author: FLANIGAN, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Earl Lee PRESTON, Appellant.
    No. 10889.
    Missouri Court of Appeals, Southern District, Division One.
    June 11, 1979.

      Betty A. Pace, Springfield, for appellant.
    John D. Ashcroft, Atty. Gen., Eric Martin, Asst. Atty. Gen., Jefferson City, for respondent.
   FLANIGAN, Chief Judge.

A jury found defendant Earl Lee Preston guilty of the offense of sodomy (§ 563.230) and recommended a sentence of 25 years’ imprisonment which the trial court imposed. Defendant appeals.

The first of defendant’s six “points relied on,” none of which is valid, is that the trial court erred in receiving into evidence, over defendant’s objection, a jacket and a pair of tennis shoes. The objection was presented initially in a pretrial motion to suppress (§ 542.296 — Laws 1974, § 8, p. 922) on which a hearing was held. The objection, renewed at the trial, was based, in essence, on the ground that the jacket and shoes were seized by police officers in violation of defendant’s rights under § 15 of Art. I of the Constitution of Missouri, and the Fourth and Fourteenth Amendments to the Constitution of the United States.

The circumstances leading up to the seizure by the officers of the jacket and shoes involve two offenses, the felonious stealing of a purse and its contents on June 24,1977, and the sodomy which was committed on July 27, 1977. The victim of the stealing was Johnna Wheeler. The victim of the sodomy was a ten-year-old boy named Wesley. Both offenses were committed in Springfield, Missouri.

Detective Ted Hobson of the Springfield police department was assigned to the investigation of the stealing case. Detectives Dan Wilson and Tony Glenn, under the supervision of Sgt. Ayers, were assigned to the investigation of the sodomy.

On June 24, 1977, detective Hobson interviewed Johnna Wheeler who was a church secretary. Johnna told Hobson that she always kept her purse under the desk in the lobby of the church; that a black man named Earl Lee Preston had come to the church several times begging for money; that Preston was in the church on the day the purse was stolen. The purse was taken sometime during a period of two or three minutes while Johnna was away from the lobby. Preston was in the lobby when Johnna left it but was not there when she returned. The contents of the purse were of such value that the unlawful taking was a felony. Johnna described Preston as being a black man, about 20 years old, “short hair, kind of fuzzy beard, weighed about 200 pounds, about 5'9" or 5'10", very stocky and muscular.”

Hobson obtained information to the effect that Preston had been living “at the Missouri Motel and also at the Seville Hotel” but efforts by Hobson to find him there had been unsuccessful.

On July 28, 1977, the day following the sodomy offense, detectives Glenn and Wilson interviewed Wesley, the victim. Wesley described his assailant as being a black man, 5'8" or 5'9", muscular build, short hair, and weighing approximately 150 pounds. Wesley told the officers that his assailant wore a dark leather jacket and a pair of brown tennis shoes with ribbed soles. Another boy, Lance, had told Glenn and Wilson that he had seen a black man in the wooded area where the sodomy took place on the day before that offense was committed. The black man had told Lance that his name was “either Lee or Leroy.” Lance described the man as being a male Negro, 5T0" or 5'11", very large build, very muscular, short hair with facial hair and very dark complexion.

On July 29, 1977, detective Hobson overheard a conversation among officers Glenn and Wilson and Sgt. Ayers concerning the sodomy case, including their description of the sodomy suspect. Hobson informed the other officers that the description fit that of Earl Preston whom Hobson was seeking on a “grand theft charge.”

A telephone call to the Seville Hotel elicited information from the clerk to the effect that Preston was registered there and that his room number was 322. Officers Hobson, Glenn and Wilson made one trip to the hotel but Preston was not there at that time.

Later the same day, July 29, officers Glenn and Wilson returned to the Seville Hotel. They did not have a search warrant or an arrest warrant. They knocked on the door and a black man opened it. He was in his 20’s, approximately 5'10" or 5'11", and had a “large build.” He told the officers his name was Earl Lee Preston. The officers identified themselves as members of the Springfield police department and asked permission to enter the room. After Preston granted the request the officers informed him that they were placing him under arrest for grand stealing.

While this conversation was taking place the officers “had occasion to observe the contents of room 322” which was a small room. The closet door was standing open and on it was hanging the dark blue jacket in plain view. Sitting under the edge of the bed, also in plain view, was a pair of brown tennis shoes which had ribbed soles. The officers then informed Preston that they wanted to talk with him with regard to a sexual assault which had occurred in Springfield and they told him they were looking for a weapon which had been used in connection with that assault. Glenn testified that he asked Preston “if we could have his permission to search the room” and that Preston “told us we could search it.” No weapon was found in the search of the room but the officers took possession of the jacket and shoes. Although the officers were armed they did not draw their weapons but the record is silent on whether the weapons were visible. The officers took Preston and the jacket and shoes to the police station. Before Preston consented to the search, officer Glenn informed him that he had a right to refuse to allow the search.

Defendant does not challenge the legality of his arrest. His argument is that the warrantless seizure of the jacket and shoes was invalid because the requirements of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) were not met.

Chimel imposed limitations upon the scope of a warrantless search justified as being incident to a valid arrest. The Supreme Court of the United States held that a search incident to a valid arrest may extend to the area within the immediate control of the arrestee, that is the area from within which he may gain possession of a weapon or destructible evidence.

In State v. Epperson, 571 S.W.2d 260, 263 (Mo. banc 1978) these principles were stated: In general, an entry and search without a warrant are deemed unreasonable under the Fourth Amendment to the Constitution of the United States unless the action falls within certain carefully delineated exceptions; the burden is on the state to show an exception exists; among the exceptions are seizures of evidence in plain view.

This court holds that the seizure was justified under the plain view exception. It is therefore unnecessary to determine whether it is justifiable under other exceptions mentioned in Epperson, including “searches incident to a valid arrest” and “searches with consent.”

The plain view exception, or doctrine, received lengthy discussion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Supreme Court of Missouri, summarizing its requirements, has said:

“[Coolidge ] is authority for the proposition that plain view alone is not enough to justify a warrantless seizure. It is necessary that (1) the evidence be observed in plain view while the officer is in a place where he has a right to be, (2) the discovery of the evidence be inadvertent and (3) it is apparent to the police that they have evidence before them.” State v. Collett, 542 S.W.2d 783, 786 (Mo. banc 1976).

Requirement (1) is met in the case at bar because both the jacket and the shoes were in the plain view of officers Glenn and Wilson and the presence of the two of them in defendant’s hotel room was with the permission of the defendant himself — thus the officers had a right to be there.

Equally clear is the fact that requirement (3) is met. Upon seeing the jacket and the shoes, in light of the information previously given them by Wesley, the officers knew that they had “evidence before them.” The fact that the evidence pertained to an offense other than the one for which defendant had been arrested is of no moment. United States v. Simpson, 453 F.2d 1028, 1031[7-8] (1972); Ramirez v. Rodriguez, 467 F.2d 822, 824 (1972).

Requirement (2) is met if it may properly be said that the discovery of the jacket and shoes was “inadvertent.” In Coolidge, supra, the supreme court did not define the term “inadvertence.” That omission is discussed at length and sought to be clarified in United States v. Hare, 589 F.2d 1291 (1979). There the United States Court of Appeals for the Sixth Circuit rejected the contention that the supreme court was using the word “inadvertent” as a synonym for “unexpected” or “unanticipated.” Instead, said the court of appeals, the supreme court was using the word “inadvertent” as a synonym for “unintentional.”

“We conclude, then, that ‘inadvertence’ in this context means that the police must be without probable cause to believe evidence would be discovered until they actually observe it in the course of an otherwise-justified search. There are many times when a police officer may ‘expect’ to find evidence in a particular place, and that expectation may range from a weak hunch to a strong suspicion. However, the Fourth Amendment prohibits either a warrant to issue or a search based on such an expectation. Yet if in the course of an intrusion wholly authorized by another legitimate purpose, that hunch or suspicion is confirmed by an actual observation, the police are in precisely the same position as if they were taken wholly by surprise by the discovery. The same exigent circumstances exist, and no warrant could have been obtained before the discovery.” United States v. Hare, 589 F.2d 1291, 1294 (1979).

Before their entry into room 322 the officers did not know of the specific location of the jacket and shoes in room 322 nor did they know that either item was present in the room at all. Any expectation they may have had amounted only to a “weak hunch” or certainly no more than a “strong suspicion.” Under Hare, the discovery of the items was “inadvertent.” Other authorities supporting this determination are cited below.

Defendant’s first point has no merit.

Defendant’s second point is that the trial court erred in receiving evidence, over defendant’s objection, with respect to extrajudicial identifications of defendant based on defendant’s presence in a police lineup. The sole basis for the objection is that defendant was not represented by counsel at the time of the lineup nor had he waived his “right” to counsel at that stage.

The lineup was held on July 30, 1977, at approximately 10:00 a. m. The transcript shows that a “Complaint in Felony case” (see Rule 21.08) was filed in the magistrate court on July 30, 1977, but it does not show whether that filing occurred before or after the lineup was held on the same day. Under Missouri cases cited infra, that sequence, even if ascertained, is of no moment. On some day thereafter, and prior to August 19, 1977, the preliminary hearing was held in magistrate court. The information on which this prosecution was based was filed in the circuit court on August 22, 1977.

Defendant’s second point is without merit. Defendant did not have a constitutional right to counsel at the time of the lineup for the reason that it was held prior to “the initiation of adversary judicial criminal proceedings” as that term is used in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). Defendant relies upon Arnold v. State, 484 S.W.2d 248 (Mo.1972) where the lineup was held after the filing of the complaint and prior to the filing of an information. However, the holding in Arnold was reversed in Morris v. State, 532 S.W.2d 455 (Mo. banc 1976) and our supreme court approved other Missouri cases, there cited, to the effect that the “per se exclusionary rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 has no application” to a lineup conducted prior to the filing of the information.

Other authorities hold that defendant had no constitutional right to counsel at the stage when the instant lineup was held. State v. Nylon, 563 S.W.2d 540, 544[20] (Mo.App.1978); State v. Hawkins, 544 S.W.2d 880, 883[1] (Mo.App.1976); State v. Johnson, 539 S.W.2d 493, 518[6] (Mo.App.1976). See also State v. Perkins, 559 S.W.2d 52, 54 (Mo.App.1977); State v. Wendell, 547 S.W.2d 807, 809 (Mo.App.1977); Caver v. State of Ala., 577 F.2d 1188, 1195[5] (1978); Boothe v. Wyrick, 452 F.Supp. 1304, 1314 (W.D.Mo.1978).

Defendant’s third point is that the trial court erred “in failing to strike the jury panel and the jury as sworn because neither had any black members in violation of defendant’s right to an impartial jury of his peers.”

After the jury panel was sworn and the voir dire examination had been conducted, defense counsel stated: “Your Honor, I would move to quash this jury panel as it’s presently constituted because it does not represent a fair cross-section of the community. Specifically there are no black members on the panel.” A colloquy ensued between the court, the prosecutor, and defense counsel. The prosecutor stated that approximately 3 percent of Greene County’s population is black and that the prospective jurors were selected at random; that recent cases had jury panels and juries which contained blacks among their members. The trial court stated that “within the last three or four months we have had a number of black jurors.” Defense counsel' did not voice ■ disagreement with the comments made by the prosecutor or the court. More significant, and fatal to defendant’s third point, is the fact that his counsel offered no evidence in support of the motion.

Defendant, who is black, did not have an absolute right to have blacks on the jury or on the jury panel. “Only if a defendant is deprived by design of having blacks on the jury are his constitutional rights invaded. State v. Brownridge, 459 S.W.2d 317, 318 (Mo.1970).” State v. John son, 566 S.W.2d 510, 514[11] (Mo.App.1978). See also State v. Pittman, 569 S.W.2d 277, 280[4] (Mo.App.1978); State v. Crockett, 543 S.W.2d 314, 321[11] (Mo.App.1976). The burden of showing systematic exclusion is on defendant and it does not shift to the state until defendant makes a prima facie case of illegal exclusion. State v. Mooring, 445 S.W.2d 303, 304[1] (Mo.1969); Crockett, supra, at 321. Defendant’s third point has no merit.

Defendant’s fourth point deals with the testimony of state’s witness Richard Fernandez, M.D. Defendant claims the trial court committed error in allowing Dr. Fernandez to testify because he was not shown to be properly qualified and because “his testimony concerning anal penetration was evidence of another separate crime with which defendant was not charged.”

The information charged defendant with oral sodomy. Dr. Fernandez conducted a physical examination of the victim soon after the occurrence. The victim himself testified earlier that as a part of the transaction in which that offense was committed the defendant also committed anal sodomy. Defendant made no objection to the victim’s testimony concerning the anal sodomy and it is clear that such an objection would have been without merit. State v. Parten, 487 S.W.2d 523, 527 (Mo.1972). In Parten the trial court properly permitted evidence concerning the commission of fellatio and sodomy as a part of the transaction which included the commission of the statutory rape, the latter being the offense on trial. To similar effect see State v. Mazzeri, 578 S.W.2d 355, 357[5, 6] (Mo.App.1979). The testimony of Dr. Fernandez was similarly immune from the objection posed.

Also without merit is the contention that Dr. Fernandez lacked proper qualifications. The witness, a medical doctor, during his affiliation with St. Louis Medical Hospital treated 100 to 150 cases involving sexual assaults. About 25 of these dealt with the rectal area and of these cases 10 or 12 involved the attempted insertion of the penis into the rectum. Defendant’s brief states that this background “is not a sufficient basis on which to base a medical opinion as to what caused the tear in the rectal area.” The brief fails to state why the background is insufficient nor does it state what the writer claims was necessary to attain expertise in the field under consideration.

The qualification of an expert witness in a criminal trial is a matter resting primarily in the discretion of the trial court. State v. Wiliiams, 515 S.W.2d 463, 466[3] (Mo.1974). No abuse of discretion has been shown. Defendant’s fourth point has no merit.

Defendant’s fifth point is that the trial court erred in “calling to the attention of the prosecutor that an element of the offense charged, to-wit, actual penetration of the victim’s mouth, had not been established.”

During the prosecutor’s direct examination of the 10-year-old victim, the following testimony took place:

“Q. (by prosecutor) All right. What, if anything, next occurred?
A. He had his pants unzipped and had me put my mouth on his penis.
Q, And did you do that?
A. Yes.
Q. And was it inserted into your mouth? A. Yes.
DEFENSE COUNSEL: Objection, Your Honor, that’s leading.
THE COURT: Sustained.
Q. (by prosecutor) For what period of time did this continue?
A. For about one minute.”

A few minutes later, outside the hearing of the jury, the following occurred:

“THE COURT: The question as to which I sustained the objection was whether the black put his penis in the mouth. That question and the answer was stricken.
Then you asked him further what was done as between the mouth and the penis. And his answer was, ‘He had me put my mouth over his penis.’
Frankly, I don’t know what that means. It could mean about it or it could be around it or was that in the mouth. It could mean any number of things.
PROSECUTOR: Yes.
DEFENSE COUNSEL: Right. Your Honor, I think this would have been in the province of the state to point out. I think you have committed error here in bringing this up. I move for a mistrial at this time.”
“A trial court may in its discretion interrogate witnesses, including the accused when he takes the stand. ... In this case the questions by the court asked of appellant did no more than tend to explain or add to the understanding of the testimony already given. Such questions by the court are proper where the purpose is to develop more fully the truth and to clarify testimony already given.” State v. Cain, 485 S.W.2d 60, 62 (Mo.1972). See also State v. Tate, 468 S.W.2d 646, 648[2] (Mo.1971).

Under the foregoing authorities it would have been proper for the trial court to have clarified the testimony of the witness by questioning the witness himself. Here the court’s comment was outside the hearing of the jury and in the presence of counsel for both sides. The propriety of the court’s conduct is even less subject to question. Defendant’s fifth point has no merit.

Defendant’s sixth point is that the trial court erred “by failing to poll the members of the jury on the morning of the second day of the trial (September 23) as to whether any of said jury members had acquired knowledge concerning an attempted jail break on the evening of September 22 and the early morning of September 23. Since news of the jail break had been disseminated by the local media, it is possible some members of the jury had received such knowledge which prejudiced them.”

Most of the alleged facts stated in defendant’s sixth point are unsupported by the record. The transcript does show that immediately prior to the resumption of the trial on its second day the trial court, outside the hearing of the jury, told counsel for both sides that he “was informed by the sheriff’s department that Mr. Preston was involved somehow in an occurrence last night.” There ensued discussion concerning the need for additional security in the courtroom. Counsel for defendant specifically agreed to these measures.- Defendant’s counsel made no request that the jury be polled concerning the “occurrence,” nor was there any showing that the occurrence, whatever it was, had been disseminated by the local media or that any member of the jury had received any knowledge, from the media or otherwise, concerning it.

This type of objection, belatedly advanced, is akin to an objection based on a claim of misconduct on the part of a juror. When a claim of the latter sort is first presented in a motion for a new trial, an affirmative showing must be made that defendant and his counsel were ignorant of the fact until after the trial. State v. Bollinger, 560 S.W.2d 606, 608[3] (Mo.App.1978).

Defendant requests that the point be considered by this court under the “plain error rule,” Rule 27.20(c). No error, plain or otherwise, appears. Disturbing the verdict and judgment on this basis would require the type of “surmise and speculation” discussed and condemned in Cline v. Carthage Crushed Limestone Company, 504 S.W.2d 102, 117[17] (Mo.1973). Defendant’s sixth point has no merit.

The judgment is affirmed.

TITUS, J., and CAMPBELL, BARKER and HENRY, Special Judges, concur.

      . Unless otherwise indicated all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

      . Collett, supra, also holds “that defendant’s motel room was to be accorded fourth amendment protection against unreasonable search and seizure. Stoner v. California, 376 U.S. 483, 11 L.Ed.2d 856, 84 S.Ct. 889 (1964).”

      . “An officer is generally held to be lawfully present when he is in any of the following locations or situations: (i) the officer is in the premises with the consent of the defendant.” (Authorities cited.) Underhill, Criminal Evidence, Fifth Edition, Vol. II, § 417, note 54. See also United States v. Griffin, 530 F.2d 739, 743 (1976); United States v. Leal, 460 F.2d 385, 389 (1972); Alberti v. State, 495 S.W.2d 236, 237[1-3] (Tex.Cr.App.1973).

      . The Supreme Court of Idaho has pointed out that the portion of the opinion of Mr. Justice Stewart in Coolidge which contains “the inadvertence requirement” was signed by only four justices. “Since the inadvertent requirement was not espoused by a majority of the Court, it is not binding upon this Court as precedent.” State v. Pontier, 95 Idaho 707, 518 P.2d 969 (1974).

      . “The discovery of the passport, although a foreseeable possibility, was unplanned and inadvertent. What Coolidge proscribes is an anticipated discovery, where the police know in advance the location of the evidence and intend to seize it.” United States v. Bolts, 558 F.2d 316, 320 (1977); See also United States v. Worthington, 544 F.2d 1275, 1280 (1977) and United States v. Cushnie, 488 F.2d 81, 82 (1973).
      The supreme court itself in Coolidge said: “[W]e deal here with a planned warrantless seizure. This Court has never permitted the legitimation of a planned warrantless seizure on plain-view grounds.” 91 S.Ct. at 2041.

      . The Coolidge opinion itself contains language supporting this holding:
      “The ‘plain view’ exception to the warrant requirement is not in conflict with the law of search incident to a valid arrest expressed in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. The Court there held that ‘[t]here is ample justification * * * for a search of the arrestee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.’ Id., at 763, 89 S.Ct. at 2040. The ‘plain view’ doctrine would normally justify as well the seizure of other evidence that came to light during such an appropriately limited search. The court in Chimel went on to hold that ‘[tjhere is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.’ Ibid. Where, however, the arresting officer inadvertently comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the

        arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee."

      (Emphasis added.) Coolidge, supra, 91 S.Ct. at 2038, fn. 24.

      . See Anno. 33 L.Ed.2d 783 — “Group or Class Discrimination in Selection of Grand or Petit Jury as Prohibited by Federal Constitution— Supreme Court Cases."
      At p. 805 of that annotation, supported by many authorities there cited, is the following statement:
      “Numerous decisions of the Supreme Court have held or recognized that the burden of proving discrimination against members of a particular group or class in the selection of a grand or petit jury is on the party who asserts such discrimination."


source: Caselaw Access Project

author: GREENE, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ira Elmer BRYANT, Defendant-Appellant.
    No. 10779.
    Missouri Court of Appeals, Southern District, Division One.
    June 19, 1979.

      John D. Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    John B. Newberry, Springfield, for defendant-appellant.
   GREENE, Judge.

Defendant Ira Elmer Bryant was convicted in the Circuit Court of Greene County of the crimes of burglary and stealing, after trial by jury. Defendant was thereafter sentenced by the trial court under the authority given it by the Second Offender Act, § 556.280, RSMo 1969, V.A.M.S., to three years imprisonment on each charge, with the sentences to run concurrently. Defendant appeals from the judgment and sentence. We affirm the judgment of the trial court.

The state’s evidence was as follows. On March 13, 1977, at about 4 a. m., David Haun, a Springfield police officer, after receiving a call from a security officer of the Kerr-McGee Company, arrested defendant. The Rainbow Paint Company was located about 2 blocks south of the place of arrest. After advising defendant of his Miranda rights, Haun searched defendant. Defendant had a number of items in his pockets among which were a paint can opener (state’s exhibit 1), a screwdriver (state’s exhibit 2), a pair of Craftsman pliers (state’s exhibit 3), a letter opener (state’s exhibit 4), a pocket calculator, which was in a dark brown or black colored vinyl case, and a pocket knife. The calculator was approximately 4 to 5 inches in length and 2½ to 3 inches wide. Defendant told Haun that he had found the letter opener in the street, and that he used the other items in his scrap metal business. Defendant’s clothing was soiled; he had fresh, wet, red clay on his boots, and his hands were cut and bleeding. Defendant also told Haun that the reason he was at the location where he was arrested was that his pickup truck had run out of gasoline, and that he had gone to a friend’s house to try and obtain help. Defendant had been drinking, but was not intoxicated. Defendant’s pickup truck was located in front of the Rainbow Paint Company by Police Officer Terry St. Clair. A friend of defendant’s, Rocky Jordan, was in the truck. He was asleep, and when awakened, appeared to be intoxicated.

Police Officer Ralph Laughlin, while on routine patrol in the late evening of March 13, 1977, discovered that some glass had been broken out of a window on the north side of the office area of the Rainbow Paint Company. He notified police headquarters and, after a back-up arrived, Laughlin and Officer Max Long entered the building. There was broken glass on the table and chairs, and a portion of a concrete block was on the floor. Several drawers had been pulled out of a desk and papers were on the floor. The glass panes that had been broken out of the window had jagged edges.

John Carroll, the president and manager of Rainbow Paint Company, testified that he had been at the plant at about 11:30 on the morning of March 12, 1977, and that before leaving he had checked all of the doors and windows. They were all secure and nothing in the interior of the building had been disturbed. Late on the evening of March 13, he was contacted by Springfield police officers and was advised that there had been a break-in at the building. He went to the scene and observed the broken windows and the ransacked desk drawers and saw that “everything in general was in a mess”. He determined, at that time, that a stereo record player was missing. He also noticed the hose on a 500 gallon solvent tank, which looked like a gas tank, was cut and that some gallon cans had been moved out of the laboratory area. Later, at the police station, he identified state’s exhibits 1, 2 and 3 as items owned by him or the company that had been in his desk on March 12, 1977. He identified exhibit 4 (the letter opener) as the property of an employee, Robert P. Hoelcher. He had not given anyone permission to remove the items in question from the building.

Larry Dean Gilmore, another employee, testified, over the objection of defendant, that he was the owner of a pocket calculator, approximate size 1 inch by 2⅜ inches by 5 inches, in a black vinyl case, and that he kept it in the bottom right-hand drawer of his desk in the laboratory room. He checked the desk drawer on March 14,1977, and the calculator was gone. He had not given anyone permission to remove the calculator from the building.

Defendant’s evidence was as follows. Connie Sue Bryant, wife of defendant, said her husband left the family home about 3:30 a. m. on March 13, 1977, with a friend by the name of Rocky Jordan. Ira was dirty and “skinned up” from working on a transmission. He was wearing muddy cowboy boots and left in his red pickup. After being advised the next morning as to the whereabouts of the truck, she went to the Rainbow Paint Company. Rocky was still in the truck drinking beer. She could not find the car keys but the police gave them to her later. The truck was out of gas. It started after she put gas in it.

Defendant then testified. He said that he, accompanied by Rocky Jordan, left his home around 3:30 a. m. on March 13, 1977. Jordan was a friend who had been staying at defendant’s home. Defendant had been working on his pickup earlier that evening. His hands were scraped, cut and bleeding from working on the transmission, and he “was just in a flat mess”. He worked on the pickup from about 4:30 p. m. to 11:15 p. m. on March 12, 1977. Defendant then went to Salt’s tavern, drank a beer and returned home. He sat around arguing with Rocky until about 3:30 a. m. Rocky wanted defendant to take him to a friend’s house on the north side and defendant agreed. They started out in the pickup but rail out of gas in front of the Rainbow Paint Company about 3:45 a. m. Defendant left the truck to look for a friend to take him to get some gas. While walking along the edge of the street, he saw state’s exhibits 1 through 4 scattered along the road down the street from the Rainbow Paint Company. He picked them up and put them in his back pockets. He had a calculator in his jacket pocket that belonged to his sister-in-law. Defendant walked to the corner of High and Holt streets to the home of a friend, and knocked on the door but could not arouse anyone. He started back down High Street and, at that time, was arrested by Officer Haun. Haun searched him and took state’s exhibits 1 through 4 out of his pockets. Haun did not take the calculator,- nor did he ask defendant where he got it. Defendant was booked into jail and was released on bond. He testified that he returned the calculator to his sister-in-law who lived in North Kansas City. He said the calculator was about 6 inches long, 2 inches wide and ¾ inch thick.

On cross-examination concerning the calculator, the following exchange occurred between the prosecutor and defendant.

“Q. I suppose you had the calculator with you while you were working on the truck? A. No, sir, but when I went in, well, I took it with me. If I had a chance to buy anything, I’d buy it. Q. Well, what chance was there to buy anything at 3:45 to 4:00 on North Golden? A. You never know when you can buy something.”

Defendant denied breaking into the Rainbow Paint Company and stealing state’s exhibits 1 through 4. On further cross-examination, defendant admitted he had been convicted of the crime of cashing a forged check in 1969.

After the testimony was concluded, the trial court, as a part of its written instructions to the jury, gave Instruction No. 11 (MAI-CR 3.58) at the request of the defendant. Defendant did not request the giving of MAI-CR 3.60. After conviction, defendant timely filed a motion for a new trial, which was overruled by the trial court.

Defendant raises four points on appeal, which are as follows.

POINT ONE

Defendant contends that the trial court erred in admitting into evidence the testimony of Larry Dean Gilmore because evidence concerning a pocket calculator, which was missing from his desk in the office of the Rainbow Paint Company, put in issue a crime not charged in the information, to the prejudice of defendant. If the testimony of Gilmore concerning the stolen calculator was generally competent on any theory, for any purpose, the trial court cannot be convicted of reversible error for admitting it. State v. Seown, 312 S.W.2d 782, 789 (Mo.1958). The evidence regarding the stolen calculator was not, in our judgment, proof of a separate crime but was corroborative evidence constituting a part of one transaction, i. e., the stealing of articles from the interior of the building of the Rainbow Paint Company, and also was evidence to connect defendant with the stolen articles. As such, it was admissible. State v. Johnson, 447 S.W.2d 285, 291 (Mo.1969).

POINT TWO

Defendant next contends that the trial court committed reversible error in overruling his objection to the testimony of Larry Gilmore, for the reason that the prosecuting attorney failed to make timely disclosures to defendant of the existence or substance of statements made to the prosecutor by Larry Gilmore concerning the pocket calculator, despite defendant’s request for disclosure under Rule 25.32. The rule in question, in subsections A(l) through (9) lists nine different types of information that the state shall disclose to defendant’s counsel upon written request. Subsection A(l) of the rule refers to disclosure of the names and last known addresses of persons whom the state intends to call as witnesses, together with their written or recorded statements and existing memoranda reporting or summarizing part or all of their oral statements. The transcript in this case shows the following docket entry in the court’s minutes. “April 11, 1977 Defendant’s request for disclosure by state without court order filed.” However, a copy of the request is not included in the transcript, and we are not able to ascertain, as a fact, from any record filed in this court, that the state was ever asked to produce a copy of a written statement of any witness, or a sum-marization of their oral statement. On appeal, the transcript should contain all of the record, proceedings and evidence necessary for the determination of all questions presented to the appellate court for decision, Rule 81.12(b), and, where error is alleged, the burden is on the defendant to file a complete transcript for appellate review, including all exhibits. State v. Dodson, 556 S.W.2d 938, 947 (Mo.App.1977).

Defendant, despite this deficiency in the record, suggests that we seine the transcript and piecemeal glean from the record what transpired between the prosecutor’s office and defendant’s attorney regarding the request for disclosure, whatever it may have been, as was done in State v. Tate, 543 S.W.2d 514 (Mo.App.1976). Although in Tate the appellate court did “glean” several facts from the transcript, after defendant had failed to incorporate his discovery motion therein, the appellate court made no judicial pronouncement that “gleaning” is mandatory, and we decline to do so here. Defendant’s attorney, when Gilmore was called to the stand, protested the state’s failure to disclose that Gilmore would testify as to his missing calculator. He did not move for a mistrial, ask for a continuance so that he could interview Gilmore or further investigate the matter, or file a motion to suppress the evidence. Defendant did not preserve this point for review because there was no specific objection made, nor relief sought, at the time the alleged error occurred at trial. State v. Drake, 514 S.W.2d 653, 657 (Mo.App.1975). We have not been asked to consider this point under the doctrine of plain error, Rule 27.20(c) and we decline to do so, as such doctrine is only activated when the alleged error affects the substantial rights of the defendant and results in manifest injustice or a miscarriage of justice. State v. Howell, 543 S.W.2d 836, 838 (Mo.App.1976). The defendant has the affirmative burden of showing such prejudicial error, State v. Richards, 536 S.W.2d 779, 788 (Mo.App.1976) and has not done so here. Exclusion of evidence not produced on discovery is a matter within the sound discretion of the trial court, and the appellate court will not reverse the trial court’s decision to admit such evidence unless its admission resulted in fundamental unfairness or prejudice to the substantial rights of the defendant. No such unfairness or prejudice occurred here. Defendant vigorously cross-examined both Larry Gilmore and Officer Haun concerning the calculator missing from Gilmore’s desk and the calculator taken from the defendant’s person at the time of his arrest. In addition, defendant took the stand, denied burglarizing the paint company and denied stealing Gilmore’s calculator. Information regarding the missing pocket calculator was revealed to defendant at the preliminary hearing long before trial, and Gilmore’s name and address, as a possible state’s witness, was endorsed on the amended information. Defendant had ample time to interview Gilmore and find out exactly what his testimony was going to be. He was not prejudiced by the trial court’s decision to allow Gilmore to testify.

POINT THREE

Defendant next claims manifest injustice as the result of the trial court giving Instruction No. 11 (MAI-CR 3.58), at defendant’s request, without also giving MAI-CR 3.60 as an instruction to the jury. Defendant’s attorney did not request the giving of MAI-CR 3.60, which is one of the instructions in the group labelled “Required if Requested”. At time of trial, he made only a general objection to the instructions given, and made no specific objection to the failure of the trial court to give MAI-CR 3.60 in his motion for new trial. Rule 20.03 dictates the proper procedure for preserving such alleged error, and that procedure was not followed here, nor was the error preserved for review. We decline to review under the plain error doctrine, as urged by defendant. The manifest injustice standard of review in plain error cases involving instructions is applied on a case-by-case basis and, in so doing, the court should adopt a practical view of the result of the failure to give the instruction. State v. Sanders, 541 S.W.2d 530, 533-534 (Mo. banc 1976).

MAI-CR 3.58 (Instruction No. 11), given at the request of defendant, reads as follows:

“If you find and believe from the evidence that defendant was convicted of the offense of Uttering a Forged Instrument, you may consider that evidence for the sole purpose of deciding the believability of the defendant and the weight to be given to his testimony and for no other purpose. You must not consider such previous conviction as any evidence that the defendant is guilty of any offense for which he is now on trial.”

MAI-CR 3.60, not requested and not given, reads as follows:

“If you find and believe from the evidence that the defendant was (involved in) (convicted of) (an offense) (offenses) other than the one for which he is now on trial (and other than the offense mentioned in Instruction No_), you may consider that evidence on the issue of (identification) (motive) (intent) (absence of mistake or accident) (presence of a common scheme or plan) ([specify other purpose for which the evidence was received as substantive evidence of guilt]) of the defendant (and you may also consider such evidence for the purpose of deciding the believability of the defendant and the weight to be given to his testimony). (You may not consider such evidence for any other purpose.)”

In this case, the failure of the trial court to give MAI-CR 3.60 could not have misled the jury. The charges against defendant were burglary and stealing. Since the calculator was only one of the items allegedly stolen, the others being state’s exhibits 1 through 4, the stealing of it was not a different crime at all, but was merely cumulative evidence of stealing. Such evidence did not “involve” defendant in an unrelated crime. We find no manifest injustice or miscarriage of justice in the failure of the trial judge to give the instruction in question.

POINT FOUR

In his last point on appeal, defendant contends that the trial court erred by refusing to sustain appellant’s motion for verdict of acquittal at the close of all of the evidence because the state had failed to make a submissible case to support the charge made against the appellant in the information. We disagree with this contention. On appeal, we consider the facts in evidence and all favorable inferences to be drawn therefrom in a light most favorable to the state, State v. Nichelson, 546 S.W.2d 539, 542 (Mo.App.1977) disregarding all evidence and inferences to the contrary. State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).

Without rehashing the evidence outlined above, we deem that it was more than ample to sustain the conviction, and that the citing of like cases involving similar factual situations would have no preceden-tial value.

The judgment is affirmed.

FLANIGAN, C. J., and TITUS, J., concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R.


author: TITUS, Judge.

text:
    Edward R. HALEY, Executor of the Estate of Marie Thompson, Deceased, Plaintiff-Appellant, v. CITY OF LINN CREEK, Missouri, Vera Fairchild and Grand Glaize Airways, Inc., Defendants-Respondents.
    No. 11155.
    Missouri Court of Appeals, Southern District, En Banc.
    June 19, 1979.

      John F. Low, Low & Honssinger, Lebanon, for plaintiff-appellant.
    Charles E. McElyea, Phillips, McElyea, Walker & Carpenter, Camdenton, for defendants-respondents.
   TITUS, Judge.

Marie Thompson, as plaintiff, brought this action in five counts against the City of Linn Creek, Missouri, Vera Fairchild, and Grand Glaize Airways, Inc., seeking cancellation of certain leases and contracts, an accounting for rents and profits and additional relief.

After trial but prior to entry of judgment by the circuit court, Marie died. Thereafter, on May 18,1978, the court entered judgment in the name of the deceased plaintiff, finding for her on some issues and against her on others. On June 1, 1978, decedent’s former attorney filed a suggestion of Marie’s death and a motion for substitution of parties in the trial court. An order substituting Edward Haley, the decedent’s executor, as plaintiff in the cause was issued on June 13, 1978. Haley now brings this appeal from the judgment of the circuit court.

The right of appeal is purely statutory [Rule 81.01, V.A.M.R.; Jones v. Washburn, 560 S.W.2d 604, 606 (Mo.App.1978)], and the relevant portion of § 512.-020, RSMo 1978, grants a right of appeal only to parties aggrieved by “any final judgment in the case.” While the finality of the judgment has not been questioned by any party to this appeal, we have a duty to inquire and determine, ex mero motu, whether a final appealable judgment has been rendered by the trial court, and the appeal must be dismissed, sua sponte, if finality is found lacking. Jones v. Washburn, supra, 560 S.W.2d at 605-606; Caudle v. Kelley, 545 S.W.2d 427, 428-429 (Mo.App.1976).

The judgment entered by the trial court has never been amended to reflect the substitution of Edward Haley as plaintiff in the cause. It remains a judgment for and against a dead person. While substitution of parties upon the death of a litigant may allow continuation of an action in a proper case (§ 507.100, RSMo 1978), it is apparent that no valid judgment can be rendered until such substitution is accomplished. Cole v. Parker-Washington Co., 276 Mo. 220, 207 S.W. 749 (banc 1918); Overstreet v. Overstreet, 319 S.W.2d 49, 51-52 (Mo.1958). The judgment in this case, entered in the name of the original plaintiff after her death, is absolutely null and void as there is no final and appealable judgment. The appeal is premature and must be dismissed. Claspill v. Craig, 546 S.W.2d 202 (Mo.App.1977). It is so ordered.

All concur, except FLANIGAN, C. J., re-cused.


author: PER CURIAM:

text:
    In re the MARRIAGE OF Bodine ANDREWS and John E. Andrews, III. Bodine Andrews, Petitioner-Respondent, and John E. Andrews, III, Respondent-Appellant.
    No. 11304.
    Missouri Court of Appeals, Southern District, En Banc.
    June 19, 1979.
    Don W. Owensby, Buffalo, for petitioner-respondent.
    Keith V. Williams, Springfield, for re-sponden1>appellant.
   PER CURIAM:

On October 31, 1978, a decree of dissolution of marriage (§§ 452.300 et seq., V.A. M.S.) yras entered by the Circuit Court of Laclede County. The action was instituted by the wife and the husband-respondent has appealed. The matter has been submitted to this court on appeal upon a statement of the case as permitted and provided by Rule 81.13, V.A.M.R.

A recasting of the statement of the case could provide undue embarrassment to the parties and would serve no precedential value. Nevertheless, with caution and a firm belief that the decree nisi is wrong in part as being against the weight of the evidence [Murphy v. Carron, 536 S.W.2d 30, 32[2] (Mo. banc 1976)], the decree herein should be and hereby is amended and modified in the following respects, otherwise to remain in full force and effect:

(1) The name and birth date of the minor child should be specifically stated in the decree as being Crystal Michelle Andrews, born January 23, 1978;

(2) The present financial circumstances of husband-respondent require that child support payments to be made by him should be in the amount of Fifty Dollars ($50.00) per month, and said decree should so provide;

(3) The circumstances of the parties and the lack of attentive affection by the husband-respondent for said minor child render visitation rights to him to be contrary to the best interests of the child at the present time, and said decree should so provide; and

(4) The decree should specifically set over as their separate property all property each of the parties had in their respective possession at the time of the rendition of the original decree.

The judgment and decree is reversed and in the respects specified, supra, and the cause is remanded with directions to amend and modify the decree in the particulars specified.

All concur.


author: HERSCHEL P. FRANKS, Special Justice.

text:
    Gilbert JEFFERS, Plaintiff-Appellant, v. STERLING GARRETT COAL COMPANY, Defendant-Appellee.
    Supreme Court of Tennessee.
    June 25, 1979.
    Sidney R. Seals, Sexton, Sexton & Beaty, Oneida, Tenn., for plaintiff-appellant.
    Frank Q. Vettori, O’Neil, Parker & Williamson, Knoxville, Tenn., for defendant-ap-pellee.
   OPINION

HERSCHEL P. FRANKS, Special Justice.

Plaintiff’s claim for permanent total disability benefits due to coal worker’s pneu-moconiosis under the Workmen’s Compensation Law was denied by the trial court.

Plaintiff, on appeal, assigns as errors, the failure of the Court to find plaintiff disabled by reason of coal worker’s pneumoco-niosis and failure to apply the appropriate standards for determining disability as directed by T.C.A., § 50-1102.

The complaint alleged that plaintiff was employed by defendant as a coal miner, became totally and permanently disabled due to coal worker’s pneumoconiosis and his occupational disease resulted from employment with the defendant. Defendant’s answer admitted the parties are bound by the Workmen’s Compensation Law, and joined issue on the allegations. The judgment in the case recites, in part, “[T]he Court finds all of the issues joined in favor of the defendant, Sterling Garrett Coal Company” and the suit was ordered dismissed with prejudice.

The issue thus becomes whether there is any material evidence to substantiate the conclusions of the trial court when the applicable standards are applied to the evidence. See Stratton-Warren v. Parker, 557 S.W.2d 494 (Tenn.1977).

In determining the applicable standards, T.C.A., § 50-1102, directs and provides in pertinent part:

In considering whether an employee has the occupational disease of coal worker’s pneumoconiosis and is totally disabled or dies therefrom all the presumptions, criteria and standards contained in or promulgated by reason of the Federal Coal Mine Health and Safety Act of 1969, Public Law 91-173, specified as the basis for determining eligibility of applicants for benefits because of said disease or its effects shall be used and be applicable under this law; .

In Blankenship v. Old Republic Ins. Co., 539 S.W.2d 23 (Tenn.1976) and Moore v. Old Republic Ins. Co., 512 S.W.2d 564 (Tenn.1974), this Court held that the statute “adopted the Federal law concerning coal worker’s pneumoconiosis as the law in Tennessee.” 512 S.W.2d at 567.

The portions of the Federal Coal Mine Health and Safety Act pertaining to coal worker’s pneumoconiosis are codified at 30 U.S.C. § 901, et seq. Regulations promulgated by the Secretary under the Act’s authority are set forth in 20 C.F.R. § 410.401 et seq.

Total disability is defined in regulation 20 C.F.R. § 410.412 as follows:

(a) A miner shall be considered totally disabled due to pneumoconiosis if:
(1)his pneumoconiosis prevents him from engaging in gainful work in the immediate area of his residence requiring the skills and abilities comparable to those of any work in a mine or mines in which he previously engaged with some regularity and over a substantial period of time, and
(2)His impairment can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than 12 months.

20 C.F.R. § 410.426 provides when various medical tests are not conclusive within the regulations, disability is to be determined by ascertaining whether the employee is able to perform other comparable work (to mining) in light of his experience and education, and further states:

A miner shall be determined to be under a disability only if his pneumoconiosis is or was the primary reason for his inability to engage in such . . . work. Medical impairments other than pneumo-coniosis may not be considered. [Emphasis supplied.]

Finally, a specific standard relating to miners employed for 15 years or more in coal mines is set forth in 30 U.S.C. § 921(c)(4), and provides:

(4) If a miner was employed for fifteen years or more in one or more underground coal mines, and if there is a chest roentgenogram submitted in connection with such miner’s, his widow’s, his child’s, his parent’s, his brother’s, his sister’s, or his dependent’s claim under this subchap-ter and it is interpreted as negative with respect to the requirements or paragraph (3)of this subsection, and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebut-table presumption that such miner is totally disabled due to pneumoconiosis, that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumoconiosis. In the case of a living miner, a wife’s affidavit may not be used by itself to establish the presumption. The Secretary shall not apply all or a portion of the requirement of this paragraph that the miner work in an underground mine where he determines that conditions of a miner’s employment in a coal mine other than an underground mine were substantially similar to conditions in an underground mine. The Secretary may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.

The presumption and conditions are substantially restated in 20 C.F.R. § 410.414(6).

The plaintiff worked as a bulldozer operator in various strip mines in and around Scott County, Tennessee for a period of 16 to 18 years. He was employed in that capacity by defendant from May 12, 1975 until June 23, 1975. On the latter date he suffered a heart attack and was not gainfully employed from that time until the date of trial.

Plaintiff’s testimony of employment for more than 15 years in strip mining was not contradicted. He described dusty conditions prevailing generally during his mining activities and exposure to coal dust, particularly when loading trucks. This evidence satisfies one of the two elements necessary to trigger the presumption created by 30 U.S.C. § 921(c)(4). The other element is “other evidence . . . demonstrating the existence of a totally disabling chronic respiratory impairment.” Petry v. Califano, 577 F.2d 860 (4th Cir. 1978).

At the trial medical evidence was introduced from three physicians, being Dr. Swann, a thoracic specialist engaged by the plaintiff; Dr. Hudson, also a thoracic specialist engaged by defendant; and Dr. Leeds, the plaintiff’s family doctor.

Plaintiff’s witness, Dr. Swann, diagnosed pneumoconiosis in plaintiff. Because the doctor in his experience had not observed the disease in a strip miner, he forwarded x-rays of plaintiff’s chest to Dr. Keith Morgan of the University of West Virginia, a nationally known authority in the field of “black lung” or pneumoconiosis. Dr. Morgan confirmed Dr. Swann’s analysis; Dr. Swann also concluded that plaintiff was disabled as a result of his pulmonary impairment. Dr. Leeds diagnosed pneumoco-niosis on the basis of x-rays and physical examinations and concluded plaintiff was totally disabled from all causes, apparently including his heart condition, which may not be considered in evaluating the employee’s disability from pneumoconiosis. See 20 C.F.R. § 410.426 supra.

Dr. Hudson diagnosed plaintiff’s pulmonary disorders to include bronchitis and emphysema. He stated the shadows on plaintiff’s x-rays were “consistent with” pneu-moconiosis, and he was of the opinion that plaintiff’s pulmonary problems alone would prevent his working in the mines.

The medical evidence establishes that (1) plaintiff presented “other evidence” of the existence of a totally disabling respiratory or pulmonary impairment and was thus entitled to the benefit of the rebuttable presumption that he is totally disabled due to pneumoconiosis; and (2) defendant presented no material evidence that plaintiff did not suffer from pneumoconiosis.

Thus, rebuttal turns on the issue of whether plaintiff’s respiratory disability arose out of, or in connection with, employment in a coal mine.

The case of Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797 (7th Cir. 1977) states:

[I]n the event that a claimant’s respiratory ailment has multiple causes, the hearing officer must determine that pneumo-coniosis is the most important or fundamental cause of the impairment. At p. 801.

While no fact finding appears in the record on this issue, the defendant has offered material evidence, i. e., the testimony of Dr. Hudson, that plaintiff’s pneumoconiosis is not the most important or fundamental cause of his pulmonary impairment. The pertinent evidence from the doctor’s testimony is:

Q. Doctor, as a result of your examination and the history, of course, that you obtained from this patient and all of the other information that you have in relation to the patient did you arrive at a diagnosis and, if so, what were those diagnoses?
A. Well, I concluded that he had chronic bronchitis and he had emphysema and that he had chest x-ray shadows which were compatible with simple pneumoco-niosis, .
Q. Doctor, do you have an opinion as to the cause of the emphysema you found in this patient with a reasonable degree of medical certainty?
A. In all probability it was from the cigarette smoking.
Q. Doctor, can you state with a reasonable degree of medical certainty how much of Mr. Jeffers’ pulmonary disability that you previously stated is related to his cigarette smoking?
A. Well, I would feel the major portion is. I think it’s impossible to quantitate just exactly how much each factor would interfere here but I think it’s clear that he has emphysema as well as these abnormal x-ray shadows and I would think with the data we have to go on that I would say cigarette smoking would account for the major portion of his illness.

The foregoing testimony is material evidence to sustain a determination by the trial judge that the most important or fundamental cause of plaintiff’s pulmonary impairment was emphysema, not arising out of or in connection with his employment in a coal mine, which satisfies one of the statutory bases to rebut the presumption afforded by 30 U.S.C. § 921(c)(4). We conclude, upon application of the standards and the material evidence rule, that the evidence sustains the judgment of the trial court.

The judgment of the trial court is affirmed. Costs of the appeal are adjudged against the appellant and his surety.

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

      . Plaintiff has appended to his brief a copy of what purports to be a letter from the trial judge to the attorneys in the case, setting forth certain findings and conclusions. The document does not appear in the record and no memorandum opinion was incorporated by reference in the final decree. We cannot consider the substance of the document; see Simmons v. Taylor, 106 Tenn. 729, 63 S.W. 1123 (1901).
      “[T]he filing of specific findings of fact in a compensation suit is not mandatory on the part of Chancery, Circuit and Criminal Courts. . However, . . [sjpecific findings by the trial court are of incalculable aid to this Court [and] ‘furnishfes] perhaps the only means by which this court could intelligently review the action of the court below’.” Murray Ohio Mfg. Co. v. Vines, 498 S.W.2d 897 at pp. 901 2 (Tenn.1973).

      . Medical tests performed on plaintiff by the various physicians were not conclusive.

      . The Peabody case also considers the meaning of the phrase “primary reason for his inability to engage in work” from 20 C.F.R. § 410.426, and concludes that primary means first in degree and importance of all respiratory ailments but not necessarily the first to develop.


author: FONES, Justice.

text:
    Mark H. HUDSON, Appellant, v. THURSTON MOTOR LINES, INC., Appellee.
    Supreme Court of Tennessee.
    June 25, 1979.

      Samuel L. Swann, Springfield, for appellant.
    Luther E. Cantrell, Jr., Smith, Davies, Smith & Cantrell, Nashville, for appellee.,
   OPINION

FONES, Justice.

This is an appeal from the trial court’s denial of workmen’s compensation benefits to plaintiff Mark H. Hudson, a twenty-three year old truck driver employed by defendant Thurston Motor Lines. The trial court found that Hudson was within the course of his employment at the time of his injury and that he suffered a ninety-two and one-half percent permanent partial disability. The only issue raised on appeal is whether the trial court was correct in holding that Hudson’s injury did not arise out of his employment. We reverse.

The material facts upon which that issue revolves were undisputed. Hudson worked as a truck driver, delivering freight for Thurston in the City of Nashville. His employer’s records revealed that on the date of the accident, July 1,1977, at approximately 9:00 a. m. he delivered a trailer load to Paschall Truck Lines and “bobtailed” back to the Thurston terminal. At 10:45 a. m. he was dispatched to Werthan Bag with a cargo consisting of eight rolls of paper. According to Richard Graham, a dispatcher for Thurston Motor Lines, Hudson was advised before he left that after the paper was unloaded at Werthan he would pick up other cargo to be returned to the Thurston terminal. Werthan was located on Eighth Avenue, six or seven miles across town from the Thurston terminal. Graham, testifying with the record of Werthan’s calls before him, said that the return cargo was scheduled for pick up at 1:00 p. m. at the request of Werthan. According to Graham and the employer’s records, Hudson called in from Werthan at 11:45 a. m., following standard instructions and practice, and Graham told him to “get his lunch and be back at Werthan by 1:00 because the appointment was at 1:00.” Hudson’s version of that telephone conversation was that he was instructed to “go get something to eat and bring it back and eat while they loaded, where I wouldn’t be gone so long, instead of driving all the way across town back to Thurston.” Hudson also said that but for the later scheduled loading at Werthan, he would have returned to Thurston and had lunch in the “break room” or at a nearby restaurant on Foster Avenue.

It was undisputed that although the Thurston city drivers could eat when and where they might select, it was expected that they would take into consideration the convenience of the employer and its customers, as well as their own, in selecting the time and place for lunch. Further, it was undisputed that if less than one hour was taken for lunch, the drivers were paid for the difference between the time actually taken and one hour. Parenthetically, we do not regard the discrepancy between Graham’s and Hudson’s versions of the instructions about lunch as material. It is clear that Hudson’s selection of the Kentucky Fried Chicken place a few blocks down Eighth Avenue from Werthan, was for the mutual convenience and economy of the employer, its customer, and perhaps himself.

It was a tragic choice. Hudson drove the tractor-trailer to the Kentucky Fried Chicken establishment located at Eighth Avenue and Jefferson Street, obtained an order to go, and while entering the truck’s cab, he was shot by two or three assailants, permanently paralyzing him from the waist down. The motivation for the assault is unknown. Hudson was carrying $195.00 in cash on his person that was not taken, nor was anything taken from the employer’s tractor-trailer.

I.

Many cases have reached this Court concerning the statutory requirement that a compensable injury arise out of the course of employment. It is well established under our law, as expressed by the Court in Travelers Ins. Co. v. Googe, 217 Tenn. 272, 279, 397 S.W.2d 368, 371 (1965):

“The phrase, ‘in the course of’ refers to time and place, and ‘arising out of’, to cause or origin; and an injury by accident to an employee is ‘in the course of’ employment if it occurred while he was performing a duty he was employed to do; and it is an injury ‘arising out of’ employment if caused by a hazard incident to such employment. Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940 (1964).”

The employer insists that the fact that Hudson was on his lunch break, during which time he was neither under the control nor direction of his employer, precludes an award of benefits as a matter of law. The question of whether lunch-time injuries are compensable involves whether the injury met the course of employment requirement, i. e., a consideration of “time, place and circumstances” factors. See Hendrix v. Franklin State Bank, 154 Tenn. 287, 290 S.W. 30 (1926). Injuries that occur while an employee is furthering or facilitating his employer’s business are incurred in the course of his employment. See 1 Larson, Workmen’s Compensation Law §§ 14, 15.50 (1978). Generally, injuries received during a lunch or dinner break and while the employee is off the premises are not compensa-ble under our Workmen’s Compensation Law. See, e. g., Greenfield v. Manufacturers Cas. Co., 198 Tenn. 452, 281 S.W.2d 47 (1955). It is obvious that the “premises rule” cannot be applied to the factual situation present here. As stated heretofore, Hudson was at a place selected for the convenience of his employer and its customer and his activities, at the time of his injury, were furthering and facilitating his employer’s business. We find that the record substantiates the trial court’s findings that Hudson’s injury occurred in the course of his employment.

II.

The issue of whether the accident arose out of the employment is a more difficult question. The standards that this Court has adhered to, throughout the history of workmen’s compensation litigation, although expressed in widely-varying language, center upon a showing of (1) a causal connection between the employment and the injury or (2) a risk incidental to or peculiar to the employment. Coverage has sometimes been rejected on the grounds that the risk or danger that caused the accident and injury was an exposure common to the public. In fact, the trial judge’s order denying compensation in this case was predicated upon the statement that “[pjlaintiff was exposed only to the risks common to all members of the community in going to eat lunch.” Professor Larson classifies the standards noted above as the “peculiar risk test.” He summarizes the trend of acceptability of that test as follows:

“Most courts in the past have interpreted ‘arising out of employment’ to require a showing that the injury was caused by an increased risk to which claimant, as distinct from the general public, was subjected by his employment. A substantial number have now modified this to accept a showing merely that the risk, even if common to the public, was actually a risk of this employment. An important and growing group of jurisdictions has adopted the positional-risk test, under which an injury is compensable if it would not have happened but for the fact that the conditions or obligations of the employment put claimant in the position where he was injured.
The peculiar-risk test, requiring that the source of harm be in its nature (as distinguished from its quantity) peculiar to the occupation, and the proximate-cause test, requiring foreseeability and absence of intervening cause, are now largely obsolete.” Larson, supra § 6.00.

We think it may be an oversimplification to classify various jurisdictions as following the peculiar-risk, the positional-risk or the actual-risk test, etc. In any event, the result we reach in this case is not to be construed as an adoption of the positional-risk test, or an abandonment of the peculiar-risk test.

Nevertheless, the standards employed by this Court in deciding whether accidents arise out of employment have led to diverse results.

In Carmichael v. J. C. Mahan Motor Co., 157 Tenn. 613, 11 S.W.2d 672 (1928), the trial judge sustained a demurrer to plaintiff’s declaration seeking workmen’s compensation for an injury sustained when a ten year old boy shot him in the eye with an air rifle. The boy’s father had brought his vehicle to the employer’s garage for repairs, accompanied by his son and two other minors. The boys were playing about the premises and employee was sweeping out the showroom when the shooting occurred.

The Court held that the injury was the result of conditions inseparably connected with the public service given by the petitioner’s employer to his patrons and that the injury could be fairly traced to the employment as the contributing proximate cause.

In Scott v. Shinn, 171 Tenn. 478, 105 S.W.2d 103 (1937), Scott was a driver-salesman of Nehi Bottling Company and was servicing a customer of his employer when he was shot and killed by an armed assailant, who may or may not have intended to rob a dog wagon lunchroom. It was stipulated that Scott was shot while in the course of his employment. The Court held that the accident did not arise out of the employment.

In response to the argument that Scott’s employment caused him to be in that place of danger, the Court said it was not enough that the accident would not have happened if he had not been in that place but that it must have resulted from something he was doing in the course of his work or from some peculiar danger to which the work exposed him. The Court concluded that “walking in on a hold-up cannot be said to have been a peculiar danger to which his work exposed him” and therefore no causal connection was found between Scott’s employment and his injury. 171 Tenn. at 484, 105 S.W.2d at 105.

Two years after Scott v. Shinn, supra, this Court concluded that a travelling man’s death in a hotel fire of unknown origin arose out of his employment. Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211 (1939). Mr. Justice Dehaven wrote both opinions. Hodges was a travelling salesman for Carter Candy Company, spending the night in a hotel in Atlanta, that was directly on the regular route usually followed in covering his assigned territory. Hodges perished in the fire of unspecified origin that destroyed the hotel in the early morning hours. The Court found that Hodges was in the course of his employment from the fact that he was on the regular route of his employer in going through Atlanta. The Court said that “deceased met his death in an accident growing out of his employment.” 175 Tenn. at 103, 132 S.W.2d at 214. That conclusion was reached without specific reference to any of the principles cited in Scott. The Court apparently relied for authority upon a quotation from Whiting-Mead Commercial Co. v. Industrial Accident Comm’n., 178 Cal. 505, 173 P. 1105 (1918). The gist of the quotation from the California court’s opinion was that a travelling salesman on his employer’s business must eat and sleep and put up at hotels and boarding houses and otherwise “minister[s] unto himself;” that those acts contribute to the furtherance of his work, are inevitable incidents and such dangers as attend them and produce accidental injuries arise out of the employment. 175 Tenn. at 103-04, 132 S.W.2d at 214.

In Whaley v. Patent Button Co., 184 Tenn. 700, 202 S.W.2d 649 (1947), an ex-employee appeared at the button factory nine days after he had quit or was discharged and shot three or four employees through a window with a .22 rifle. Plaintiff and the other employees that were shot were working on button molding machines similar to the one formerly operated by the ex-employee. The Court held that this fact was sufficient to provide a causal connection between the conditions under which the work was performed and the resulting injury and was therefore compensable.

In Thornton v. R. C. A. Service Co., 188 Tenn. 644, 221 S.W.2d 954 (1949), an employee whose, job necessitated travel from one job town to another job town, was shot while eating at a restaurant along his route during a lunch period, by a stranger who was insane, drunk, or otherwise irresponsible. The Court observed that Thornton would not have been in that particular restaurant on that occasion if he had not been travelling on the business of his employer, but that being in the course of his employment was not sufficient for recovery, as the injury must have arisen out of the employment. The Court distinguished the facts in Thornton from cases such as Whaley, wherein it had allowed recovery on the finding of a causal connection between the employment and the assault. Relying principally on Scott v. Shinn, supra, the Court denied compensation.

In Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389 (1954), the Court, with two members dissenting, denied compensation. The employee was riding in the employer’s truck at the end of the day’s work to employer’s furnished sleeping quarters when a storm struck the truck and Jackson was killed. The Court said compensation depended upon two questions, whether the causative danger was peculiar to Jackson’s work and not common to the neighborhood, and whether such an injury could reasonably have been contemplated as a risk incident to Jackson’s duties.

The Court cited a number of “borderline decisions” which were said to, nevertheless, have the common thread of an injury arising from a foreseeable risk incident to the employment. Whaley was cited and then excluded from that characterization and singled out as being predicated upon a causal-connection between the injury and the employee’s operation of a machine that the discharged aggressor had formerly operated, “which seemed to satisfy [the Court].” 197 Tenn. at 138, 270 S.W.2d at 390. Carmichael was also one of the borderline eases cited as a foreseeable risk case, but was not singled out for comment, which seems to indicate that the Jackson Court felt that Whaley rested on more precarious ground than Carmichael.

The majority opinion made these interesting comments about Carter v. Hodges, supra :

“It was held to be a compensable injury on the ground that the danger of being injured by the hotel burning is a danger incident to staying in a hotel at night. No reasoning is necessary to sustain the statement that the burning of the hotel is a foreseeable hazard. The rigid laws aimed at prevention of fires in hotels, and laws with reference to fire escapes therein, and other such laws, conclusively illustrate that the hazard of fire in a hotel is generally recognized. Thus it was a foreseeable hazard incident to the employment; therefore, compensable.” 197 Tenn. at 139, 270 S.W.2d at 391.

With that new light shed upon Hodges, it would appear that the instant case falls squarely within its scope. Assaults and shootings and armed robberies are as much a danger in the 1970’s as a hotel fire, occur with far greater frequency, and have laws aimed at their prevention, so we are justified in reaching the same conclusion, to wit, that what happened to Hudson at Eighth and Jefferson in Nashville, Tennessee, was a foreseeable hazard incident to the employment of a truck driver of a motor freight line.

In our leading assault cases, this Court appears to have focused upon the motive of the assailant and disregarded any risk that may have been incidental to the employment environment. We think the correct resolution of this case involves a consideration of the risks and dangers inherent in a truck driver’s employment, rather than the objective of the assailants. No one can quarrel with the conclusion that a truck driver for a motor freight carrier is exposed to the hazards of the streets and highways to a substantially greater extent than is common to the public. That is the basis for the street-risk rule, which simply stated, is that the risks of the street are the risks of the employment, if the employment requires the employee’s use of the street. See Larson, supra, § 9.40. As might be expected, the Courts differ as to the degree of exposure, in excess of that of the general public, required to invoke the doctrine, but a truck driver for a motor freight line is within the scope of the street-risk doctrine under the most restrictive test.

Two Tennessee cases, Central Surety & Ins. Corp. v. Court, 162 Tenn. 477, 36 S.W.2d 907 (1931) and Crane Rental Service v. Rutledge, 219 Tenn. 433, 410 S.W.2d 418 (1966), are cited by Professor Larson as being among the many courts that have announced the street-risk rule. We think it is doubtful that this Court had any recognition that it was adopting that rule in the cases cited, but they are nevertheless subject to the interpretation that the Court sanctioned the principle that if the employment exposes the employee to the hazards of the street that it is a risk or danger incident to and inherent in the employment and provides the necessary causal connection between the employment and the injury-

The street risk doctrine is not limited to accidents between vehicles on the streets and highways. See Katz v. A. Kadans & Co., 232 N.Y. 420, 134 N.E. 330 (1922). It includes assaults and highway robbery. Professer Larson cites the leading cases so holding, in the course of making these comments:

“The street-risk doctrine as applied to assaults is another common application of the general rule granting compensation when the assault arises out of a risk associated with the situs of the work. And just as the majority of street-risk cases now are based on the actual-risk rather than the increased-risk test, so the same broad standard is applied to assaults upon those whose work takes them upon the highway.34 Highway robbery is per-
34 State Compensation Ins. Fund v. Industrial Comm’n, 80 Colo. 130, 249 P. 653 (1926):
‘Robbers have always been and are an ordinary risk of the road—a risk, it is true, that all travelers, whether employed like this man or not must run—yet this man’s employment was to go and come; it was then a part of his work, and death arose out of it.’ 249 P. at 655.
haps the most common fact situation to which this rule is applied, since, as one court pointed out, ‘its name indicates that it is a danger incident to, connected with, and “arising out of” the use of highways.’35 Note that in these cases the
35 Beem v. H. D. Lee Mercantile Co., 337 Mo. 114, 85 S.W.2d 441, 110 A.L.R. 1044 (1935).
exposure to the risk on the highway is in itself enough to establish the causal connection; there need be no evidence of carrying the employer’s money or of protecting his property.36
36 Beem v. H. D. Lee Mercantile Co., N. 35 immediately supra." Larson, supra § 11.11(c).

Employer emphasized upon the trial of this case and in argument to the trial judge that as Hudson entered the cab of the tractor he felt a gun on his neck, turned around, and before any words were exchanged he was shot several times; that Hudson did not know any of his assailants and presumably they did not know him and that they did not take any money from him. In the course of proving that nothing was stolen from the tractor-trailer the employer proved that while the tractor had an antenna for a CB radio, the company did not furnish a radio, that being the prerogative of the individual driver and that Hudson did not have a CB radio. In fact there was no proof that there was anything of value in or on the tractor-trailer that could have been taken by the robbers and the implication is that there was nothing to steal except the tractor-trailer itself.

Counsel for the employer stated in argument to the trial court that if Hudson had in fact been trying to protect the property of Thurston Motor Lines, “I think that possibly Your Honor would have something on which to base it,” presumably an award of compensation. As we said heretofore, we do not think that knowledge of the motivation behind the senseless attack upon Hudson or whether the object was personal theft or employer theft provides the proper basis upon which to determine compensability. But, if such is conceived to be essential to justify an award in this case, we believe there was sufficient nexus between the assault and Hudson’s employment. It is beyond question that the one thing that distinguished Hudson from other members of the general public that were in and around the Kentucky Fried Chicken establishment was the fact that he was the driver of the Thurston Motor Lines tractor-trailer that had a CB antenna, and presented the potentiality, to the assailants, of worthwhile loot for theft of the vehicle which was the responsibility of Hudson. He was charged with responsibility for this valuable equipment, during his lunch hour as well as during working hours. He had been instructed to return to Werthan to have it reloaded at a different dock or area from that where it was unloaded. His assailants selected the moment he was attempting to enter the cab and return to Werthan as the favorable opportunity to make their move, and this combination of circumstances produced the tragic result of gunshot wounds to Hudson. We think these circumstances provide a rational connection with the employment analogous to that found to exist in Carmichael and Whaley. That circumstance also distinguishes this case from Scott and Thornton. In each of those cases there was nothing to identify the employee with his employment, at the time and place of the assault. Further, both occurred inside eating establishments, removing them from the scope of the street-risk doctrine.

The judgment of the trial court denying compensation is reversed, and this cause is remanded to the Circuit Court of Davidson County, Tennessee for the entry of a judgment awarding the compensation benefits found by the trial judge to be due if the accident were covered, and for such other proceedings as may be necessary and appropriate. Costs are adjudged against Thur-ston Motor Lines, Inc.

HENRY, C. J., and COOPER, BROCK and HARBISON, JJ.


text:
    James C. KRAUSE, Huey C. Krause, Petitioners, v. Jackie D. TAYLOR, Administrator of the Estate of Glenn D. Taylor, Deceased, Respondent.
    Supreme Court of Tennessee.
    June 25, 1979.

      Campbell Smoot, Haynes, Hull & Smoot, P.A., Tullahoma, for petitioners.
    Marvin E. Gordon, Shelbyville, for respondent.
   OPINION

FONES, Justice.

After a jury verdict for all defendants in this wrongful death action, plaintiff filed a motion for new trial and later an amended motion for new trial. One of the grounds relied upon in the original motion was that juror Bert Lee had falsely answered that he had never been a plaintiff or a defendant in any court, when in fact he had been indicted, tried and acquitted in a proceeding in the United States District Court, Eastern District of Tennessee. The amended motion for new trial asserted that juror Bert Lee was ineligible and incompetent to serve as a juror because he had been tried on a two-count indictment in the United States District Court, Middle Division of Tennessee and convicted of violating 18 U.S.C. §§ 495, 1341 (1970).

The trial judge overruled plaintiff’s motion for a new trial as to defendants James and Huey Krause, without comment on any of the grounds asserted by the plaintiff. A new trial was granted as to defendant Steve Noble, also without comment, but obviously not on the ground that Bert Lee was an incompetent juror.

Two members of the Court of Appeals panel reached the result that juror Lee was disqualified and that plaintiff was entitled to a new trial as to defendants James and Huey Krause, but for different reasons. The third member of that Court held that the federal conviction was in “another jurisdiction” and thus no infamy judgment under the Tennessee statute, relying upon Burdine v. Kennon, 186 Tenn. 200, 209 S.W.2d 9 (1948), and that the only portion of the federal court proceeding that appeared in this record failed to establish clearly that juror Lee was convicted of a crime within the scope of the Tennessee infamy statute. In addition, the dissenting member of the Court of Appeals observed that where the juror was not questioned about the federal court cases and there was no showing of prejudice to plaintiffs resulting from his failure to disclose voluntarily those facts, the granting or denying of a new trial was discretionary with the trial judge.

Because of a deficient record, we are unable to reach the merits of the issues of whether or not Bert Lee was an incompetent juror, and, if so, whether a new trial was mandated, under the facts of this case.

Juror Lee was not asked on voir dire if he had been indicted or convicted in any court, presumably because none of the litigants or lawyers was aware that someone named Bert Lee had been indicted, tried and found not guilty of several offenses in a proceeding in the United States District Court for the Eastern Division of Tennessee in 1969, and tried and convicted in the United States District Court for the Middle Division of Tennessee in September 1970. To raise the issue of juror Lee’s alleged incompetence on the motion for new trial, it was incumbent upon the plaintiff to prove (1) a federal court conviction of a crime falling within the Tennessee infamy statute and (2) that the person convicted was the same person as the juror alleged to be incompetent.

The bill of exceptions, authenticated and filed in this case, contains no evidence whatever on either one of those two requisite factual issues.

The motion for new trial and the amended motion for new trial are in the technical record. Plaintiff attached to his original motion an indictment filed July 8, 1969, in criminal action no. 1461 in the United States District Court, Eastern District of Tennessee, styled United States of America v. Bert Lee and an order of acquittal. He attached to his amended motion for new trial an order filed October 6, 1970, in action no. 14584 in the United States District Court, Middle Division of Tennessee, styled United States of America v. Bert Lee, reciting that upon a plea of not guilty and a jury verdict of conviction of violating 18 U.S.C. §§ 495, 1341 (1970), defendant was sentenced to three years on each of two counts, to run concurrently, and suspending all but forty-five days of said sentence.

When any ground relied upon for a new trial is predicated upon facts that were not adduced upon the trial of the cause, they must be put in evidence upon the hearing of the motion for new trial, subject to the same rules that prevail at trial. Likewise, such evidence that is adduced at the hearing of the motion for new trial must be preserved and included in the bill of exceptions, subject to the same rules that apply to the evidence adduced at trial itself.

Tennessee Rules of Civil Procedure 44.01 provided the methods of authentication of official records for use as evidence when admissible for any purpose. All evidence, whether presented at trial or in support of a motion for new trial, and whether testimony of witnesses vive voce, affidavits, depositions or official records, must be incorporated in a bill of exceptions to be considered on appeal. A single exception to this rule is noted below in discussing Jones v. Stockton, 74 Tenn. 133 (1880). The inclusion in the technical record of affidavits and documentary evidence such as official records of proceedings in federal court does not preserve such evidence for consideration on appeal. In Jones v. Stockton, supra, the trial court’s judgment, adverse to plaintiff, recited that an affidavit and a power of attorney had been read and considered by the Court and that “said affidavit and power are made a part of the record in this cause, and ordered to be included in the transcript.” 74 Tenn. at 134. Those documents were copied into the transcript on plaintiff’s- appeal, but the Court held that it could not consider that evidence unless it was (1) embodied in the bill of exceptions or (2) incorporated into an order or decree signed by the trial judge and entered upon the minutes of the trial court. The Court’s reason for considering documents or other evidence not in the bill of exceptions but thus authenticated by the trial judge was stated as follows:

“If an affidavit or other paper acted on by the lower court be entered upon the minutes of the court and signed by the judge, it has been said that this court would notice it, as it certainly will any recital of facts in an entry thus signed. The reason is, that the judge thereby authenticates the fact or the paper precisely as if it had been embodied in a bill of exceptions signed by him. But a mere reference to a document in an entry signed by the judge is not sufficient.” 74 Tenn. at 134-35.

The Stockton Court cited and quoted with approval from Wynne v. Edwards, 26 Tenn. 418 (1846). In Wynne there was an order signed by the trial judge directing that certain documents be made a part of the record, which was done, but the Court refused to notice them on appeal, saying:

“[BJefore extraneous matters can become part of the record, it must be examined and authenticated under the hand and seal of the judge; . . . . Upon what principle, then, can a judge make an order that deeds, bonds, notes, deposition, etc., shall become a part of the record, and leave it to the clerk to certify them and authenticate them? It is his duty to do it himself; much mischief might result from such a practice, and we cannot support it.” 26 Tenn. at 419-20.

Baldwin v. State, 204 Tenn. 639, 325 S.W.2d 244 (1959), involved an affidavit of a juror filed as an exhibit to the defendant’s motion for new trial, which appeared in the technical record, but not in a bill of exceptions. In rejecting consideration of the affidavit the Court cited and relied upon Koehn v. Hooper, 193 Tenn. 417, 246 S.W.2d 68 (1951); Broestler v. State, 186 Tenn. 523, 212 S.W.2d 366 (1948); Hayes v. State, 130 Tenn. 661, 172 S.W.2d 296 (1914); Shelby Co. v. Bickford, 102 Tenn. 395, 52 S.W. 772 (1899). The Baldwin Court also cited with approval Odeneal v. State, 128 Tenn. 60, 157 S.W. 419 (1913), wherein the testimony of witnesses, presented on a motion for new trial, was not considered on appeal because the bill of exceptions failed to show that it contained all of the evidence offered on the motion for new trial. To the same effect is the more recent case of Johnson v. State, 201 Tenn. 11, 296 S.W.2d 832 (1956).

Chief Justice Neil, writing for the Court in Baldwin, summarized the rationale that dictates adherence to the rules requiring evidence to be preserved in a Bill of Exceptions as follows:

“It has been the rule in this Court for many years that a bill of exceptions to become a part of the record must be complete in every particular, including all the evidence in the ease and the ruling of the trial judge upon every controversial issue. When it is once signed and thus authenticated no one may take anything from it or add to it.
‘To have the rule to mean less or more is to make it mean nothing. If it can be added to for one purpose, it can be for all purposes. If it (the bill of exceptions) may be amended in one particular, it may be in every. And so the entire bill of exceptions could be, and often would be, changed throughout.’ Cosmopolitan Life Ins. Co. v. Woodward, 7 Tenn.App. 394, 409.” 204 Tenn. at 643-44, 325 S.W.2d at 246.

Also in Baldwin, the argument was made, that could be made herein, to wit, that from the fact of the affidavit (federal court record herein) it is apparent, “ ‘that nothing could be added to them by incorporating them in a bill of exceptions.’ ” 204 Tenn. at 645, 325 S.W.2d at 247. Responding, Chief Justice Neil said:

“Conceding that this argument of counsel is meritorious as applicable to the case at bar we are not privileged to make an exception to the general rule to which we have adhered to for many years. For us to do so would wreck the rule relating to appellate practice and procedure in that other exceptions would be insisted upon from time to time with the result that no record could be considered as complete in any case.” 204 Tenn. at 645, 325 S.W.2d at 247.

See also, e. g., Driscoll v. State, 191 Tenn. 186, 232 S.W.2d 28 (1950); Mitchell v. State, 3 Tenn.Cr.App. 494, 464 S.W.2d 307 (1971); Letner v. State, 512 S.W.2d 643 (Tenn.Cr.App.1974).

The rules of practice pronounced in the cases cited herein were not changed or altered by the adoption of Rule 43.05 or Rule 59, T.R.C.P.

Further, to reach the issue urged by plaintiff we would have to assume, without any proof whatsoever, that juror Bert Lee was the same Bert Lee who was named as a defendant in the records from the United States District Courts appearing in the transcript. For the reasons stated, we cannot indulge any such assumption.

The judgment of the Court of Appeals is reversed and that of the trial court affirmed. Costs of this appeal are adjudged against plaintiff.

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