerset began at the cabin on Piney Grove Road when the liquor supply ran out and on the way back the men stopped at Ware’s to replenish the supply. Specifically, Katheryn testified that they all returned to the cabin.

Ware’s assignments of error, and our opinions with respect to each, are as follows:

1. Prejudicial error in consolidating for trial the rape charges against Ware, Saylor and Raymond Dick.

RCr 9.16 requires separate trials if it appears that a defendant or the Commonwealth “will be prejudiced” by a joinder of offenses or of defendants for trial. Ware cites the following excerpt from Hoskins v. Commonwealth, Ky., 374 S.W.2d 839, 842 (1964):

“The prevailing rule appears to be that the mere fact that evidence competent as to one defendant but incompetent as to the other may be introduced is not alone sufficient to establish such prejudice as to require the granting of separate trials. Ordinarily there must be some additional factor, such as that the defendants have antagonistic defenses, or that the evidence as to one defendant tends directly to incriminate the other, e. g., one defendant’s admissions directly implicate the other.” (Emphasis added.)

A good deal of tripe has grown up around the question of what sort of prejudice should entitle a defendant to a separate trial. Perhaps the rule itself is not sufficiently explicit. “Prejudiced” means unfairly prejudiced. A defendant is prejudiced, of course, by being tried at all. Despite any contrary inference that might be drawn from the foregoing statement in Hoskins, neither antagonistic defenses nor the fact that the evidence for or against one defendant incriminates the other amounts, by itself, to unfair prejudice. In this instance we do not have antagonistic defenses, so that subject need not be further pursued beyond this observation: That different defendants alleged to have been involved in the same transaction have conflicting versions of what took place, or the extent to which they participated in it, vel non, is a reason for rather than against a joint trial. If one is lying, it is easier for the truth to be determined if all are required to be tried together.

The most common example of improper joinder by reason of testimony pertaining to another defendant arises in connection with a confession that is admissible against one but not the other. This does not occur, however, when all of the evidence against one is equally admissible against the other, or when the evidence in question can be and is excluded by the trial court. Nor does it occur when the offending evidence is such that an admonition will reasonably suffice to limit or exclude its consideration with respect to the defendant against whom it would not be admissible in a separate trial.

In this case the principal evidence that may not have been admissible in a separate trial against Ware consisted of the events that occurred prior to the appearance of the other people at his house. The trial court duly admonished the jury not to consider that testimony as against him. We are of the opinion that the evidence was not of such nature that sensible, fairminded jurors could not be trusted to abide by an admonition. Cf. Rigsby v. Commonwealth, Ky., 495 S.W.2d 795, 798 (1973).

The remainder of the evidence related events, according to the prosecuting witnesses, that took place substantially in Ware’s presence, and we think that all of it was admissible without any admonition limiting its effect. Nevertheless, time and again at the instance of one defense counsel or the other the trial court did exclude or admonish the jury not to consider various aspects of it. For example, at one point the judge gave an admonition not to consider any testimony as to what happened to Dorothy (who did not testify), at another he required Katheryn to confine her testimony to the acts of the three defendants on trial (excluding what was done by Ronnie), and more than once he instructed the jury not to consider the acts of any one of the defendants as substantive evidence against the others. For the reasons hereinafter set forth in our discussion of points 3 and 4, we think these exclusions and admonitions were not necessary at all.

There being nothing in the eviden-tiary aspects of the case to make a joint trial unfair, it was not an error to join the trial of the three defendants on the respective rape charges.

2. Denial of effective assistance of counsel by requiring Ware and Raymond Dick to use the same appointed counsel.

Clarence Saylor was represented by counsel of his own choice. Ware and Raymond Dick having claimed indigence, the trial court appointed another attorney to represent both of them. The appointment of separate counsel in every such case was strongly suggested in Maye v. Commonwealth, Ky., 386 S.W.2d 731, 733 (1965), because even though no conflict of interests may appear in the beginning there is a strong possibility that it may develop at any time. For instance, if one defendant decides to bargain for a guilty plea he becomes a likely adversary of the other, and the single attorney necessarily is caught in the cross-fire. In Maynard v. Commonwealth, Ky., 507 S.W.2d 143, 144 (1975), a conviction was reversed on the ground that one attorney could not properly or adequately represent defendants with antagonistic defenses. Nevertheless, since no conflict of any kind between the positions of Ware and Raymond Dick existed or developed before or during the trial of this case, whatever error may have been committed in requiring them to use the same counsel proved to be nonprejudicial.

We are not impressed by the argument that whereas Ware’s defense was an alibi and Dick’s defense was that none of the criminal acts took place their counsel was confronted with a dual responsibility of significant proportions. As we have seen, there was no inconsistency between the two defenses and no embarrassment of either defendant by testimony of the other.

Nor do we detect in the record any indication that the inability of counsel to cross-examine either of his clients in behalf of the other actually resulted in prejudice or disadvantage.

In fine, the argument on this point is directed entirely at shadows and possibilities that could have materialized but never did. We do not think it would make good sense to reverse the judgment on that nebulous a basis.

3. Prejudicial error in failing to admonish the jury to the effect that evidence of other acts of intercourse by Ware with Marlene following the first of such incidents could be considered only for the limited purpose of corroboration.

It was the theory of defense counsel, and accepted by the trial court, that whereas each defendant was accused of only one rape of each girl but the evidence covered several rapes of each, the Commonwealth was required to elect which act was to be the basis for the prosecution, and that in the absence of such an election it would be presumed to be the first act proved. Cf. Burke v. Commonwealth, Ky., 264 S.W.2d 669, 670 (1954). Hence, it is said, testimony relating subsequent acts of a similar nature must be limited to corroborative purposes, as tending to show a design or a lustful disposition.

As we see it, the law on this subject has become rather unreal. In the first place, the necessity of electing one of several similar acts as the basis for the prosecution would seem to proceed from two main purposes. One is to enable the accused to defend himself, by specifying what and when. The other is to protect him from double jeopardy with respect to the same act. Thus when a defendant has been charged with two or more similar offenses against the same victim it is vital to identify the one for which he is being tried. On the other hand, if the state seeks but one conviction it does not, or should not, really make much difference. In this case, for instance, there was evidence that Ware committed several acts of rape against Marlene Mason during the course of the night. He was indicted for only one of them. We think it would have been perfectly proper and fair for the jury to find him guilty of a single rape against Marlene on the basis of any one or more of the several separate acts proved. As a consequence, however, he could not thereafter be tried and convicted for a second offense of rape based on the same series of events proved in the first case. This is simply a matter of permitting the state to prove its case in the alternative, and we see nothing wrong with it. To the extent that earlier cases may hold to the contrary they are overruled.

The same problem frequently arises in cases of statutory rape, in which several criminal acts take place over an extended period of time and the prosecuting witness quite naturally is unable to recall the specific dates on which they occurred. In such a case technicality reigns over substance when the prosecution must stand or fall on the necessity of selecting and proving that one of those acts was committed at a certain time. It makes better sense for the jury to be allowed to base its verdict on a finding of whether the crime in question was committed at any time during the period specified in the indictment and covered by the testimony of the prosecuting witness, thus eliminating the fatuous song and dance in which the jury is permitted to hear about all of the different criminal acts but is admonished (uselessly, we suggest) not to consider them as “substantive” evidence against the defendant, but only insofar as they may tend to show motive or design, or a lustful disposition on his part, or the relationship of the parties, or to corroborate the witness’s testimony with respect to the offense for which the defendant is being tried. If the state seeks but one conviction out of a series of similar criminal acts against the same victim, all of the evidence of all of the acts might as well be treated as and called substantive evidence. That is how the jury will look at it anyway.

Though not argued by the Commonwealth, the fundamental principle on which the evidence of the other acts committed by Ware was admissible for substantive purposes is that because the whole sequence of criminal events took place without substantial interruption it was in effect a single and inseparable “transaction.” As observed by the late Judge Willis in Shivley v. Commonwealth, 227 Ky. 748, 14 S.W.2d 205, 207 (1929), a similar case, “The series of crimes was so connected and continuous that it could scarcely be related in part . . The commonwealth was not required to [limit] its testimony to any single part of the transaction, but was justified in proving everything that occurred, from the time that the four defendants took charge of the wandering young woman and placed her in appellant’s automobile until the termination of the whole execrable excursion.” See also Nolan v. Commonwealth, 290 Ky. 482, 161 S.W.2d 593, 594 (1942), and Rigsby v. Commonwealth, Ky., 495 S.W.2d 795, 799 (1973).

In order to determine exactly what did or did not happen at any particular stage in the sequence it was necessary that the jury see the entire picture. In short, evidence that provides necessary perspective is competent. That it may incidentally involve other criminal acts does not perforce render it inadmissible. Cf. Wigmore on Evidence, § 218 (3d ed.); Deboe v. Commonwealth, 257 Ky. 792, 79 S.W.2d 236, 239-240 (1935); Farley v. Commonwealth, 263 Ky. 769, 93 S.W.2d 858, 860-861 (1936). Since the admissibility of this kind of testimony does not depend on its relevance to design, motive, or any other subsidiary proposition (Wigmore, supra), it requires no limiting admonition. Our cases indicating otherwise, including Farley, supra, appear to be mistaken in that respect.

4. Prejudicial error in similarly failing to limit the effect of the testimony relating the other sexual acts (fellatio) with Marlene and Katheryn.

What we have just said in discussing point 3 applies equally to all that was done to all of the girls, not only by Ware but by the other men as well, embracing “the whole execrable excursion.” There was no necessity for any admonition.

5. Improper cross-examination by which the Commonwealth’s Attorney elicited from Ware’s alibi witness Anna Lou Richardson that her current place of residence was “upstairs” in the county jail.

Considering Anna Lou’s testimony that she did not do anything for a living, that on the night of the criminal events she could not remember much because she was (as she put it) “about half-juiced,” “half-loaded,” or “half-drunk,” and that she went to bed with Ware and spent the night with him, we cannot think that her being in jail had any depressive effect on the jury’s assessment of her character and credibility. The error, if any, was technical, the prejudice nil. Ware’s ponderous argument centering on Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970), fits the title given by Shakespeare to a more entertaining subject.

6. Improper argument by the Commonwealth’s Attorney in his summation to the jury.

In a word, the argument in question was reasonably appropriate to the circumstances. It may have fudged a mite here and there, but on the whole it was not substantially improper or unfair.

The judgment is affirmed.

All concur.

      . The record does not disclose what charges, if any, were brought against Ronnie Dick. He did not appear at the trial.

      . KRS 435.090, now superseded by the Kentucky Penal Code.

      .KRS 435.105, now superseded by the Kentucky Penal Code.

      . Dorothy Mason resides in Indiana and declined to appear. The record does not disclose what happened to the counts charging Clarence Saylor and Raymond Dick with raping Katheryn.

      . Cf. Williams v. Commonwealth, 277 Ky. 227, 126 S.W.2d 131, 133 (1939); Ashcraft v. Commonwealth, Ky., 317 S.W.2d 179, 180 (1958); Messmear v. Commonwealth, Ky., 472 S.W.2d 682, 684—685 (1971); Rigsby v. Commonwealth, Ky., 495 S.W.2d 795, 799 (1973); Roberson’s New Kentucky Law and Procedure, Sec. 1802.

      . In Rigsby we used the term res gestae, which is rightly deplored by Wigmore. See Wigmore on Evidence, § 218 (3d ed.).


author: PER CURIAM:

text:
    STATE of Missouri ex rel. James E. RINEY et al., Relators, v. David W. MASON, County Clerk of Buchanan County, Missouri, Respondent.
    No. 59370.
    Supreme Court of Missouri, En Banc.
    May 27, 1976.
    John C. Danforth, Atty. Gen. by Clarence Thomas, Asst. Atty. Gen., Jefferson City, for relator.
    Richard A. Heider, St. Joseph, for respondent.
   PER CURIAM:

The state tax commission petitioned for a writ of mandamus requiring the respondent county clerk of Buchanan County to compute and extend taxes for 1975 based on an aggregate valuation of real and tangible personal property as determined by the commission under § 138.390 and § 138.-400(3), RSMo 1969. Sections 137.235, 138.-060 and 138.080, RSMo 1969, impose a duty upon the county clerk to comply.

This case, which has been briefed and argued, is another in a series of cases where there is a reluctance on the part of the county clerk to follow through on computing and extending the taxes so as to meet the aggregate valuation in the county as fixed by the state tax commission, and the outcome is determined by application of the rules and principles set forth in earlier cases. State ex rel. State Tax Commission v. Briscoe, 451 S.W.2d 1 (Mo. banc 1970); State ex rel. Riney v. Anderson, 536 S.W.2d 161 (Mo. banc, 1976). As has repeatedly been declared, the duty of the county clerk to comply with the orders of the state tax commission is ministerial, clear and unavoidable. The fact that the abstract of taxable property originally returned by the clerk to the commission under § 138.390, supra, contained a valuation error of approximately four and one half million dollars which was not discovered by the clerk’s office until the individual tax statements were almost in readiness for mailing does not excuse the clerk from complying with the commission’s order equalizing the valuation. The clerk is required to proceed with extension and computation of taxes on the valuations of real estate at $117,372,660, in compliance with figures set forth in the commission’s amended order of June 27, 1975.

Writ made peremptory.

All of the Judges concur.


text:
    STATE of Missouri at the relation of James E. RINEY et al., Relators, v. W. E. CLOUSE, County Clerk of Saline County, Missouri, Respondent.
    No. 59360.
    Supreme Court of Missouri, En Banc.
    May 27, 1976.
    John C. Danforth, Atty. Gen. by Clarence Thomas, Asst. Atty. Gen., Jefferson City, for relator.
    Rick R. Wilson, Pros. Atty., Saline County, William T. Bellamy, Marshall, for respondent.
   PER CURIAM:

This petition for a writ of mandamus was brought at the relation of the state tax commission. As in State ex rel. Riney et al. v. Mason, Mo., 537 S.W.2d 181, No. 59370, also decided this date, the relator seeks to require the respondent county clerk (here of Saline County) to compute and extend taxes based on an aggregate valuation of real and tangible personal property as determined by the commission under §§ 138.390 and 138.400(3), RSMo 1969. Sections 137.-235, 138.060 and 138.080, RSMo 1969, impose a duty upon the county clerk to comply-

The issues raised in this case, which was submitted on briefs without oral argument, are settled by earlier cases. State ex rel. State Tax Commission v. Briscoe, 451 S.W.2d 1 (Mo. banc 1970); State ex rel. Riney v. Anderson, 536 S.W.2d 161 (Mo. banc 1976). The excuse advanced by the clerk that the letter of July 10, 1975 from the commission which accompanied its report of valuations changes saying that it did not expect the increase to “be put on as a blanket increase, but rather in an equitable manner, decreasing those ratios above the statutory 33⅓%, leaving those now at 33⅓% as is and increasing those which are below the 33½% ratio in order to create equality and fairness in total tax payments” was an order for him to exercise discretion, thus removing him from the reach of mandamus, is not valid. The quoted language was advice directed, of course, at the county board of equalization, which was required to meet on July 14, 1975, § 138.010, RSMo 1969, and to which the clerk was required to deliver the report of the commission, § 138.400(2), RSMo 1969. The clerk’s duties remained unchanged and are ministerial, clear and unavoidable. Respondent is ordered to compute and extend the taxes for 1975 upon valuations which in the aggregate are not less than the $46,-424,159 figure on real estate set by the relator in its order of July 10, 1975.

Writ made peremptory.

All of the Judges concur.


author: SWOFFORD, Judge.

text:
    In the Matter of W_ K_ M_, a minor under the age of 14 years. L_ W_ H_, Petitioner, v. W_ E_ M_, Respondent.
    No. KCD 28237.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.

      James S. Formby, Kansas City, for petitioner.
    Thomas E. Allen, Liberty (Hale, Kincaid, Waters & Allen, Liberty, of counsel), for respondent.
    Before PRITCHARD, C. J., and SHAN-GLER, DIXON, SWOFFORD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   SWOFFORD, Judge.

This proceeding was instituted in this court on September 4, 1975, by the filing of a petition for habeas corpus by the natural mother of W_K_M_, a male, then twelve (12) years of age, who she alleged was presently in the physical custody of his natural father and who was being illegally restrained from returning to the mother under the terms of certain contractual obligations between the mother and father; that the father and mother were not (and had never been) married to each other; and, that the father for numerous stated reasons was unfit to have custody of the child. The parents and the child all are residents of Clay County, Missouri.

On September 5, 1975, this court, deeming the allegations of the mother’s petition sufficient for further inquiry, issued its writ and ordered the father to produce the body of the child before this court on September 8,1975. On that day, the father did appear, produced the child, and filed his Return to the Writ of Habeas Corpus and his Motion to Dismiss, in which he admitted that the child was in his physical custody; asserted that the right of custody of the child had never been the subject of any decree or order of any other court; that the contract, with the mother, placing the custody in her, was illegal, void and unenforceable; that he was a fit and proper person to have permanent custody of the child and was its natural father and thus had legal rights to custody equal to its natural mother; that the child wished to remain in the father’s custody; that the child’s interests and welfare were best served by an award of permanent custody to the father; that the mother, for numerous factual reasons alleged, was unfit to have custody of the child; and, prayed this court to award him custody of his son.

On that same date, this court, sitting en banc, heard from counsel, viewed the child and its natural parents, and determined that there were obviously factual issues of complex character. Accordingly, this court entered its order on September 8, 1975, awarding temporary custody of the child to the mother-petitioner, and appointing the Honorable R. Kenneth Elliott, Judge of the Circuit Court and Juvenile Judge of Clay County, Missouri, as Special Master under Rule 68.03, Rules of Civil Procedure, which order states, in part:

“ORDER
Said W_ K_ M_, having been this day produced to this court in obedience to the writ of habeas corpus issued herein, and return having been filed, it is ORDERED, that the temporary custody of W_K_M_be remanded to petitioner, L_W_H_, pending the determination of the legal issues herein, as hereinafter ordered and directed, and that petitioner shall not remove said W— K_M_from the State of Missouri, pending said determination, and
IT IS FURTHER ORDERED, that the Honorable R. Kenneth Elliott, Judge of the Juvenile Court of Clay County, Missouri, at Liberty, be and he is hereby appointed as special master herein pursuant to Rule 68.03, with directions to hold an evidentiary hearing on the issues herein and to make findings of fact and conclusions of law and report the same to this court, together with costs, including the preparation of a transcript of the proceedings.
Dated this 8th day of September, 1975.
/S/ Jack P. Pritchard_ Jack P. Pritchard, Chief Judge”

On September 8, 1975, this court also appointed the Honorable Jerome E. Brant, a member of the Clay County Bar, as Guardian ad Litem for the minor, W_ K_M_

On September 10, 1975, Special Master Elliott set an evidentiary hearing for September 17, 1975. On September 15, 1975, Jerome E. Brant filed his formal entry of appearance as Guardian ad Litem and requested that the Master require strict proof from the mother-petitioner. On that same day, September 15, 1975, the mother-petitioner filed her Reply to the father’s Return, in which she admitted all of the basic facts above mentioned, but again asserted in numerous areas the father’s unfitness to have permanent custody of the boy, and with equal vigor asserts her fitness and ability to have permanent custody. The issues thus drawn ultimately resolve to the basic fact as to what will best serve the interests of the child and the determination of this required a searching and careful exploration into and meticulous sifting of a multitude of evidence. Accordingly, Special Master, Judge Elliott, conducted an evi-dentiary hearing on September 17, 1975, in a most thorough and able manner, and caused to be made a complete transcript of the evidence, which, together with his “Report of Special Master” and various exhibits, were filed with this court on October 14, 1975. In his report, which will be set forth in more detail herein, the Special Master found that the care and custody of W— K_M_should be placed in the natural father, with reasonable visitation rights to the mother. On December 18, 1975, the Guardian ad Litem filed his report with this court, in which he made the same recommendations as to custody. The case was argued before this court on January 26, 1976 and taken under submission.

Some preliminary statements as to the jurisdictional and procedural elements of this matter are appropriate. This court has absolute original jurisdiction in this ha-beas corpus proceeding, Article 5, Section 4(1) Constitution of Missouri; Ex Parte Hagan,, 295 Mo. 435, 245 S.W. 336, 337[1] (banc 1922); Reiter v. Camp, 518 S.W.2d 82, 83-84[1] (Mo.App.1974). This jurisdiction carries with it the concomitant power and obligation to determine the respective rights as between the natural parents of W_K_ M_ under the issues and evidence now reviewed. Rule 91.60, Rules of Civil Procedure; Ex Parte Lofts, 222 S.W.2d 101, 104-106[1, 2] (Mo.App.1949). However, as in all such proceedings, the welfare of the child is and must be the prime and overriding consideration and the rights and claims of the parents are and must be of secondary importance. E.W. v. K.D.M., et al., 490 S.W.2d 64, 67[5, 6] (Mo. banc 1973); Stockton v. Guthary, 415 S.W .2d 308, 311[1, 4] (Mo.App.1967). Neither is this court bound by an extrajudicial agreement between the parents, such as the “Property Settlement Agreement” here involved, purporting to give absolute permanent custody of W_ K_ M_ to the natural mother. Ex Parte McCarter, 434 S.W.2d 14 (Mo.App.1968). Custody of infants cannot be bartered and traded as goods in the marketplace, so as to foreclose a judicial determination as to the present welfare and best interests of the child.

While little procedural or practical problems would be encountered in habeas corpus proceedings of this nature brought at the trial court level, such difficulties are, of course, immediately apparent at the appellate court level. Courts, such as this, before September 1, 1972, had no physical, financial or practical means to accomplish the necessary development of the facts and evidence required to determine the area of the best welfare of the minor nor the respective rights of the parents in a case such as the one at bar.

However, the Supreme Court of Missouri wisely corrected this schism and filled this gap by adopting Rule 68.03, Rules of Civil Procedure, on February 1, 1972, to be effective September 1, 1972, providing for “Masters in Appellate Courts”. It is under Rule 68.03 that the court and Special Master Elliott proceeded in this case. By this means, a full evidentiary hearing was had, the parties were given full opportunity to be heard; to be represented by counsel therein; to present witnesses and offer documentary evidence; and, to cross-examine adverse parties and witnesses. All of the relevant issues of fact were thus fully presented and preserved by a full transcript filed here with the findings of fact of the Special Master.

So far as counsels’ briefs and independent research disclose this is the first case in an appellate court of this state involving the procedures authorized and delineated by Rule 68.03. At the very threshold of decision the effect of and the weight to be given to the Special Master’s findings and recommendations must be determined.

Rule 68.03 was, in general, modeled after Rule 53 of the Federal Rules of Civil Procedure providing for the appointment of masters in the United States District Courts, which rule, so far as the scope of review is concerned, has been held by federal deci-sional law to also apply to federal appellate courts. Michelsen v. Penney, 135 F.2d 409, 414[1] (C.C.A.2— 1943); National Labor Relations Board v. Remington Rand, Inc., 130 F.2d 919, 925[1] (C.C.A.2—1942). Rule 53(e)(2) provides that in non-jury matters, the Special Master’s findings of fact shall be accepted “unless clearly erroneous” by the district (or appellate) courts. As a result, an impressive body of federal decisional law has developed wherein the courts, while properly refusing to abdicate any judicial functions upon receiving a master’s report, have applied the “clearly erroneous” test so as to adopt such report, unless a review of the evidence and law results in a firm and definite conviction that the master is wrong or that “a mistake has been made”. O’Rieley v. Endicott-Johnson Corporation, 297 F.2d 1, 5[2] (C.C.A.8—1961); Locklin v. Day-Glo Color Corporation, 429 F.2d 873, 876[1, 2] (C.C.A.7—1970); Flour Corporation v. Illinois Power Company, 326 F.2d 374, 381[1] (C.C.A.7—1964); Hilliard v. Hollins, 290 F.2d 263, 265[2, 3, 4] (C.C.A.6—1961); National Labor Relations Board v. Remington Rand, Inc., supra, at 1.c. 925[1].

Our Rule 68.03 does not contain such a “clearly erroneous” provision. However, it is obvious that a proceeding thereunder resulting in a Special Master’s Report, findings of fact, conclusions of law and recommendations, in order to give any real meaning to the Rule, should logically be accorded the weight and deference which would be given to a court-tried case by a reviewing court. Both the law and the evidence should be reviewed as in suits of an equitable nature with regard given to the opportunity of the Special Master to have viewed and judged the credibility of witnesses.

The transcript of the testimony and the various exhibits have been carefully reviewed and analyzed, in the light of Special Master Elliott’s report, and his findings of fact, conclusions and recommendations are fully supported by substantial and credible evidence, and were proper. His findings of fact, with minor changes to protect the parties and for clarity, without quotations, are therefore adopted here:

The natural mother, L_ W_ H_, the petitioner in this court, was never married to respondent, the natural father of W_K_M_, the child in question; but the two parents “lived together” for about three years, this relationship terminating in a formal separation capped by the execution of a document admitted in evidence as Exhibit 8. This formal document was entitled “Property Settlement Agreement” and was dated September 29, 1966, and was drawn by an attorney in Independence, Missouri, and provided that the subject child, W_K_M_, “will be in the personal custody and control of L_ W_ R_ R_,” (L_W_H_here) along with a provision for the payment of $60.00 per month for child support. Other provisions contained in said agreement were not relevant or material to this hearing.

The natural mother, L_ W_, is a woman of 35 years of age, and may be described as diminutive. After dropping out of school in the 10th grade, she was married at the age of 17 to one R_, whom she divorced about five years later. Two girls, T_ and M_, were born of this marriage, and the petitioner presently has custody of these girls, presently of the ages of 16 and 14. After the three-year stint with the respondent, petitioner again married one P_ in 1966 and was divorced therefrom in 1968, with no children resulting.

Petitioner then married one Danny Little Bear in 1969, and divorced him the following year, in 1970, in Jackson County, Missouri. Danny Little Bear is a professional wrestler by trade. Petitioner then married J-H — , who gave her her present name, in 1972, and petitioner testified she is going to divorce Mr. H_, who is presently incarcerated in the penitentiary at Lansing, Kansas. Mrs. H_ presently lives in the T_apartment complex in Gladstone, Missouri, and she testified her rent was $255.00 per month, which included her utilities. She receives about $300 a month income from Social Security, Aid to Dependent Children, food stamps, and child support from the respondent. The report of the social investigation by the deputy juvenile officer Martin indicated the apartment was beautifully decorated, with lovely furniture and appointments.

The respondent came to this area from Maysville, Missouri. He is a handsome, wavy-haired man, * * *. He is rather soft spoken, and he and his present wife, B_, operate a store in Liberty, Missouri, named “Party Place Liquor”. He resides also in the City of Gladstone, and in the same high school territory as petitioner. In other words, the school district lines for the particular school to be attended are the same for the petitioner as for respondent, in relation to their residence addresses. Respondent lives in a $65,000 single-family residence with a heated swimming pool in the rear. Respondent has been married to B_ M_ since 1967 and they have no children born of this marriage, except that B_has a child from a former marriage living with them, a girl, age 15, and the respondent has a child from a former marriage named T_ L_, who lives in respondent’s home, who is 17 and a senior in high school.

Pursuant to the order of the Special Master, Marilyn Martin, a deputy juvenile officer of the Clay County Juvenile Justice Department, prepared a report of her investigation dated September 16, 1975, and appeared as a witness, along with Mrs. Helen Frye, the Juvenile Officer of Clay County, Missouri, who testified regarding contact of the Clay County Juvenile Department with these families.

The evidence in this case demonstrates that petitioner has experienced an unsettled and varied life, engaging in several marriages, interspersed with liaisons. In 1971, she married a man by the name of M-, also known as S_, in New Orleans, which marriage was annulled according to petitioner. In addition, when K- (W-K_M_) was about five years old, she spent some time in Hawaii in association with a man named S — , during which period K_(W_K_M_) lived with his father for about a year.

Respondent has faithfully made the support payments as specified in Exhibit 8, and since his present marriage to B_in 1967, has established a relatively stable home, taking into consideration the problems of B_⅛ children by a former marriage.

Both petitioner and respondent profess their love and concern for K_ (W_ K_ M_), and an examination of K_ (W— K M ) in chambers with counsel present disclosed that K_(W_K_ M — ) desires to live with his father. In determining this question, your Master has kept in mind the provisions of Section 452.-375 RSMo 1969, Laws 1973, which is the latest guidance by the Legislature on factors to be used in determining the custody of a child. K_(W_K_M_) testified about his mother taking him to the penitentiary to visit her present husband, H — , and also to incidents regarding his mother’s use of a gun and the fact that his mother occasionally erupts and likes to break things. The fact that K_ (W_ K— M ) sleeps with his 14-year-old sister is an arrangement which will cause increasing problems as K_ (W_ K_ M — ) gets older; and the arrangement at the father’s house is much better for K_ (W_ K_ M_). K_ (K_ W_ M — ) seems to enjoy the opportunity to visit with his paternal grandparents in Maysville, and the relationship of K_ (W-K_M_) with his father and stepmother seems to be somewhat better adjusted than with his mother and two half-sisters. His mother is continuing to see various men, and her health is such that the problems of a rapidly developing 12-year-old boy, along with the two girls which she has, indicate that it would be to the best interest of K_(W_K_M_.) to live with his father. The adjustment would be minimal, as he would attend the same junior high school and this arrangement would afford KÁ_ (W_ K_M_) the influence and fatherly guidance that he is going to need in the next few years of maturation. The mother testified she was completely disabled and was drawing disability from her Social Security, and according to the evidence, she is not quite making ends meet, especially with the burden of K_ (W_ K_ M_).

It is therefore the decree and mandate of this court that the care and custody of W_K_M_, the minor male, natural son of the petitioner L_W_H_and the respondent W_E_M_, be and is hereby placed with the father, W_l. E_ M_, under our writ herein, and that the physical custody of said minor be immediately and forthwith transferred to the natural father, W_ E_ M_, with all and sundry concomitant legal rights and obligations flowing to the father and to the son, consistent with such relationship as legal father and son.

It appears to the court that Special Master Elliott has incurred expenses incident to this court’s appointment and his necessary functions thereunder. This court finds that such expenses are properly chargeable to such party hereto as may be directed. Rule 68.03(a). It is therefore ordered that the respondent, W_ E_ M_, forthwith pay the following sums to the following persons, as allowances for the necessary costs and expenses of the Special Master:

To-Calvin W. Hawkins, Certified Court Reporter, Liberty, Missouri-Cost of Transcript $297.70
To-Jerome E. Brant, Guardian ad Litem, Liberty, Missouri $800.00

and W_E_M_is further ordered to file with the Clerk of this Court appropriate receipts evidencing the payment of these expenses.

All concur.