author: HARBISON, Justice.

text:
    CONTINENTAL INSURANCE COMPANY, Appellant-Defendant, v. EXCEL INSURANCE COMPANY, Appellee-Plaintiff.
    Supreme Court of Tennessee.
    Oct. 12, 1976.
    William N. Groover, Knoxville, for appellant-defendant.
    Louis C. Woolf, Knoxville, for appellee-plaintiff.
   OPINION

HARBISON, Justice.

This is an action in which proration of alleged overlapping insurance coverage was sought by appellee Excel Insurance Company. The trial court allowed recovery, and this appeal ensued.

The facts of the case were stipulated in the trial court, and no testimony was offered by either party, other than that contained in the stipulation and in the exhibits thereto.

According to the documents in the record, Herndon Motor Lines and/or Crandel B. Herndon operated as a common carrier in interstate commerce. That company held by a permanent, or long-term, lease a certain tractor which was “trip-leased” on June 8, 1973 to Central and Southern Truck Lines, Inc., also a certificated interstate motor carrier.

This trip lease provided:

“Lessee shall have dominion, and supervision, and control over the above-described equipment (except that lessee reserves the rights to sub-lease said equipment) during the term of this lease, and shall insure the leased vehicle for public liability and property damage.”

The trip lease shows the point of origin as Montgomery, Illinois, and the destination as Greensboro, North Carolina. The vehicle identified in the trip lease, according to the stipulation of the parties, “broke down en route and was replaced by Herndon Motor Lines with another truck and driver to carry out the terms of the lease agreement.”

It was further stipulated that on June 11, 1973 the substitute leased vehicle was involved in an accident with a third party, resulting in third-party injuries and claims. The stipulation states that the accident occurred on Highway 25-70 in Knoxville, Tennessee, and the Court assumes that the site of the accident was on an authorized route within the operating authority of the lessee carrier.

It was stipulated that Excel Insurance Company had issued a general liability automobile policy providing coverage to the lessee, Central and Southern Truck Lines, Inc. as the named insured. Under the terms of the policy omnibus coverage was extended to the driver, according to the stipulation.

It was further stipulated that The Continental Insurance Company had issued a policy of liability insurance covering the lessor and that its terms also extended coverage to the driver at the time and under the circumstances of the accident.

A settlement made by Excel of the third-party claim was stipulated to be reasonable, and this action was brought on behalf of that carrier to recover all or a part of the loss from Continental, the carrier of the lessor.

The policies in question and all pertinent endorsements were issued prior to May 7, 1973. Otherwise the case would be controlled by the terms and provisions of T.C.A. § 56-1164(c) which expressly makes the coverage of the lessee primary and that of the lessor excess with respect to a motor vehicle operated under a written lease agreement, where the lessee contracts to provide liability coverage. Clearly, if the statute were applicable to the stipulated facts, the carrier of the lessee would be primarily liable for the amount of the loss, up to its policy limits, and it would not be entitled to pro rata contribution by the carrier of the lessor.

Since the statute is inapplicable to the present case, however, the trial court deemed the issues to be controlled by a number of Tennessee cases arising before the effective date of the statute. In these cases this Court had held that where there were conflicting or repugnant insurance clauses in two or more policies covering the same risk, the repugnant clauses would be deemed ineffective, and the insurance carriers would be required to prorate the loss according to their respective limits. See State Farm Mutual Ins. Co. v. Taylor, 511 S.W.2d 464 (Tenn.1974); Continental Ins. Co. v. Insurance Company of North America, 224 Tenn. 306, 464 S.W.2d 709 (1970); United Services Automobile Association v. Hartford Accident & Indemnity Co., 220 Tenn. 120, 414 S.W.2d 836 (1967). These decisions were based upon the terms of the policies themselves, and not the provisions of any lease agreement between the insured parties. See Transamerica Insurance Co. v. Parrott, 531 S.W.2d 306, 314 (Tenn.App. 1975).

We have examined with care the provisions of the two insurance policies exhibited to the stipulation in the present case, however, and we do not find that they are repugnant or in conflict. For that reason, we are of the opinion that the pre-1973 cases are not applicable, and that the appellant is not entitled to the proration which it claims.

We have already pointed out that each of the policies in question was issued to motor carriers engaged in the transportation of . property. The policy issued by Excel Insurance Company provided coverage commencing July 1,1972, and under the provisions of the original policy, the leased vehicle in the present case would fall within the definition of a “hired automobile”. The policy expressly provided that with respect to a hired automobile or a non-owned automobile, the insurance would be excess over any other valid and collectible insurance available to the insured.

Endorsement No. 2 was issued to this policy, however, entitled “Truckmen — Form B”. This endorsement modifies the provisions of the basic policy, and it substantially alters the original “excess” provisions. It states:

“(f) With respect to any automobile while leased or loaned to any person or organization, other than the named insured, engaged in the business of transporting property by automobile for others, insurance under this endorsement shall be excess insurance over any other valid and collectible insurance available to the insured. Otherwise the insurance under this endorsement is primary insurance.” (Emphasis added).

It is apparent that by this endorsement the Excel policy provided primary insurance to all vehicles owned or operated by Southern and Central Truck Lines, Inc., other than those which it leased or rented out to other carriers. As to the latter, the coverage was excess only.

The policy issued by Continental to the lessor contained an identical provision, to the effect that it provided primary insurance, except to any vehicle leased or loaned to another person or organization “engaged in the business of transporting property by automobile for others.” As to the latter, the Continental policy was expressly to be excess insurance.

Each policy contemplated that its insured would lease vehicles to other carriers. Both policies were on a monthly reporting basis, and under each policy the insured carrier was to pay to the company a premium based upon gross receipts. Endorsements to each policy, however, provided that with respect to equipment leased to other carriers, only fifteen percent of the total amount received for rental of equipment would be used as the basis for computing the premiums. This provision was carried in Endorsement No. 3 to the Excel policy and in a truckmen’s endorsement to the Continental policy dated February 8, 1973.

Accordingly, we are of the opinion that the leased vehicle in the present case was afforded primary insurance by the Excel policy and that the insurance afforded by the Continental policy was excess only. Although both policies admittedly extended omnibus coverage to the driver, we do not find in the basic insuring and premium provisions of the policies that repugnancy or contradiction found by the courts to exist in the cases cited above.

The judgment of the trial court is reversed and the suit is dismissed at the cost of appellee.

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


source: Caselaw Access Project

author: RUSSELL, Judge.

license: Public Domain

text:
    Bruce FRANKS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 30, 1976.
    Certiorari Denied by Supreme Court Sept. 7, 1976.
    H. T. Etheridge, Jr., Jackson, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, John L. Williams, Dist. Atty. Gen., Huntingdon, for appellee.
   OPINION

RUSSELL, Judge.

Bruce Franks appeals his conviction for assault and battery with the intent to commit rape, his sentence being set at three to five years in the penitentiary.

Franks and three other young men picked up three young girls, two aged thirteen and one fourteen, at a skating rink. They kept the girls at the home of one of the boys all night, during which time Franks and Terry Hodges, according to the State’s proof, raped thirteen-year-old Angela Hopper.

The first assignment of error is that the evidence is insufficient to support the verdict and is contrary to the law, but a review of this record reflects that this assignment is meritless.

The second assignment of error complains of the overruling of Franks’ motion for a severance. Franks did not want to be tried with Hodges, and a third co-defendant who was exonerated. Franks was indicted separately from the other two, but the trial judge very properly ordered the charges tried at the same time since the respective offenses were committed at the same place upon the same girl, Franks actually holding her for Hodges to accomplish his purpose. This assignment is without merit.

Franks complains that he was guilty of rape or no crime, and that the verdict was a compromise. We find that the evidence clearly makes out a consummated forcible rape, but the jury in its judgment found that conviction of the included offense would serve the ends of justice. Franks was not prejudiced, and cannot be heard to complain. Craig v. State, Tenn.Cr. App., 524 S.W.2d 504 (1974).

Error is assigned upon the trial judge’s refusal to order a mistrial after each of two improper comments by the victim’s mother. The first occurred when Mrs. Hopper was advised that she could not sit at the counsel table with the prosecuting attorney. She stated, in the hearing of the jury: “They know that I know the truth— that is why they don’t want me to sit here”. The learned, experienced and conscientious trial judge immediately responded by sending the jury out, and carefully explained to Mrs. Hopper why she could not sit at the counsel table, and, inter alia, ordered her not to make any statements to anyone in the presence of the jury. She said that she was sorry, the jury was brought back in, the trial judge carefully instructed them to disregard the statement, and received affirmative assurance from each juror that this instruction would be followed.

The second outburst by Mrs. Hopper occurred during the jury argument of defense attorney Ross. The record shows that: “Mrs. Hopper, mother of victim gets up and starts crying and screaming and says ‘they are all liars, the lawyers are liars’.” Mrs. Hopper was ordered carried out of the court room, and the jury was sent out. Motions for a mistrial were heard and overruled and the jury brought back in and instructed:

“Ladies and gentlemen of the jury, the Court regrets this outbreak. I regret that it did happen in this court, and this court is interested in everyone getting a fair trial, and I want to know at this time if you all can disregard this outburst by Mrs. Hopper, that has occurred here, put it in the back of your mind and give these defendants a fair and impartial trial and have no sympathy one way or the other, and try this case solely and alone upon the testimony presented. Do you think you can do this?”

The judge then polled the jurors separately, and each nodded affirmatively. The court said further:

“Alright, I instruct you then that you will absolutely disregard this instance, and you say that you will, and decide the case solely and alone upon the testimony that has been presented in court.”

We hold that in both instances the trial judge responded in a way to eliminate any possible prejudice from these occurrences. Franks forcibly raped a thirteen year old girl who was an apparent virgin who had not yet even matured into womanhood, causing physical damage that necessitated a week’s hospitalization. Franks was seventeen at the time. He then held her arms until his eighteen year old companion, Terry Hodges, could get atop her. (Incidentally, Hodges did not appeal his conviction.) We judge that no prejudice resulted to Franks from the misconduct of Mrs. Hopper.

The final complaint of Franks, that the testimony of Mrs. Hopper should have been excluded, is without merit, since Mrs. Hopper did not testify.

Affirmed.

WALKER, P. J., and DUNCAN, J., concur.


author: GALBREATH, Judge.

text:
    Bennie NORTHERN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 22, 1976.
    Certiorari Denied by Supreme Court Sept. 20, 1976.

      Hughie Ragan and J. Emmett Ballard, Jackson, for appellant.
    Ray A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, James G. Woodall, Asst. Dist. Atty. Gen., Jackson, for appellee.
   OPINION

GALBREATH, Judge.

This is an appeal from a conviction in the Madison County Criminal Court for murder in the second degree and sentence of twenty years.

The body of Linda Kay Smith was discovered in a Jackson gravel pit on the 4th day of March, 1973, sometime after she had been observed by an acquaintance, Miss Ma-riyln Holliday, at that place, being chased by the defendant and calling for help. When the body was discovered, it was medically determined that the death had occurred some two days before, and was caused by repeated blows to the head by a blunt object. Miss Holliday identified the defendant as the person she had observed with the deceased, and he gave both oral and written admissions after being apprehended and warned of his rights under the guidelines laid out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The defendant testified and denied any complicity in the death of Miss Smith and explained that he had made the admissions involuntarily. The trial judge conducted an exhaustive hearing, out of the presence of the jury, as to the voluntariness of the admissions and found that the defendant had been adequately warned of his rights, and that the statements were not the result of police mistreatment. Inasmuch as the defendant’s father was present and witnessed the reduction of the defendant’s statement to writing, after the execution of a written waiver, the ruling of the trial judge as to admissibility is well founded.

In a prior oral admission, given spontaneously by the defendant while awaiting the arrival of his father, he told Sergeant Norman Pipkin, an investigating officer, that he had killed his girl friend but that, “it was an accident.” The written statement was as follows:

“On Thursday evening, March 1, 1973, I met up with Linda Kay Smith, a girl that I know and me and her got into a fight down in the gravel pit on Madison Street. I remember shoving and slapping her, but I don’t remember covering her up.
After I found out she was dead I felt like maybe I could have done it accidently. I don’t remember killing her but I remember fighting with her. The day it hap-
pened I had been taking Darvon, specs, smoking weed, and drinking whiskey. When I take this stuff it makes me act crazy. If I did this I must have been crazy.
I feel that I need to be sent to a mental institution for a period of time. I am making this statement in the presence of my father, Peter H. Northern and Sergeant N. H. Pipkin.
I have made and read the above statement and it is true and correct to the best of my knowledge.”

In light of the above summary of facts, we have no choice but to overrule the assignments of error challenging the sufficiency of the evidence. The jury was amply justified in rejecting the defendant’s testimony that he had nothing to do with causing the victim’s death, and that his admissions were the result of fear and coercion on the part of the police, and accrediting that of Miss Holliday, who placed him at the place the crime was committed at the approximate time of death, as corroborated by his own admissions. The conflict presented by the diametrically opposed testimony was for the jury to resolve, and it has done so logically. We cannot disturb the jury’s verdict unless we find that the evidence preponderates against it. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173.

We hold that the incriminating statements made by the defendant were admissible, and overrule assignments alleging the contrary. The trial judge not only made a preliminary finding in the approved manner (Hill v. State, 211 Tenn. 682, 367 S.W.2d 460) that the statements were freely and voluntarily made after full and adequate Miranda warnings had been given and a waiver obtained, but he also instructed the jury, after the defendant testified he had been threatened and otherwise mistreated by the police until he made the admissions, that if they found the statements were not voluntary, they should disregard them entirely. This was a proper instruction. See Wynn v. State, 181 Tenn. 325, 181 S.W.2d 332.

We reject the appellant’s contention that the corpus delicti has not been established, independent of the confessions, as the law requires. Ricketts v. State, 192 Tenn. 649, 241 S.W.2d 604. Miss Holliday’s testimony to the effect that she saw the defendant attack the deceased, who was calling for help in the location her body was later found, more than supplies independent corroboration, which need not be weighty:

“Where, as in this case, there is a verdict of guilty by a jury, the verdict having been approved by the Trial Judge, and even though the evidence of corroboration is weak, but is tied to a confession made by the defendant, the verdict will not be disturbed by this Court, for even though the corroborative evidence may be slight, such evidence does not need to be as convincing in establishing the corpus delicti as when no confession exists, as the quantum of proof need not be as great.” State v. Jackson, 506 S.W.2d 146 (Tenn.1974)

During examination of the police officer who interrogated the defendant, it was adduced that, at the time, inquiry was made into a suspected parole violation, growing out of a matter having no relation to this case. Upon objection, the trial judge promptly instructed the jury it could not consider the unrelated matter in determining guilt or innocence. Later, on direct examination, the defendant himself went into some detail as to his status as a parolee from the State of Ohio, in an effort to convince the jury that he was led to believe, by the Jackson police, that he was not under arrest for murder when interrogated about the death of the victim in this case, but because of a suspected parole violation.

It was error for the State to interject the fact that the defendant had a criminal record into this case. Evidence of prior criminal activity, unless relevant to, and probative of some issue at trial is, for obvious reasons, inadmissible. See Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523. However, here, the fact that the trial judge promptly instructed the jury to disregard what appeared to be an inadvertence on the part of a witness for the State, coupled with the elaboration on the objected to information by the defendant for tactical reasons, renders any error harmless.

It was not error, as contended by appellant for the trial judge to charge the jury, inter alia, that one who unlawfully inflicts a dangerous wound . . . from which death might ensue . . . has the burden, if such is his contention, to prove that the death was the result of some other cause not attributable to the defendant. The defendant sought to establish that perhaps the death was accidental, and we believe the charge, which has been approved in numerous cases by our Supreme Court (See Seagroves v. State, 198 Tenn. 633, 281 S.W.2d 644), was proper.

Although the Supreme Court has approved similar charges, we believe it would have been better if the trial judge, in charging the jury, had not instructed it to consider the defendant’s testimony, in light of the fact that he is a party to the suit and interested in the outcome of the trial. Stewart v. State, 484 S.W.2d 77 (Tenn.Cr.App.1972). To date, this instruction has not been considered reversible error.

The judge also gave the general instruction to the jury that they should look to all witnesses’ interest or lack of interest in the outcome of the trial which disposes of appellant’s belated complaint that the judge failed to specifically charge the jury that no instruction was given as to the effect, if any, that the offer of a reward might have had on the witness Holliday.

We have carefully considered all of the assignments of error, and fail to find that any grounds for disturbing the lower courts judgment.

It is affirmed.

WALKER and RUSSELL, JJ., concur.


author: PER CURIAM.

text:
    STATE of Missouri at the relation of the CITY OF ST. LOUIS (Relator) Respondent, v. The JUDGE OF the COURT OF CRIMINAL CORRECTION, DIVISION NO. 2, and The Clerk of the Court of Criminal Correction, City of St. Louis (Respondents) Appellants.
    Nos. 36333, 36334.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 29, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.
    Newmark & Baris, Kenneth Graeber, St. Louis, for appellants.
    Jack L. Koehr, City Counselor, William Kornfein, Asst. City Counselor, St. Louis, for respondent.
   PER CURIAM.

In these two consolidated cases the City of St. Louis sought writs of mandamus to compel the Judge of the Court of Criminal Correction, Division No. 2, and the Clerk of said Court, to set for trial and try two appeals taken from Division No. 1 of the Municipal Court of the City of St. Louis.

There is no dispute as to the facts. Separate informations were filed in the Municipal Court of the City of St. Louis charging Jack Ballard and Anthony Giordano, in unrelated incidents, with peace disturbance. At separate trials in the municipal court the attorney for each defendant sought to have present a privately employed reporter, to be paid by each defendant, to record the proceedings. The judge ordered the reporter to refrain from taking any notes unless the defendant agreed to make a copy of the transcript available, at the expense of the City, to counsel for the City and to the court. In each case the defendant refused. The trial of each case then proceeded before the court without a jury. Neither defendant sought any writ from a superior court to prohibit the municipal court from continuing with the trial of his case without a private reporter present. Each defendant was found guilty. The convictions were appealed to the St. Louis Court of Criminal Correction, and each defendant filed in that court a motion to remand his case to the municipal court based on the refusal of the judge of the municipal court to permit a reporter to record the proceedings without defendants agreeing to supply a copy of the transcript to the court and to counsel for the City. Neither case has been retried.

On September 12, 1973, the City of St. Louis filed these petitions for a writ of mandamus. The circuit court entered its judgment in each case making permanent the alternative writ previously entered, and these appeals followed. We affirm.

An opinion in this case was previously adopted by this court on September 16, 1975. Thereafter, the Missouri Supreme Court ordered the cause transferred to that court, but it was subsequently retransferred to this court for disposition after cognizance had been taken of the opinion in State ex rel. Garrett v. Gagne, 531 S.W.2d 264 (Mo. banc 1975), which was handed down subsequent to the previous decision of this court. The case was again placed on the docket, and the parties have been afforded an opportunity to file supplemental briefs and to present oral argument.

The writs of mandamus were sought against Honorable David W. Fitzgibbon, the then Judge of the Court of Criminal Correction, Division No. 2. We take judicial notice of the fact that Judge Fitzgibbon is not now a judge of that court. Rule 52.13 provides that “When a public officer is a party to an action in his official capacity and during its pendency * * * ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substitute party, * * * an order of substitution may be entered at any time, * * *. When a public officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name, but the court may require his name to be added.” This opinion shall constitute an order directing the substitution of parties, and that the proceedings describe the respondents to the mandamus proceedings by their official title rather than by their names.

Appellants each admit that upon appeal to the Court of Criminal Correction from a conviction in a municipal court he is entitled to a trial de novo. See City of St. Louis v. Moore, 288 S.W .2d 383 (Mo.App. 1956). Therefore, when trial is there held each case is to be heard as if no action had been taken in the municipal court, and the Court of Criminal Correction does not sit as an appellate court to consider alleged irregularities in the lower court.

The issue here presented is whether, after an appeal is perfected and the case is pending in the Court of Criminal Correction, that court may remand the case to the municipal court for retrial.

“The St. Louis Court of criminal correction is a court of record but is of statutory origin,” State ex rel. Kaiser v. Miller, 316 Mo. 372, 289 S.W. 898 (1926), and “it is not a court [which proceeds] according to the course of the common law, and therefore has cognizance of no matters except those intrusted to it by the statutes.” State ex rel. Stinger v. Krueger, 280 Mo. 293, 217 S.W. 310 (1919). As further stated in the Kaiser case, “there are no intendments in favor of its jurisdiction, and no matters are to be held within its jurisdiction except those that expressly appear to be so.”

Section 479.110, RSMo 1969 provides that the Court of Criminal Correction “shall have and exercise exclusive appellate jurisdiction in all cases appealed from the city police courts in the city of St. Louis, and all such appeals shall be taken in the manner and form as prescribed by Section 543.290, RSMo [now superceded by Rule 22.16 (see Rule 36.01)] for misdemeanor cases appealed from the magistrate court, except that the application for appeal shall be filed immediately after judgment.” Rule 22.16 provides that “After a case appealed from a magistrate court [municipal court] has been entered upon the docket of the circuit court [Court of Criminal Correction] * * * the case shall be heard, tried and determined de novo in the circuit court [Court of Criminal Correction] as though the prosecution had originated in such court.”

Notwithstanding this seemingly mandatory language, does State ex rel Garrett v. Gagne, supra, compel a different result? In that case the defendant appealed to the circuit court from a municipal court conviction and then failed to appear at the appointed time for trial. The circuit court dismissed the appeal and remanded the cause to the municipal court for execution of the previously imposed sentence. The Missouri Supreme Court held that pursuant to Rule 37.98 the circuit court could have directed the arrest of the defendant because there had been a breach of the condition of his bond, and also that it “had the discretionary alternative of dismissing the appeal.”

In this case there has been no dismissal of the appeals for the failure of appellants to make themselves available for their requested trials de novo in the Court of Criminal Correction. That court has purported to remand the causes to the municipal court for what it considered to be an irregularity in that court. In so doing it assumed to act in an appellate capacity to review alleged irregularities occurring in the municipal court; a function not within its statutory authority.

We conclude, therefore, that when an appeal to the Court of Criminal Correction has been perfected from a municipal court, and the appeal has not been withdrawn by the appealing party or dismissed by the court, “the case shall be heard, tried and determined de novo in the * * * [Court of Criminal Correction] as though the prosecution had originated in such court.”

We find nothing that implies, much less which constitutes specific authority, that the Court of Criminal Correction may remand a pending case to the municipal court for retrial. Instead, as long as a perfected appeal is pending the authority of the Court of Criminal Correction is to hear, try and determine the case de novo. Therefore, the orders of the Court of Criminal Correction, Division No. 2, in the Ballard case and in the Giordano case remanding the case to the municipal court are nullities because beyond its authority.

The judgment of the circuit court is affirmed.


author: • SMITH, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Horace Edward WILLIAMS, Defendant-Appellant.
    No. 36865.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 29, 1976.
    Motion for Rehearing and for Transfer Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.

      John C. Danforth, Atty. Gen., Preston Dean, - Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for defendant-appellant.
    Joseph W. Warzycki, Asst. Public Defender, St. Louis, for plaintiff-respondent.
   • SMITH, Chief Judge.

Defendant appeals from his conviction of possession of marijuana, a Schedule I Controlled Substance, Secs. 195.020 and 195.-017.2 RSMo 1969, on which he was sentenced to three years imprisonment.

The original indictment charged defendant with two counts, possession of heroin and possession of marijuana, both Schedule I controlled substances. Defendant moved for and obtained a severance of the two counts. He was tried and convicted first on the heroin charge and that conviction was affirmed in State v. Williams, Mo.App.St.L. Dist., filed May 4, 1976, 539 S.W.2d 530.

On this appeal defendant raises five points of error, to wit: (1) the prior conviction for possession of heroin precludes prosecution of the marijuana charge under principles of double jeopardy; (2) the Court erred in denying his motion to suppress evidence because police officers improperly executed a search warrant; (3) the Court erred in admitting into evidence the heroin and syringes seized at the same time and from the same room as the marijuana; (4) the Court erred in failing to give an entrapment instruction; and (5) the Court erred in failing to give an instruction on defendant’s contention that the marijuana was placed in his room by the police.

Point 2 has been thoroughly covered in State v. Williams, supra, and we adopt that discussion and result. Point 3 has also been thoroughly covered in that opinion where defendant contended the marijuana was improperly admitted into the heroin trial. We again adopt that discussion and result.

Defendant’s position on Point 1 is that since the possession of the heroin and marijuana were simultaneous and both are Schedule I controlled substances, a conviction on one bars the other under the double jeopardy provisions. Double jeopardy applies to preclude two prosecutions of the same offense. U.S.Const. Amendment V; Mo.Const. Art. I, Sec. 19. Sec. 195.020 makes it unlawful for “any person to possess . . . any controlled or counterfeit substance . . . ” (Emphasis supplied). The use of the word “any” indicates that each separate substance possessed is an unlawful act. If the legislature had intended that the possession of several Schedule I substances would only constitute a single offense, it could have used words such as “one or more substances” to evidence that intent.

In State v. Gordon, St.L.Dist., filed March 23, 1976, 536 S.W.2d 811, we held that the distribution of the same substance to two different persons at the same time constituted two offenses. We also held that the distribution in the same container of substances controlled by two different schedules constituted separate offenses. There is dicta in that case which might be interpreted to indicate that if the substances had been under the same schedule a different result might have been warranted. But in determining whether one or two offenses occurred, we followed the prevailing rule in Missouri that in order for the offenses to be the same there must be identity in law and in fact. The same transaction rule is not the test of “same offense” in Missouri. State v. Bowles, 360 S.W.2d 706 (Mo.1962). Under Count II it was necessary to establish, in addition to possession, that the substance involved was marijuana and that the substance was a Schedule I controlled substance. Under Count I, it was necessary to establish, in addition to possession, that the substance was heroin and that that substance was a Schedule I controlled substance. The proof necessary under Count I would not have supported the charge under Count II, and vice versa. The substance allegedly possessed was, and would have to be, identified in the indictment or information and established by the evidence. We find this case closely analogous to State v. Whitley, 382 S.W.2d 665 (Mo.1964) which held that a single act caused multiple violations of the same statute, i. e.: manslaughter.

Points 4 and 5 may be treated together. Defendant’s evidence was that a police officer, immediately prior to the arrest, came into defendant’s room and against defendant’s expressed wishes left the three bricks of marijuana in the room when the police officer left the room temporarily. Defendant offered and was refused an entrapment instruction.

The evidence does not support an entrapment defense for two related reasons. First, entrapment involves a situation where the intent to commit the crime is placed into the perpetrator’s head by the conduct of the police. It presupposes that in fact the defendant intended to commit the crime, but that that intent was the product of the police actions. Defendant’s evidence was that he never formed any intent to commit the crime. He was not therefore entrapped into committing the crime. State v. Taylor, 375 S.W.2d 58 (Mo. 1964); State v. Burns, 457 S.W.2d 721 (Mo. 1970). Secondly, the defense normally is inconsistent with the defendant’s denial of the charge. State v. Taylor, supra [4-6]. “Possession” requires that the defendant intentionally and knowingly have the drug in his possession. Defendant’s evidence was that he did not have such intentional, knowing possession. The instruction on entrapment was properly refused.

Defendant contends it was plain error for the court not to give an instruction that, if the marijuana was not the property of defendant but had been placed in defendant’s premises by the police, he should be acquitted. This instruction was not requested, and this matter was not raised in the motion for new trial and so is not preserved. We do not find the failure to so instruct to be prejudicial error creating manifest injustice or a miscarriage of justice. Rule 84.13. The verdict director required a finding that defendant “was aware of the character of the drug and intentionally and knowingly had it in his possession.” This adequately covered the necessary intent in the absence of a request for further instruction, and we do not find any reason to believe the jury was misled or lacked understanding of the elements of the crime.

Judgment affirmed.

NORWIN D. HOUSER and ALDEN A. STOCKARD, Special Judges, concur.

      . See discussion of California position on page 821 of that case. And, see Normandale v. United States, 201 F.2d 463 (5 Cir. 1953).


author: McMILLIAN, Judge.

text:
    Rodney E. WHAN et al., Plaintiffs-Appellants, v. Bertha A. WHAN et al., Defendants-Respondents.
    No. 36914.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 20, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.

      William E. Alberty, Edina, Zenge & Smith, Canton, for plaintiffs-appellants.
    Wasinger & Parham, Hannibal, Goehl, Adams & Schuering, Quincy, Ill., for defendants-respondents.
   McMILLIAN, Judge.

Plaintiffs-Appellants brought suit seeking a declaration of the rights and legal relations of the parties under a contract between the parties. Appellants also sought specific performance of the contract. Defendant-Respondent Bertha Whan filed a counterclaim alleging fraud, misrepresentation, and duress on the part of plaintiffs-appellants in inducing her to enter the contract and sought to have the agreement nullified. A separate jury trial was had on respondents’ legal claim with a final judgment entered on June 27, 1973 for appellants. Respondents failed to perfect an appeal from this judgment. The trial court then took further evidence on appellants’ equitable claim and entered an order on January 9, 1975, setting out the rights and relationships of the parties under the contract. It is from that order that this appeal was taken. We affirm in part and reverse in part.

The controversy which precipitated the filing of this lawsuit arose over an agreement entered into by the members of the Whan family. Respondent Bertha Whan is the mother of appellants Rodney Whan and Homer Whan and of respondents Elmer Whan, Stella Knight and Lois Kurk. Appellants Delah Whan and Pauline Whan are the wives of Rodney and Homer Whan. Respondent Robert Kurk is the husband of Lois Kurk. Upon the death of a brother, Orval Whan, the appellants initiated discussions which led to the signing of the agreement. This agreement provided for all of the assets, which Orval Whan owned at the time of his death, to be placed in a savings account, with the interest going for the support of the mother. From this interest the mother was to receive up to $3,000 semiannually, with the provision for an invasion of the principal to meet the mother’s needs if all of the children agreed to the expenditure. Upon the death of the mother, the remaining funds were to be divided equally among the children.

A dispute arose as to which of the funds held by the various family members were to be placed into the fund. The appellants then filed suit and Bertha Whan filed her counterclaim. In its order setting forth the rights and legal relationships of the parties, the trial court determined that the agreement created an express trust in all property, real and personal, owned by Orval Whan at the time of his death. Mrs. Bertha Whan was the life beneficiary, the children were the trustees and residuary beneficiaries. The primary purpose of the trust was to provide for the care of Bertha Whan until her death.

The court found that $1,658.75 which Bertha Whan received upon reselling tools purchased from Orval Whan’s estate, and $22,-000.00 which Mrs. Whan received as beneficiary of Orval’s life insurance policy, were her own property and not subject to the agreement. The court also found that $6,000 which Bertha Whan had placed in a savings certificate in the names of Orval Whan, Elmer Whan and Stella Knight, was placed with the intention of all the parties that Mrs. Bertha Whan was to retain the beneficial interest therein, and therefore, a resulting trust was declared in favor of Bertha Whan as beneficiary with Elmer Whan and Stella Knight as trustees. These resulting trust funds were, therefore, not subject to the agreement as Orval Whan held only legal title at the time of his death.

The court removed the children as trustees and appointed a disinterested third party as trustee after finding that implacable hostilities existed between the co-trustees and between certain trustees and the primary beneficiary, that there had been a breach of duty on the part of the trustees, and that there was a personal interest in the corpus of the trust on the part of the trustees which conflicted with the interest of the primary beneficiary.

The court’s order also included an accounting of those funds which were subject to the trust agreement and a declaration that Bertha Whan was entitled to all interest accumulated on the trust funds.

Appellants raise eighteen points on appeal. We will consider some of these points together as they raise different aspects of the same issue. In our review of the issues we are guided by Rule 73.01 under which the decree of the trial court is to be sustained unless we find no substantial evidence to support it, or that it is against the weight of the evidence, or that it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Appellants’ first issue is that the trial court erred in entering its decree on January 9, 1975, because it had entered a final judgment on September 21, 1973, and there can be but one judgment in a suit. We find this contention to be without merit. The court tried respondents’ legal counterclaim before a jury and made that judgment appealable. It then took more evidence and entered a decree on appellants’ equitable claims. Rule 66.02 expressly allows this type of separation by a trial court and Rule 81.06 (formerly Rule 82.06) allows a trial court to make such separate judgments appealable. For a second judgment to be void the first judgment must have fully decided and disposed of all of the merits of the cause. State v. Randall, 423 S.W.2d 765, 769 (Mo. banc 1968). The jury verdict in the present case cannot be said to have done this. The granting of separate trials of any claims or issues is discretionary with the trial court and its rulings will be disturbed only if the discretion is abused. B—W Acceptance Corp. v. Benack, 423 S.W.2d 215, 217 (Mo.App.1967). We find no evidence of any such abuse of discretion here.

Appellants’ second point is that the court erred in entering its order of January 9, 1975, after it had found a valid and binding agreement on September 9, 1973, because its later order had the effect of rewriting the contract and nullifying the intent of the parties. In the prayer of their amended petition, the appellants asked the trial court to, “. . . make a finding and declare the rights of the parties under the terms of the contracts. . . .”

While courts cannot rewrite the terms of contracts that are clear and unambiguous, construction is proper when necessary. The contract before the trial court was clear, but there was much disagreement as to the exact property which was to be subject to the contract. The dispute could not be resolved by looking to the document itself. The contract states that, “All property . . . owned by Orval Whan at his death or held jointly by Orval Whan and any of the other children or the mother . . .” would be subject to the agreement. This term required a determination by the court as to which property it was that Orval Whan owned at the time of his death. The determination of which property was owned by Orval Whan was a question of legal fact, not subject to interpretation by the parties. The appellants cannot now, after having requested aid in the application of this contract, be allowed to argue that the court was without the power to make such a decree.

Appellants’ third point is that the court erred in removing Rodney and Homer Whan as trustees because the evidence showed that they had done everything they could to try to get the contract carried out and that the order of the court in removing them penalized them when they were not at fault. Appellants’ points seven, eight, nine, ten, eleven, twelve and fourteen, also involve allegations of error in the removal of the children as trustees and the appointment of a third party as trustee. We will consider these points together. The specific allegations raised by appellants in these points are: that the court erred in finding that it had the power to remove the trustees as this removal defeats the purpose of the parties as expressed in their contract; that there was no evidence that the appellants had breached their duties; that there was no evidence that implacable and settled hostilities existed between the parties; that the court erred in finding the trustees occupied antagonistic relations with the trust property; that there was no evidence that the trustees lacked the capacity to cooperate or agree in the administration of the trust; that the court erred in finding it detrimental to the interest of Bertha Whan for the trustees to act because there is no evidence that she would not be fully protected; that the court erred in appointing a new trustee as this constituted a rewriting of the contract without the consent of the parties and caused unnecessary expense to the trust.

Appellants do not contend that the court erred in finding that the contract created an express trust between the parties. It has long been the law in this state that courts of equity have inherent jurisdiction over express trusts. Simmons v. Friday, 359 Mo. 812, 224 S.W.2d 90 (1949); Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886 (1943), and they may take all needful steps to prevent failure of trusts, Kimpton, supra, at 890 and State v. Johnson, 229 Mo.App. 16, 68 S.W.2d 858, 861 (1934).

Appellants argue that even with this general power, a court of equity may not order the removal of the trustees unless some kind of a petition for their removal is filed. Powers v. Johnson, 306 S.W.2d 616 (Mo.App.1957). While we agree with this as a correct general statement of the law, the Powers case, supra, at 622-3, went on to hold that where the question of the conduct of the trustees was sufficiently raised, a court acting in equity had the authority to order the removal of trustees notwithstanding the fact that the prayer for relief did not contain a request for removal. In Powers the court based its finding that the petition was sufficient on two factors; first, that the conduct of the trustees was sufficiently raised; secondly, that the relief actually prayed for would have resulted in a change of control of the trust. In the present case, the counterclaim of respondent Bertha Whan raised the issue of the conduct of the appellants. Her answer to appellants’ amended petition sought to have the court declare the trust creating contract to be a nullity, thereby wresting control of the trust funds from the appellants. We cannot say, therefore, that the trial court erred in finding that the issue of removal of the trustees was before it.

We now turn to the question of whether there was sufficient evidence before the court to justify the removal of the trustees. Appellants argue that mere hostility alone between the beneficiary and trustees is not usually, in and of itself, sufficient grounds for removal of a trustee. Vest v. Bialson, 365 Mo. 1103, 293 S.W.2d 369, 382 (1956) and Morrison v. Asher, 361 S.W.2d 844, 852 (Mo.App.1962). Such hostility, coupled with other conduct, is, however, grounds for removal. Morrison, supra, at 852. A trustee is under a duty to the beneficiary to administer the trust solely in the interest of the beneficiary. Hillyard v. Leonard, 391 S.W.2d 211, 223-4 (Mo.1965) and Estate of Luyties v. Scudder, 432 S.W.2d 210, 214 (Mo.1968).

The evidence in the present case was that there was a great deal of hostility between some of the trustees and the lifetime beneficiary and between the trustees themselves. The trust was established in such a way that the very trustees who were hostile to the lifetime beneficiary were the residuary beneficiaries of the trust, creating an obvious conflict of interest. While such a conflict of interest alone need not compel a court to remove trustees, the hostility in this case, coupled with the conflict created a situation into which the court was required to intervene if its obligation to protect the trust was to be carried out. There was also substantial evidence that the trustees breached their duty by refusing to place funds into accounts as required by the agreement. We therefore find no error in the removal of the trustees.

Appellants’ third contention with respect to the trustee replacement is that the court erred in appointing a trustee as this in effect rewrote the contract and caused unnecessary expenses. We find this claim to be without merit. A trust will not be permitted to fail because the trustee named in the instrument creating it cannot administer the trust. A court of equity will appoint a new trustee. Rawlings v. Rawlings, 332 Mo. 503, 58 S.W.2d 735, 737 (1933). Having found that the agreement created a trust and that the trustees must be removed, the court was under an obligation to appoint a new trustee to avoid the failure of the trust.

Appellants’ fourth issue on appeal is that the trial court erred in finding that $6,000 of a $9,000 savings certificate was the property of Bertha Whan. The court found that Mrs. Whan had placed the $6,000 into an account in the name of Orval Whan, payable on death to Stella Knight and Elmer Whan, with the understanding among the four parties that Bertha Whan was to retain the beneficial interest. The court declared that a resulting trust in favor of Bertha Whan existed prior to the death of Orval Whan and that since he held only the legal title as trustee, this $6,000 was not to be included among the property “owned by Orval Whan at his death.”

The burden of proof is on the party seeking to establish a resulting trust and an extraordinary degree of proof is required. Earney v. Clay, 516 S.W.2d 59, 68-9 (Mo. App.1974). The evidence must be so cogent, convincing and clear that no reasonable doubt can be entertained as to the existence of a trust. Eamey v. Clay, supra, at 69 and see also Scott, The Law of Trusts, § 405, 3d Ed. (1967).

The evidence offered at trial did not meet this high standard. The only testimony offered to establish that Bertha Whan was the source of the $6,000 deposit was from Stella Knight and Lois Kurk. The testimony of Mrs. Kurk was objected to as hearsay and the objection was sustained. An offer of proof was allowed. The statements of Stella Knight were allowed into evidence over objection on direct examination and were repeated in her responses on cross-examination. There was no testimony on this matter by either Bertha Whan or Elmer Whan, nor were any records produced to show the source of the $6,000 which was deposited in the certificate as cash. The testimony of Mrs. Knight on direct and cross-examination, without more, is not enough to overcome the heavy burden which those seeking to establish a resulting trust must meet. We therefore reverse the holding of the trial court and find that the $6,000 in question was owned by Orval Whan at the time of his death and is therefore subject to the trust agreement.

Appellants’ fifth issue on appeal is that the court erred in finding that $1658.75, the sum which the three brothers paid Bertha Whan for some tools which she had purchased from the estate of Orval Whan, was the sole property of Bertha Whan and not subject to the contract. The appellants argue that the parties to the contract showed their intention that this money was to be governed by the terms of the contract by placing it in a savings account in the manner set forth in the contract. The conduct of the parties is a proper matter for courts to consider when construing contracts, as the prime objective of the court is to ascertain and render effective the mutual intent and understanding of the parties. Leggett v. Missouri State Life Ins. Co., 342 S.W.2d 833, 852 (Mo. banc 1960). In the present case, however, the question of which funds were subject to the contract does not require a construction of the contract but a determination of the legal fact of ownership by the court. The conduct of the parties has no bearing on this determination of ownership—their conduct cannot alter which property was owned by Orval Whan at his death. These particular funds were not in existence at the time of Orval’s death and were not, therefore, subject to the terms of the contract. The evidence showed that the mother purchased these tools from Orval Whan’s estate, had them transported to Lewiston, Missouri, and auctioned them off between the three brothers. The trial court correctly found that the funds realized from this auction were the property of Bertha. Whan.

Appellants’ sixth issue, listed as points six and sixteen in their points and authorities, is that the trial court erred in finding that the $22,000 proceeds of an insurance policy were the sole property of Bertha Whan. Appellants argue that Bertha Whan voluntarily placed $20,000 of these funds in a joint account and should not be allowed to claim ownership as an afterthought. The issue of the conduct of the parties is, again, not controlling in a determination of the status of this property.

Missouri courts have held that a beneficiary has a vested right in the proceeds of an insurance policy, such rights vesting at the very moment an insured dies. Smith v. Smith, 313 S.W.2d 753, 756 (Mo. App.1958) and John Hancock Mut. Life Ins. Co. v. Dawson, 278 S.W.2d 57, 61 (Mo.App. 1955). The contract involved in the present case affected all property owned by Orval Whan at the time of his death. Since the insurance policy in question was payable to a beneficiary other than Orval Whan’s estate, it cannot be said that he owned the proceeds at his death. The trial court, therefore, correctly found that the proceeds were the sole property of Bertha Whan.

The seventh issue on appeal, labeled thirteen in appellants’ points and authorities, is that the trial court erred in failing to make an order concerning an eighteen acre tract of land referred to in the contract. The contract provided that, “Orval Whan died possessed of certain property, real and personal, in Moline, Illinois, and Lewis County, Missouri. Among that property may have been a tract of land approximately Eighteen and One-Half (I8V2) acres purchased by Orval Whan and Elmer T. Whan from one Elmer Scott. If Orval Whan was the legal owner of any part of this tract of land in Lewis County, Missouri, the children and mother hereby agree and covenant that they will make, execute and sign any necessary deeds or other conveyances so that Elmer T. Whan will be the sole owner of said property.”

We find that the trial court committed no error in omitting mention of this property since the contract term was clear and not subject to interpretation; the contract had been previously found to be valid; and there was no evidence which might have otherwise affected this piece of property. The parties are therefore bound by the terms of their agreement in regards to this piece of property.

The eighth issue raised by appellants as point fifteen in their brief is that the trial court erred in finding Bertha Whan entitled to all of the interest from the trust fund, because this was inconsistent with the terms of the contract. Appellants argue that the contract provided for her to have her checking account brought up to the sum of $3,000 twice a year, but no place did it provide for her to get all of the interest in a lump sum.

The trial court took evidence which established that during the period subsequent to the signing of the contract Bertha Whan had incurred expenses of $59,162.10 without receiving any of the semi-annual interest payments that were provided for in the contract. In order to meet these expenses, Mrs. Whan was required to expend her own funds, contrary to the intent of the parties as expressed in the trust agreement. We find that the trial court committed no error in exercising its equitable powers to supervise the trust in this manner.

Appellants’ ninth issue raised as point seventeen in their brief, contends that the court erred in entering judgment as it did because the evidence clearly shows that the respondents have control of Bertha Whan and the ruling plays into their hands and permits them to further erode her property for their benefit, all contrary to the letter, spirit, and intent of the contract. We find no merit to this vague claim. The court’s ruling has the effect of reducing the amount of property which appellants feel should be subject to the agreement. The evidence at trial showed that a great deal of hostility existed between appellants and respondents. The effect of the court’s ruling may well be that the amount of money which appellants will receive upon the death of Bertha Whan will be reduced. Mrs. Whan may choose to dispose of her own property in some manner other than an equal division among her children. The evidence did not show that any individual or group had “control” of Mrs. Bertha Whan, nor was the ruling of the court contrary to the agreement of the parties. The court found the agreement created a trust in favor of Mrs. Bertha Whan and sought to fulfill its obligation to protect that trust.

Appellants’ final issue is that the court erred in entering the judgment as it did because it permits the respondents to win even though they lost the suit on the contract and on their counterclaim. We find no such error. Appellants’ amended petition requested the declaration and accounting made by the trial court. The finding by the jury that the contract was valid did not affect-the power of the court to make a determination of which property was and was not subject to the agreement.

We therefore affirm all of the findings of the trial court with the exception of the $6,000 which the court held to be the sole property of Bertha Whan by operation of a resulting trust. We hold that the $6,000 is subject to the agreement made by the parties.

Accordingly, judgment is affirmed in part and reversed in part.

WEIER, P. J., and DOWD, J., concur.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. George L. MERRITT, Defendant-Appellant.
    No. 36968.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 27, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.

      Robert A. Hampe, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Sheila Hyatt, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Defendant appeals his conviction of tampering with a motor vehicle without permission of the owner. § 560.175 RSMo 1969. The jury assessed his punishment at 1 year imprisonment in addition to a fine of $100. The defendant was sentenced in accordance with the jury’s assessment of punishment. We affirm.

Defendant’s first contention on appeal is that the trial court erred in admitting as evidence the owner’s testimony concerning the vehicle identification number of the automobile. It is defendant’s position that the certificate of title was the best evidence to prove ownership of the automobile. This issue has been settled by several previous decisions, with which we agree. The ownership of an automobile “may be proved by sufficient competent parol evidence and it is not necessary to introduce the certificate of title in evidence in order to prove ownership under § 560.175. . The best evidence rule has no application where, as here, the contents of the writing are not in issue and parol testimony is not offered to establish the terms of the writing but to establish a fact which exists independently of the writing.” State v. Curry, 473 S.W.2d 747, 748 (Mo.1971) (and cases cited therein). We reject defendant’s first contention.

The next issue raised by defendant is that the trial court erred in permitting a police detective to testify as to the computer print-out of the vehicle’s identification number. It is defendant’s position that the testimony was hearsay. The vehicle identification number had already been established by competent testimony; this testimony now objected to was merely cumulative and therefore not prejudicial. State v. Williams, 448 S.W.2d 865, 869 (Mo.1970).

Defendant’s third assertion is that the trial court erred in admitting photographs of automobile parts and tools found in the garage. Defendant made no objection to this evidence at trial. Hence, this point is not preserved for review. State v. Thomas, 438 S.W.2d 174, 176 (Mo.1969). In any event, we do not find this evidence so prejudicial to defendant' as to amount to plain error necessitating reversal despite failure to object. Rule 27.20(c).

The next point raised on appeal is that the trial court erred in overruling defendant’s motion for judgment of acquittal. Defendant argues that the evidence was insufficient to support the conviction. In testing the sufficiency of the evidence to support a conviction, the facts and evidence and favorable inferences reasonably drawn therefrom must be considered in the light most favorable to the State, and all evidence and inferences to the contrary must be disregarded. State v. Thompkins, 515 S.W.2d 808, 812 (Mo.App.1975). A brief review of the evidence favorable to the State reveals the following: Two St. Louis police officers observed the defendant and a companion working on an automobile engine in a vacant building’s adjoining garage. The defendant had a wrench in his hand. The officers approached the garage and identified themselves. Defendant and his companion stealthily fled. The officers pursued them and apprehended them. At the time, defendant’s hands and clothing were covered with dark stains.

The numbers from the recovered automobile transmission were entered into the police computer. In return, the computer supplied the number and make of a recently stolen auto.

Defendant relies principally upon State v. Castaldi, 386 S.W.2d 392 (Mo.1965), which held that flight from, and mere presence at, the scene of the crime, without other evidence showing defendant affirmatively participated in the crime, are insufficient to support a judgment of conviction. However, fight is a circumstance to be considered in connection with the other evidence of the commission of a crime. Castaldi, supra, 395. And presence at the scene of the crime, considered with other evidence of affirmative participation, will support a conviction. State v. Staples, 490 S.W.2d 293, 294 (Mo.App.1973). Additionally, “most felony tampering cases involve the theft or attempted theft of automobile parts.” State v. Tate, 509 S.W.2d 800, 802 (Mo.App.1974). In the instant case, defendant was seen actively working on the engine from the stolen auto. He was observed again with a wrench in his hand. Additional tools were recovered from the scene. Further, defendant furtively fled when the police approached the scene. The owner testified that he did not give permission to defendant to remove any parts from his automobile. These facts indicate that defendant affirmatively participated in the crime as charged and convicted. See State v. Minor, 531 S.W.2d 101, 102 (Mo.App. 1975). Defendant’s contention that the court erred in overruling his motion for judgment of acquittal is contradicted by the record. We therefore rule this point against defendant.

Finally, defendant raises two points contending that the trial court erred in excluding his witnesses for failure to comply with Supreme Court Rule 25.34(A)(5) which pertains to the defense of alibi. There was no objection made to the court’s ruling of excluding witnesses. Defendant now attempts to attack Rules 25.34(A)(5) and 25.45 by invoking the Fourteenth Amendment. The question of the constitutionality of these rules was not raised during trial. Instead, it first appears in the motion for a new trial. Defendant allowed his “first available opportunity” to question the constitutionality of the notice-of-alibi rule and the exclusion sanction of Rule 25.-45 to pass him by. Hence, there is no constitutional issue preserved. Kansas City v. Howe, 416 S.W.2d 683, 687 (Mo.App. 1967). “To preserve constitutional issues for review they must be raised at the first opportunity consistent with orderly procedure; the trial court should be advised as to the specific article and section of that constitution claimed to have been violated, and, if possible, the point must be presented in the motion for new trial, if any.” State v. Goforth, 535 S.W.2d 464, 468 (Mo.App.1976). Defendant failed to raise this claim when given the opportunity in the trial court. Therefore, there is no constitutional issue before us for review.

Accordingly, the judgment is affirmed.

CLEMENS, P. J., and STEWART, J., concur.

      . In Missouri, procedures for criminal discovery in felony cases are found in Rules 25.30 through 25.45. These rules provide for mutual and reciprocal pre-trial disclosure between parties. However, “if ... a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may . . . exclude such evidence . . ” Rule 25.45. For a discussion of the Rules, see Simone, The New Rules of Criminal Discovery in Missouri, 31 J. of Mo. Bar 16 (1975).


author: WEIER, Presiding Judge.

text:
    David L. OGDEN and Marian Ogden, his wife, Plaintiffs-Appellants, v. Alexander TOTH, Defendant-Respondent.
    No. 36996.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 27, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.

      Gallego & Mueller, Jack Juaquin Gallego, Troy, for plaintiffs-appellants.
    Niedner, Moerschel, Nack & Ahlheim, Robert V. Niedner, St. Charles, for defendant-respondent.
   WEIER, Presiding Judge.

This appeal arises out of a personal injury suit involving a tree cutting accident. The jury returned a verdict for plaintiff David L. Ogden, Sr. in the sum of $30,000.00 and for plaintiff Marian Ogden in the sum of $4,000.00. The trial court sustained defendant’s motion for judgment in accordance with his motion for a directed verdict and entered judgment for defendant with an alternative order granting defendant’s motion for a new trial on the ground that the verdict was against the weight of the evidence. Plaintiffs have appealed. We reverse the judgment for defendant and affirm the order granting a new trial.

In determining whether the trial court erred in setting aside the jury verdict and entering judgment for defendant, we consider only the evidence most favorable to plaintiffs and the reasonable inferences to be drawn therefrom, and disregard defendant’s evidence unless it aids plaintiffs’ case. Woodford v. Illinois Central Gulf Railroad Co., 518 S.W.2d 712, 715[1] (Mo. App.1974). We “bear in mind that a court should never withdraw a question from the jury unless all reasonable men, in the honest exercise of a fair, impartial judgment, would draw the same conclusion from the facts which condition the issue; that where there is uncertainty arising from a conflict in the testimony or because, the facts being undisputed, fair-minded men would honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury; * * *.” Sippel v. Custom Craft Tile, Inc., 480 S.W.2d 87, 89[1] (Mo.App.1972). We review the facts favoring plaintiffs.

Prior to December 2, 1973, arrangements were made between plaintiff David L. Ogden and defendant Alexander Toth for Mr. Ogden to cut down some trees on defendant’s property. Mr. Toth wanted to clear out a surplus of trees in his front lawn and to widen his driveway. Mr. Ogden’s brother-in-law, Marian Ogden’s brother, William Wolf, was to get the firewood. Mr. Ogden and Mr. Toth were friends and neighbors, and each had done things for the other in the past without charge. On Sunday morning, December 2, 1973, David L. Ogden, his wife, Marian Ogden, their son of seventeen years, David L. Ogden, Jr., and Mrs. Ogden’s brother, William Wolf, assembled at the Toth residence to begin work. The felling of the larger trees was done by Mr. Ogden with his chain saw. William Wolf cut up the trees after they were on the ground. David Ogden, Jr. and Mr. Toth stacked the wood. One tree in the backyard, where the cutting began, was leaning steeply over a shed. To prevent it from falling onto the shed it was agreed that a cut should be made high to let the top portion fall short of the shed before making a second cut at the base and letting the lower portion fall. This was done successfully. A similar procedure was followed a short time later in the front yard on a tree leaning toward the house but this time there were complications resulting in injuries to Mr. Ogden, Sr.

The tree in question was a white oak approximately twelve to fourteen inches in diameter at the base and approximately eight to ten inches in diameter where the upper cut was made. Mr. Ogden stated that it was “a pretty fair size tree”, perhaps fifty feet high. It was described as leaning “quite steeply”, as having a “severe lean”, and as “laying on a heck of an angle” toward the house to the east. The tree was just south of the driveway which extended from the north side of the house out to the highway.

After the group assembled in the front yard, Mr. Ogden and Mr. Toth participated in a discussion in which everyone present agreed that the best method to cut this tree would be to cut it high, let the top portion fall, and then cut it at the base. This method had been successful that day in felling another tree that leaned toward a shed. Mr. Ogden climbed up a ladder and made a cut into the tree somewhere between eight and fourteen feet from the ground. The top portion fell east toward the house in the direction it had been leaning. It landed partly on the front lawn and partly on the driveway. The butt end of this top, nearest the cut, was still hinged to the bottom or trunk part of the tree, attached by a flap of wood and bark. Mr. Ogden cut the two pieces free but the butt end of the tree top still did not fall. One end of a rope was then tied to the upper cut portion of the tree and the other end stretched out in a north-northwesterly direction. Four men, David Ogden, Sr., David Ogden, Jr., William Wolf and Alexander Toth, pulled on the rope but the upper portion still did not move.

Mr. Ogden told the other men to “drop the rope”. Mr. Wolf and David Ogden, Jr. let go of the rope but Mr. Toth continued to hold the rope taut, pulling and putting some tension on it. Mr. Ogden, Sr. knelt down at the base of the tree and began cutting into the trunk. He was at the northwest side of the tree and not under the upper portion. Defendant Toth testified that Mr. Ogden was on the “opposite side from the portion, the top portion of the tree that was cut.” Mr. Ogden’s right knee was on the ground and his left leg extended out to the side. Mr. Ogden’s back was to Mr. Toth and the rope extended over Mr. Ogden’s left shoulder. He did not know that Mr. Toth was pulling on the rope. When Mr. Ogden had cut approximately three quarters of the way through the trunk, the top portion fell, striking Mr. Ogden across his back and left leg, resulting in serious injuries. The testimony showed that the upper portion fell in the direction the rope was being pulled. Marian Ogden testified that the “tree came the way the rope was”. In response to the question: “In which direction did the log come down?”, David Ogden, Jr. answered: “The direction the rope was being pulled and back a little.” The following exchange took place between plaintiff’s attorney and defendant Toth:

“Q. Now is it fair to say that when that tree did come down, that she came down in the direction in line towards that rope?
A. Towards the rope?
Q. Yes.
A. Yes, sir.
Q. It did?
A. Yes, sir.
Q. It came towards and in line with the rope and then down; is that correct?
A. Yes, sir.
Q. And Mr. Ogden was then to the northwest and cutting in and the tree came back and down; is that correct?
A. Yes, sir.
Q. In line with the rope?
A. Yes, sir.
Q. In line with the the way the rope was being pulled; is that correct?
A. Yes, sir.”

Mr. Wolf testified that after the upper portion struck Mr. Ogden it rested on the ground about three or four feet to the side (north) and somewhat to the rear (west, apparently) of the stump. Mr. Wolf also testified that after Mr. Ogden had been taken to the hospital, Mr. Wolf could rock the lower portion of the tree (which was still standing) back and forth with his hand. Mr. Toth also mentioned some shaking.

The trial court stated in its order granting defendant’s motion for judgment in accordance with his motion for directed verdict that it was granting the motion for the reasons stated in defendant’s motion. Of the reasons stated in defendant’s motion, we consider two: Whether there was “no substantial evidence of negligence of this defendant which was a cause of plaintiffs’ damage”, and Whether “[t]he evidence showed that Plaintiff David L. Ogden was guilty of contributory negligence as a matter of law.”

On the issue of defendant’s negligence, there was sufficient evidence of a breach of a duty of due care in defendant’s affirmative act of pulling on the rope in the direction Mr. Ogden was working even though Mr. Ogden had told him to drop the rope. This is much different than Sellens v. Christman, 418 S.W.2d 6 (Mo.1967), where defendant took no affirmative action toward plaintiff. In that case a cut tree lodged at an angle of about forty-five degrees in the top of a second tree. Plaintiff cut the second tree “pretty well through but not clear off.” Three men including plaintiff then tried to push the trees down but only succeeded in rocking them about two feet. While plaintiff was cutting up a third tree nearby, the first two trees fell on him. The court held under these circumstances that not only was there no negligence on the part of the defendant-property owner because he was under no duty to protect plaintiff from an obvious danger that plaintiff had helped to create, but in addition defendant had committed no affirmative act toward plaintiff constituting negligence. Here, defendant had superior knowledge of a dangerous condition and was actively negligent toward plaintiff in continuing to pull the rope when he was told not to do so. As to active and passive negligence of possessors of land generally, see Arbogast v. Terminal Railroad Association of St. Louis, 452 S.W.2d 81, 84 (Mo. 1970); Cupp v. Montgomery, 408 S.W.2d 353, 356 (Mo.App.1966).

The proximate cause issue is more difficult to resolve. In considering this issue we bear in mind that questions of proximate cause are ordinarily for the jury. Pollard v. Genera] Elevator Engineering Co., 416 S.W.2d 90, 95[2] (Mo.1967); Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7, 13[15] (Mo.App.1974). In addition, “absolute and mathematical certainty is not required. It is sufficient if there is substantial evidence which shows that the injury is a natural and probable consequence of the negligent act or omission. And this can be determined by reasonable inference from proven facts or circumstantial evidence. Where the logical conclusion from the evidence is that if certain things were properly done certain results would not have occurred, and they did occur, the question of causal connection is sufficient to go to the jury.” Steele v. Woods, 327 S.W.2d 187, 195[7, 8] (Mo.1959).

Defendant contends that it was physically impossible for one man to pull down the upper portion of this tree when four men could not budge it earlier, that such a theory is manifestly untrue and should be disregarded. In support of this contention defendant cites cases where physical facts, objective measurements or photographs overcame testimony to the contrary. Kelly v. Terminal Railroad Association of St. Louis, 315 S.W.2d 699, 702[1, 2] (Mo.1958); Lohmann v. Wabash R. Co., 364 Mo. 910, 269 S.W.2d 885, 891(6] (1954). In this case, however, there was testimony showing that the trunk had been loosened by cutting it at the base, and this explains why it was possible for one man to pull it down then when four men could not do so earlier. Testimony of defendant’s expert witness, Gilburt Butler, reinforces this conclusion. Furthermore, even if the upper portion began to fall through no fault of defendant, the tension on the rope could have deflected or influenced the course of the limb toward plaintiff on its way down.

Defendant also contends that an inference of proximate cause in this case is speculation, guesswork and conjecture on the part of the jury, and not a reasonable, or permissible, inference. We consider the cases which he believes support this contention. In Gottman v. Norris Construction Co., 515 S.W.2d 861, 864[4, 5] (Mo.App.1974), a motorist ran onto the low shoulder of a highway under construction and back across the road to his death. Plaintiff contended that the construction contractor was negligent in failing to warn the motorist of the low shoulder. But plaintiff’s decedent knew the condition of the highway and the hazard of the low shoulder from previous travel over the same roadway. In Schabbing v. Seabaugh, 895 S.W.2d 256 (Mo.App. 1965) plaintiff’s husband was killed as a result of being thrown from the seat of defendant’s tractor when it struck a hidden hole. The court held at 260[9] that even if defendant owed a duty to supervise plaintiff, his failure to do so was not the proximate cause of plaintiff’s death since no amount of supervision would have allowed defendant to see a hole that was hidden from plaintiff’s view. The accidents in Gottman and Schabbing would have occurred even if the defendants had not been negligent and in such situations the juries were not allowed to speculate on proximate cause. In this case, however, the jury could reasonably infer that defendant’s active negligence in pulling on the rope was the proximate cause of plaintiff’s injuries in one of two ways.

First, the jury could reasonably infer that defendant pulled the upper portion off of the trunk onto plaintiff after the trunk had been weakened by the cutting at the base. Without the tension on the rope the upper part could have stayed in place until the trunk was cut through when plaintiff would be expecting both pieces to fall. Second, the jury could reasonably infer that even if the upper part began to fall solely because of the weakened trunk, defendant influenced or deflected the path of the limb on its way down, causing it to fall on the north side of the trunk and somewhat to the northwest, rather than allowing it to fall either straight down short of the trunk to the east or to the opposite side of the trunk to the south. The record is somewhat unclear on the angle of lean in this trunk, the exact height of the first cut, and the length of the upper portion of the tree, all relevant factors in determining whether the upper portion could have fallen straight down short of the base to the east. However, viewing the evidence in the light most favorable to plaintiffs (that the trunk leaned severely to the east, that the first cut was made only eight or ten feet from the ground, and that the upper portion was quite long), we believe there was sufficient evidence from which the jury could reasonably find that the upper portion could have fallen straight down to the east of the base and that it did not fall that way because defendant deflected it to the north-northwest. This case is similar to Penberthy v. Penberthy, 505 S.W.2d 122 (Mo.App.1973). In that case defendant negligently failed to secure himself while he and plaintiff were standing on a brush pile. Defendant lost his footing and knocked plaintiff to the ground when his chain saw cut through a limb more rapidly than he expected. The court held that under these facts there was a jury question on the issue of proximate cause because the jury could reasonably find that defendant could have secured his position and prevented the accident and that some injury to plaintiff was reasonably foreseeable if defendant did not secure himself. Penberthy, supra, at 127[5-8].

Defendant next contends that plaintiff was guilty of contributory negligence as a matter of law in failing to notch the first cut, in failing to use a pickup truck to pull down the upper portion, and in cutting the base of the tree knowing this to be dangerous. The issue of contributory negligence is always for the jury unless, from the evidence viewed in the light most favorable to plaintiff, the only reasonable conclusion is that plaintiff was guilty of negligence proximately causing his injury. Dalby v. Hercules, Inc., 458 S.W.2d 274, 277[1] (Mo.1970); Brown v. Missouri Pacific Railroad Co., 510 S.W.2d 846, 849[4, 5] (Mo.App. 1974). If reasonable minds can differ on the question of contributory negligence, we cannot say as a matter of law that the case is not submissible to the jury. Ferguson v. Air-Hydraulics Company, 492 S.W.2d 130, 134[1] (Mo.App.1973).

Gilburt Butler, an expert on tree cutting, testified that a person using ordinary care would notch the tree on the side he wanted it to fall before cutting it through so that it would be less likely to hinge. However, on cross-examination Mr. Butler admitted that he did not always notch trees, and that if a tree were leaning a certain way and a square cut were made on it, one could expect it to fall straight down in the direction it was leaning. In addition, there is evidence that a tree that had been leaning toward the shed in the backyard was successfully removed by the same method, apparently without notching. Under these circumstances we cannot say that plaintiff was guilty of contributory negligence as a matter of law in failing to notch the tree.

Defendant next maintains that plaintiff was eontributorially negligent in failing to pull down the upper part of the tree with a rope tied to a pickup truck. But defendant himself testified that using a pickup truck probably would have been to no avail, as the ground was wet and had been seeded, and there probably would not have been any traction. The jury could also reasonably find from the evidence that a pickup truck could not be used on the driveway because of the angle of the limb in relation to the direction the driveway ran, and because the upper portion of the tree partially blocked the driveway. The question of plaintiff’s negligence, if any, in not pulling the limb off with a pickup truck was for the jury.

Defendant also contends that plaintiff was guilty of contributory negligence in cutting the base of the tree while the upper part was still lying on the trunk, knowing this to be dangerous. We consider defendant’s cited cases. In Sellens v. Christman, supra, 418 S.W.2d 6, discussed above, the trial court directed a verdict against plaintiff on the grounds that plaintiff had failed to show that the accident was the fault of defendants and further that the evidence showed plaintiff himself to be at fault. Because the Missouri Supreme Court affirmed the action of the trial court, it is difficult to determine on which ground plaintiff lost the case. But even assuming, as defendant contends, that Sellens stands for the proposition that plaintiff was eontributorially negligent as a matter of law in continuing to work in the path of the probable fall of two trees which he had partially felled and which he had rocked back and forth about two feet in an effort to push over, Sellens is nonetheless distinguishable on its facts. Kraus v. Auxvasse Stone & Gravel Co., 444 S.W.2d 434 (Mo.1969), where the court discussed the negligence of a plaintiff who walked under the arc of a boom supporting a steel beam, is also distinguishable. Here, Mr. Ogden was to the northwest of the base of the tree while the upper part extended down from the leaning trunk to the east. He was not directly under the limb or in the path of the probable fall of the object as were plaintiffs in Sellens and Kraus. Had plaintiff known that defendant was pulling the rope taut in line with where plaintiff was working, these cases and Phillips v. Wirthman, 516 S.W.2d 543, 545[1] (Mo.App. 1974) would be more in point. In Phillips plaintiff was held eontributorially negligent as a matter of law when she ran into the path of a chained-up dog she knew to be dangerous. Here, although Mr. Ogden knew that when he cut into the base it would begin to move and the tree would fall down, and that such an operation would have a tendency to be dangerous, there is no showing that he knew or should have known that the limb would fall the way it did. The danger caused by defendant’s pulling the rope in the direction of plaintiff was not known to plaintiff and we cannot say under the facts of this case that plaintiff’s cutting the base of the tree was contributory negligence as a matter of law. Plaintiff Ogden was not required to anticipate the negligence of this defendant or to anticipate the danger that would not have existed except for defendant’s negligence. Holt v. Myers, 494 S.W.2d 430, 442[14] (Mo. App.1973). Penberthy v. Penberthy, supra, 505 S.W.2d at 127[9] supports our decision. In that case the court held that even though plaintiff was aware of the nature of the brushpile and had taken no steps to secure himself on it other than by holding onto limbs as the defendant sawed them, since plaintiff could not see that defendant was behaving negligently in cutting into a limb without first securing his position, plaintiff’s contributory negligence, if any, was a question for the jury.

The final issue in this case concerns the trial court’s action in granting a new trial on the ground that the verdict was against the weight of the evidence. Trial courts have discretion to grant one new trial on the ground that the verdict is against the weight of the evidence and this will not be disturbed on appeal where there is evidence to support a verdict for the party receiving the new trial. Rule 78.02; Clark v. Ford, 498 S.W.2d 803, 805[1] (Mo. 1973). See Benson v. Qualls, 527 S.W.2d 44 (Mo.App.1975). In this case there was substantial evidence, such as the testimony of Gilburt Butler on the issue of proximate cause and contributory negligence, that would have supported a verdict for defendant.

The trial court’s order in setting aside the verdict for plaintiffs and entering judgment for defendant is reversed. The alternative order granting defendant’s motion for a new trial is affirmed.

McMILLIAN and KELLY, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. William REMSPECHER, Defendant-Appellant.
    No. 37503.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 27, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.

      Robert C. Babione, Public Defender, James C. Jones, Charles S. Stone, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James F. Booth, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was found guilty by a jury of the offense of operating a motor vehicle without the owner’s consent, § 560.175(1), RSMo 1969. Having been found to have committed a prior felony by the court, he was-sentenced under the Second Offender Act to five years in the custody of the Department of Corrections. Three points are relied upon by defendant on this appeal to reverse the judgment of the lower court.

1. Defendant first contends that the trial court erred in denying his motion to produce a transcript of his prior trial to use in cross-examination of the witnesses against him. A motion to produce the transcript was filed on the morning of the second trial without any prior notice. This motion was not timely. State v. Ambus, 522 S.W.2d 306, 310[1] (Mo.App.1975).

2. During the course of the trial evidence was allowed over objection concerning the sale or exchange of the automobile by the defendant to a company engaged in the sale of motor vehicles. It is contended by defendant that this is error because such evidence tended to prove the commission of a crime other than that with which the defendant was charged. This, however, was part of the chain of evidence used to trace the automobile after it had been sold to an innocent purchaser under a false serial number back to the defendant. It was one of a number of circumstances which together constituted a continuous transaction. It tended to prove criminal intent, plan and design, and hence was admissible. State v. Jackson, 519 S.W.2d 551, 558[19] (Mo.App.1975).

3. Defendant charges that the trial court erred when it permitted redirect examination of a witness on matters not previously covered in direct examination and went beyond the scope of the cross-examination. The scope and extent to which redirect examination of a witness shall be permitted to go is a matter to be left largely to the sound discretion of the trial court, reviewable only for abuse. State v. Walden, 490 S.W.2d 391, 393[5] (Mo.App.1973). The court here did not abuse its discretion. Furthermore, the court allowed recross-examination by defendant’s counsel after the redirect examination.

The judgment is affirmed. We have determined that an extended opinion herein would have no precedential value, and af-firmance is in compliance with Rule 84.16.

DOWD and CLEMENS, JJ., concur.