text:
    Marjorie Ann GILLESPIE, Appellant, v. Richard Allen GILLESPIE, Respondent.
    No. 40451.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 20, 1979.

      Gerald M. Poger, Mann & Poger, A. Thomas DeWoskin, Clayton, for appellant.
    Clifford Schwartz, Shaw, Howlett & Schwartz, Clayton, for respondent.
   DOWD, Presiding Judge.

This is an appeal from a decree of divorce granting custody of a four year old girl to her father. The child’s mother, the appellant in this case, raises two points of alleged error both of which arise from the trial court’s award of custody to the father.

The appellant initially claims that the trial court misapplied Missouri law in that: 1) the trial court did not give sufficient weight to evidence adduced under § 452.-375(4) and (5), RSMo 1977, 2) the trial court did not indulge the “tender years” presumption, and 3) the trial court did not apply the Missouri rule that frequent shuttling of a child between parents is not in the child’s best interest.

The appellant contends in her second point that the custody decree is against the weight of the evidence.

In this court tried case, this court pursuant to Rule 73.01 will review the case both on the law and the evidence, due regard being given to the trial court’s unique capacity to judge the candor or sincerity of the witnesses. L. H. Y. v. J. M. Y., 535 S.W.2d 304, 305-306 (Mo.App.1976).

Marjorie and Richard Gillespie were wed in February, 1970. A girl, Stephanie, was born to the marriage in February of 1974. Appellant separated from her husband in May of 1977 and subsequently sought a divorce.

At the time of trial appellant was employed full-time as a secretary earning a gross income of $604 a month. She worked five days a week and occasionally on Saturday mornings. Appellant would leave the child at a nursery school during the day and return for her in the early evening after work. By agreement prior to divorce the father and mother divided custody of the child, the father having her on Wednesday, Thursday and Friday nights and the mother having custody on the remaining nights of the week. This arrangement was modified some months before the divorce action was filed to allow the mother to bowl on Tuesday nights. From the date of separation appellant lived with her parents in a one bedroom apartment. The appellant and her child slept on a sofa bed in the living room of the apartment. Appellant felt it was important for her daughter to have her own bedroom but had made only minimal efforts to obtain other accommodations for herself and the child. She stated that she had looked at several apartments but had made no definite plans for relocation in the near future. Appellant planned to use her share of the proceeds from the sale of the family residence to purchase new furniture, pay off a debt owed her parents and pay her attorney’s fees.

Appellant would occasionally go to a discotheque on Friday nights and would go to a bar for a drink with her friends after bowling on Tuesday evenings. On these evenings the child would be left with her father.

There was some evidence that the child’s maternal grandparents with whom she and her mother were living were experiencing marital difficulties.

Appellant was treated in 1970 for a nervous condition. She was prescribed valium and another medication for her stomach. At the time of trial she stated that she suffered from some shaking of the hands and that she would occasionally take a vali-um pill. She felt that this situation did not diminish her capacity to work and care for her child.

The respondent, the father, had been living with his mother and sister in a one bedroom house for two weeks prior to trial. When respondent had custody of the child, he would share a bed with the child in a dining room which had been converted into a bedroom. Occasionally the child would sleep with respondent’s mother in her bed. Respondent testified that upon division of the marital property his share of the proceeds from the sale of the family residence would enable him to purchase another home where his daughter could keep her pets. He had visited several apartment houses with a view to renting one but had been turned away either because he had a child or pets or both.

Respondent had no regularly scheduled social activities, however, he testified that he did go out in the evening and had on one occasion been out all night leaving his daughter with his mother.

Respondent was employed, at the time of trial, in the field of telecommunications earning a gross income of $800 a month. He had worked at seven jobs during the past four years. Respondent stated that he was laid off due to work slow downs and was, in one instance, discharged from a job for insubordination.

The respondent was classified 4F by the military as unfit for service due to spondy-losis and a personality problem. There was no further evidence presented at trial as to either difficulty other than respondent’s testimony that his spinal disease had not affected his ability to work or care for his child.

Respondent testified that both he and appellant had bathed with their daughter. Both mother and father produced witnesses who testified as to their respective parenting abilities. Neither parent appeared to be a perfect parent but we do not believe such a person exists. It appears from the record that both mother and father love the child and are anxious to provide her with the best care possible.

This is a close case. As such, appellant, in her first point, urges that the trial court should have indulged the tender years presumption thereby granting her custody of the child. It is appellant’s position that under Missouri law the custody of a child of tender years should ordinarily be awarded to the mother particularly where the child is a girl. This principle is clearly recognized in Missouri, however, it is merely a rebuttable presumption and, therefore, not conclusive on the issue of child custody. Pearson v. Pearson, 575 S.W.2d 934, 935 (Mo.App.1978); L. H. Y. v. J. M. Y., 535 S.W.2d 304, 307 (Mo.App.1976). The paramount concern of the court in determining custody of the child, and one which overrides all presumptions, is that the child be provided with the best environment possible during the formative years. See, In Re Carmack, 550 S.W.2d 815, 818 (Mo.App.1977). The courts have not been unwilling to grant custody of young male and female children to the father in instances where the welfare of the child would be served by such an award. J. A. F. v. P. J. F., 552 S.W.2d 739, 741 (Mo.App.1977); M. L. v. M. R., 407 S.W.2d 600, 603 (Mo.App.1966).

Appellant complains that the trial court did not sufficiently consider evidence of the respondent’s alleged mental and physical problems as required by § 452.-375(5), RSMo 1974. There was no evidence presented, however, to show that respondent suffered from any mental problems. And although the respondent admitted to having a spinal disease there was no evidence that this physical condition would impair his ability to care for his child.

We do not find in our review of the evidence that the trial court’s decree placing custody of the little girl with the father was not in her best interest.

Appellant further submits, in her first point, that Missouri courts have held, as a matter of law, that frequent shuttling between parents is not in the best interests of the child. Appellant cites J. G. W. v. J. L. S., 414 S.W.2d 352 (Mo.App.1967) as the sole support for this proposition. In that case the father had custody of the children during the week, the mother having custody on the weekends. The court, in eliminating the frequent custody shifts, was swayed by both parents’ testimony that the children were experiencing anxiety and emotional stress incident to the frequent shifts. J. G. W. v. J. R. S., supra at 359. It was apparent that the children in J. G. W. case were suffering emotionally, not necessarily from the change in environment, but from actions taken by both parents calculated to turn the children against the parent not having immediate custody. There was no evidence presented in the instant case to suggest that these parents engage in such psychological warfare. Nor is there any indication that the shifts in custody between appellant and respondent were disturbing to the child. In fact the split custody arrangement in the final decree was approximately the same as that devised by the parties prior to the divorce. Appellant’s complaint appears in reality to be not that the split custody arrangement was disruptive to the child but that the respondent, and not appellant, was granted primary custody.

We do not believe that frequent custody shifts are contrary to the best interests of the child per se. In the absence of evidence that the arrangement upset the child we are loathe to deny either parent frequent contact with her. This is especially the case where neither parent has attempted to turn the child’s affections away from the.other and where neither parent has been shown to be unfit. M. L. v. M. R., supra at 604.

All parts of appellant’s first point are ruled against her.

The trial court awarded the father primary custody of the child. The mother was awarded temporary custody on the first, third, and fourth week of every month from 5:00 p. m. Friday until 5:00 p. m. on Monday. Appellant contends in her second point that this custody award is against the weight of the evidence. We have carefully reviewed the evidence and find that the trial court gave due regard to the child’s welfare and that the decree awarding custody of her to her father is not against the weight of the evidence. In a close case such as we are confronted with here we shall defer to the trial court’s assessment of the evidence. It has the opportunity to observe the parties and is, therefore, the better judge of their character and credibility. Pearson v. Pearson, supra at 935. '

Judgment affirmed.

CRIST and REINHARD, JJ.,. concur.


source: Caselaw Access Project

author: PREWITT, Judge.

license: Public Domain

text:
    Hazel Josephine TAYLOR, Plaintiff-Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a corporation, Defendant-Respondent.
    No. 11037.
    Missouri Court of Appeals, Southern District, Division Three.
    Nov. 21, 1979.
    Arthur T. Stephenson, Caruthersville, for plaintiff-appellant.
    James E. Reeves, Ward & Reeves, Ca-ruthersville, for defendant-respondent.
   PREWITT, Judge.

Plaintiff brought an action for personal injuries as a result of a collision between an automobile in which she was a passenger and defendant’s train at the intersection of a highway and railway line in Pemiscot County, Missouri. After a jury verdict and a judgment denying her claim, she appeals.

Plaintiff claims error in the introduction of two photographic exhibits. One is a composite of four photographs, three showing the train approaching the intersection and one showing the intersection without the train. The other exhibit shows a train approaching the intersection. All were taken from the edge of the highway on which plaintiff had been traveling. Appellant contends that the jury could have been misled into believing that the photographs showed the view of the train as it might have been seen by plaintiff or the driver of the vehicle in which she was traveling. We believe that our determination of the questions raised by appellant can be stated without reciting the factual details of the evidence.

The admissibility of photographs showing visibility and sight are within the trial judge’s discretion. Jones v. Smith, 372 S.W.2d 71, 79 (Mo.1963); West v. Jack Cooper Transport Company, 372 S.W.2d 642, 649 (Mo.App.1963), transferred and decided on other grounds. 381 S.W.2d 872 (Mo.1964). Here, other similar photographs were admitted in evidence and the transcript indicates that the trial court did not abuse its discretion, nor that prejudice to plaintiff occurred from the admission of these additional exhibits. The exhibits may have been of aid in showing the relationship of the train to trees and brush along the track and in generally determining the train’s visibility from the roadway. The defendant did not try to show that the photographs were taken from a point where plaintiff was when the train was in the position shown on the photographs. The exhibits were offered to show the general view and visibility of the train and the crossing. The jury was fully informed of the place and conditions of their taking, and the admission of them was not an abuse of the trial court’s discretion.

The judgment is affirmed.

All concur.


author: MAUS, Judge.

text:
    TRUCK INSURANCE EXCHANGE, Plaintiff-Appellant, v. Ralph L. HUNT and Sharon Sue Anderson, Defendants-Respondents.
    No. 10566.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 21, 1979.

      Bob J. Keeter, Schroff, Keeter, Glass & Newberry, P.C., Springfield, for plaintiff-appellant.
    Dónale E. Bonacker, Bonacker & Reynolds, Springfield, David W. Ansley, Wool-sey, Fisher, Whiteaker & Stenger, Springfield, for defendants-respondents.
   MAUS, Judge.

In this declaratory judgment action the plaintiff seeks to establish that Barry F. Hubbard was not on July 5, 1974, an insured under the “omnibus clause” of the liability coverage of a policy issued to T.A.G. Enterprises, Inc. The defendants are Hubbard (who defaulted), Ralph L. Hunt, Sharon Sue Anderson and James Edward Barke (who defaulted). The latter three defendants were allegedly injured in an automobile accident on July 5, 1974, involving the insured automobile while driven by Hubbard. The case was tried to a jury who found the issue submitted in favor of the defendants. Plaintiff’s first point on appeal is that the trial court erred in not directing a verdict for the plaintiff at the close of all the evidence. This is premised upon its proposition the defendants had the burden of proof to establish coverage and the evidence was not sufficient to support the verdict and judgment. By their brief the defendants agree that the burden of proof to establish coverage was upon them. However, as will be developed later, that agreement did not extend to all aspects of the case and certainly was not binding on the trial court. It is not always the burden of one claiming under a liability insurance policy to prove all issues upon which coverage is dependent. For example, if the insurer seeks to avoid coverage because of an exclusion or breach of condition subsequent, the burden of proof on such issues is upon the insurer. Mission Insurance Company v. Ward, 487 S.W.2d 449 (Mo. banc 1972); McNeal v. Manchester Ins. & Indem. Co., 540 S.W.2d 113 (Mo.App.1976); Michigan Mutual Liability Co. v. Stallings, 523 S.W.2d 539 (Mo.App.1975). In this case, as delineated by the evidence as distinguished from the pleadings, the sole issue was whether or not express permission to use the insured automobile had been terminated. Intriguing as that question in the abstract may be, in the circumstances of this case this court is not called upon to do so and does not decide which party generally bears the burden of proof on such issue.

The plaintiff’s first point requires a summary of the evidence. T.A.G. was the named insured in the automobile insurance policy in question in which a 1972 Ford was one of the described vehicles. T.A.G. was an investment company and had commercial property and real estate and a used car dealership. Its office was in Columbia. Carson Teel was President of T.A.G. Teel and a business associate decided to attempt to organize a mobile home manufacturing business. The associate introduced Hubbard to Teel. Hubbard had experience in the mobile home manufacturing business. Arrangements were made for Hubbard to help in organizing the business, primarily selling shares in a new company. Hubbard was to provide his own automobile and pay his own expenses. He had no instructions on where to go or whom to contact. His compensation was to be a job and a stock option. He started work in late April or early May. Early in May Hubbard’s automobile broke down. On or about May 10 Teel loaned the insured Ford, which carried a dealer’s tag, to Hubbard. Teel knew that Hubbard had no other automobile for his personal use and granted Hubbard unrestricted use of the automobile. No time limit was placed upon this use.

Approximately the first part of June, because of an adverse development concerning the proposed mobile home plant, Teel realized that the business would not be organized. Teel decided to sell the car. Teel tried to locate Hubbard, apparently by phone calls. A week or two after June 4 an employee of Teel saw the automobile at a bar in Columbia. He reported to Teel who went to the bar.

At this meeting Teel and Hubbard agreed upon a price for the automobile. At that price T.A.G., would make a profit, although Teel couldn’t say how much. Teel related what was said at that meeting in a variety of ways. Teel, on October 9, 1974, gave a statement to a representative of the plaintiff. On October 22, 1974, a second statement was given. These statements, by agreement, were admitted as substantive evidence. Concerning the meeting in the statement of October 9th, Teel said: “[H]e came back to Columbia approximately June the 10th or 11th and I was to pick up the car; . . . and he says I’ll be back in three days and pay you for it and then we started looking for him right after that . .” The next question and answer were: “Q: In other words you discussed settlement, not settlement but sale of the vehicle to him at that time, is that right?"' A: “That’s right.” Teel later agreed with the representative’s statement that as far as Teel was concerned after June 10th, Hubbard was using the car without permission.

In the statement of October 22nd the following references were made: “[H]e just happened to be here and I found him. .

I was looking for the car prior to that without any results and I happened to be going by the Columbia Inn and I saw this car so I walked in on him.” The following questions and answers were:

“Q: Ok. Now what was the extent of the discussion at this time? A: He said I’m going to buy your car and I’m going to go get the money and I’ll be back in about three days. Q: Did he say where he was going to go? A: No he didn’t. He said he had a job down south and he never did say where. . . . Q: Ok and then after June the 10th then you had an understanding that he was to pay — bring the car back — or come back in three days then? A: That’s right. Q: And pay you the money for the car. And after that period of time he would have no reason to believe that he had implied permission to use the car. A: That’s exactly right.”

At the trial, when first asked what transpired concerning the car his answer was: “He told me that he would buy the car.” After questions relating to a time limit he said, “Mr. Hubbard said he would buy the car and he had to go down south and get the money and I told him that I wanted either the money or the car in three days.” Teel subsequently stated several times that he gave Hubbard three days. Later, “I told him to have the money or the car back here in three or four days . . . three days.”

When he had not heard from Hubbard by about June 25, Teel, although he did not believe the automobile to be in Boone County, contacted a deputy sheriff of that county. This visit was to no avail as he told the deputy he didn’t want a warrant but just wanted his car picked up. Later, Teel called a friend in Rockport who was a highway patrolman. He asked the friend to see if the automobile was at Hubbard’s mother’s as she lived in that area. This call was of a personal rather than an official nature. The accident in question occurred on July 5 in Springfield.

Teel had engaged in the liability insurance business for twenty-three years. He was familiar with the permissive user omnibus clause. About July 14th defendant Hunt called Teel and they discussed insurance coverage on the automobile Hubbard was driving. Teel said nothing concerning the dealings he had with Hubbard in reference to that automobile.

Concerning plaintiff’s point of the insufficiency of the evidence, there is no question but what Hubbard was granted indefinite permission to make unrestricted use of the automobile. The decisive question is whether or not the evidence is conclusive that such permission was terminated. The answer hinges upon a determination of what is necessary to effectively terminate such permission. The court has been cited to no Missouri case expressly dealing with the subject. Independent research has developed but little authority.

In determining the question of permissive use relative to an omnibus clause, the courts to one degree or another follow one of three rules. They are the initial permission rule, the conversion rule, and the minor deviation rule. McKee v. Travelers Insurance Company, 315 S.W.2d 852 (Mo.App.1958); Annot. 5 A.L.R.2d 600. In those cases which have expressly considered the choice, the courts of Missouri have followed the minor deviation rule. Speidel v. Kellum, 340 S.W.2d 200 (Mo.App.1960); Farmers Mutual Automobile Insurance Co. v. Noel, 211 F.Supp. 216 (W.D.Mo.1962).

Under the minor deviation rule it is said “if the use made by the bailee is not a gross violation of the terms of the bailment, even though it may have amounted to a deviation, protection is still afforded such additional insured.” 6C Appleman, Insurance Law and Practice (Buckley ed.), § 4368, p. 216. Or, stated another way, a material deviation from the scope of permission constitutes a use without permission. McKee v. Travelers Insurance Company, supra. Under this rule coverage has been denied where an employee contrary to instructions was using a vehicle for personal purposes, McKee v. Travelers, supra; where an employee was returning his employer’s automobile and for personal reasons was two and one half miles off the route, Speidel v. Kellum, supra; where at 9:30 a. m. initial permission was granted to use an automobile in town for one and a half hours and the accident occurred at 7:00 p. m. out of town, Savage v. American Mutual Liability Ins. Co., 158 Me. 259, 182 A.2d 669 (1962); and where permission was granted to use an automobile for 15 or 20 minutes during the noon hour and an accident occurred ten hours later, Wilson v. Hartford Accident and Indemnity Co., 272 N.C. 183, 158 S.E.2d 1 (1967).

But, such cases dealing with a deviation from a limited scope of permission are not decisive here. This case does not involve a deviation from the scope of permission which, when granted, was expressly or impliedly limited. The expressly granted permission in this case was for indefinite, unrestricted or unfettered use. The question here is more kin to the determination of what was the scope of implied consent.

While . no Missouri. ease has expressly defined what is necessary to terminate such unrestricted permission, principles have been enunciated which are applicable. In Hauser v. Hill, 510 S.W.2d 765 (Mo.App.1974) the question was whether or not an employee had implied permission to use his employer’s vehicle to go home to eat lunch. In upholding a determination that he did, the court said: “[CJoverage should not be defeated where the driver has a reasonable basis to believe he is operating the vehicle within the scope of the permission, express or implied, given to him by the owner.” Hauser v. Hill, supra, 510 S.W.2d at 768. In United States Fidelity & G. Co. v. Safeco Ins. Co. of Am., 522 S.W.2d 809 (Mo. banc 1975) a daughter who had been granted unfettered use of her mother’s automobile permitted a friend to drive the automobile. The court considered whether or not the friend was using the car with the permission of the mother within the meaning of the omnibus clause under policy. When the daughter started to drive her mother instructed her not to let others drive. But, the court held that in spite of such admonition from the circumstances surrounding the unfettered use the daughter had implied permission to let her friend drive. In speaking of the mother’s contrary instructions the court said: “If there are to be restrictions, to be effective they must be more than vagaries, which is all Mrs. Kloep-per imposed, at best. The restrictions must be explicit.” United States Fidelity & G. Co. v. Safeco Ins. Co. of Am., supra, 522 S.W.2d at 814. Also to be noted as indicative of the necessity for unequivocal language to prevent coverage from being extended under an omnibus clause is Weathers v. Royal Indem. Co., 577 S.W.2d 623, 627 (Mo. banc 1979). In that case the Hertz rental agreement which granted unfettered use of the insured automobile except for such purposes as carrying for hire, towing or in a race, provided the “[v]ehicle shall NOT be operated by any person except Customer” and certain others not applicable. The customer let a friend drive and the friend was .nevertheless found to be insured under the omnibus clause. In so holding, the court observed the only reference to the insurance coverage being void was in regard to use in Mexico.

Other principles of insurance law are applicable. When express permission is relied upon to establish omnibus coverage, that permission must be “of an affirmative character, directly and distinctly stated, clear and outspoken.” Bourne v. Manley, 435 S.W.2d 420, 426 (Mo.App.1968). When such express permission is terminated, that termination must be unequivocal. It is firmly established that the omnibus clause should be construed, perhaps a better word is applied, to broaden coverage, Weathers v. Royal Indem. Co., supra, and applying that maxim, termination of unfettered use should be clear and definite.

A standard for the termination of express unfettered use cannot be expressed in the abstract. As demonstrated by the cases cited, language and conduct considered effective under some circumstances may not be effective under different conditions. The standard must take into consideration the context in which the termination is expressed. Since the purposes of the omnibus clause include the protection of the public and one using the vehicle of another, 12 Couch on Insurance 2d 45:293, pp. 305-307, it is logical that a standard should be premised upon the reasonable belief of the user. While a summarization by its nature is subject to exceptions and modifications, it seems appropriate that the indefinite, unfettered use of a vehicle created by express permission must be terminated by such language and conduct that a reasonable person, in the same or similar circumstances as the permittee, should clearly understand the permissive use had ended.

While such a standard has not always been clearly expressed, it has been applied. In Standard Accident Insurance Company v. Gore, 99 N.H. 277, 109 A.2d 566 (1954) a mother’s admonition to her son not to use her automobile as a taxi was not an effective termination. In so holding the court said: “Whether it was revoked by the owner turned upon the reasonable meaning of what she said, rather than some interpretation which her son may have given it in his testimony.” Standard Accident Insurance Company v. Gore, supra, 109 A.2d at 570. Liberty Mutual Insurance Company v. Behringer, 419 S.W.2d 651 (Tex.Civ.App.1967) demonstrated the importance of the circumstances. In that case, the owner’s statement to her boy friend (whom she married in a few weeks) that he was not taking a boy for a ride was found not to be a termination and the court said: “Under such circumstances the trier of fact had a right to take all circumstances into consideration, and conclude that if the use of the car by Aiken was not with Miss Pepper’s tacit or implied consent, she could have found some way to prevent its use.” Liberty Mutual Insurance Company v. Behringer, supra, 419 S.W.2d at 653. For a case submitting to the jury the question of whether or not a son could reasonably believe he could disregard his father’s admonition see State Farm Mutual Automobile Insurance Co. v. Williamson, 331 F.2d 517 (9th Cir. 1964). Also Randig v. O’Hara, 123 Pa.Super. 251, 187 A. 83 (1936) and Christiansen v. Schenkenberg, 204 Wis. 323, 236 N.W. 109 (1931).

Turning to the facts of this case, the question of termination primarily turns upon the testimony of Teel concerning what transpired at his meeting with Hubbard. The plaintiff adroitly argues that since the burden of proving coverage was on the defendants (which proposition is not decided) the defendants are bound by the only evidence on that issue, the testimony of Teel. The plaintiff then asserts that testimony conclusively fails to make a submissi-ble case for the defendants. This does not follow. The testimony of Teel does without equivocation establish that Hubbard had been granted the unfettered use of the automobile. The evidence concerning revocation of that permission is not so conclusive. The statements of Teel on that subject were conflicting. In Teel’s October statements the reference to a time limit was Hubbard’s self-imposed expectation concerning when he would get the money. These statements are to be measured in the light of all the circumstances such as: Hubbard had for several weeks without compensation tried to assist Teel in a venture that had failed; Teel’s desire to sell the car; and Teel permitting Hubbard to continue with the unfettered use of the automobile, knowing it was going to be used as a personal car, with no idea of where Hubbard was going to get the money. The evidence would permit the conclusion the overriding desire of Teel was to sell the automobile and the conversation was not a termination by such language and conduct that a reasonable person in the position of Hubbard clearly understood his permissive use was terminated in three days.

Plaintiff’s next point concerns a motion to produce filed by defendant Hunt the morning of, but prior to, the trial commencing. Some months before this defendant had requested copies of statements given by officers of T.A.G. to the plaintiff concerning matters raised in the petition. Plaintiff by letter declined, stating its reasons. The motion in question sought such a statement given by Teel. It further alleged that Hunt’s attorney two days before trial talked with Teel who said he could not remember any specifics but his memory was recorded in a statement given the plaintiff. Counsel for plaintiff objected to the motion, including an objection that the motion was untimely filed. Nevertheless, the court proceeded to hear counsel upon the merits of the motion and ordered production.

. Plaintiff seeks reversal because of the untimeliness of the motion. V.A.M.R. 44.-01(d) provides for service of a written motion and notice of hearing five days before the time specified for the hearing “unless a different period is fixed by law or court rule or by order of the court”. V.A.M.R. 55.30(a) provides for the establishment of regular times for the hearing of motions and specifically provides the court “at any time or place and on such notice, if any, as it considers reasonable may make orders for the advancement, conduct and hearing of motions.” (Emphasis added) The motion alleges the movant learned of the importance of the statement two days before it was filed and heard. The action of the court could well be considered as an order shortening the time for hearing, which was an order within its discretion. Green v. Wyrick, 428 F.Supp. 732 (W.D.Mo.1976); LaChance v. LaChanee, 439 S.W.2d 553 (Mo.App.1969). In all events the burden of showing the error of the trial court, if indeed it was an error, resulted in prejudice requiring reversal is upon the plaintiff. Siedler v. Tamar Realty Company, 491 S.W.2d 566 (Mo.App.1973). No prejudice has been demonstrated.

The plaintiff next complains that the production of the Teel statement violated the “insured-insurer privilege”, citing State ex rel Cain v. Barker, 540 S.W.2d 50 (Mo. banc 1976). That case dealt with “a new privilege in Missouri law (insured-insurer)”, State ex rel. Cain v. Barker, supra, 540 S.W.2d at 59. But, that privilege as developed applied where the insurer was regarded as an intermediary to transmit information for the defense of a client (the insured) to his lawyer (although employed by the insurer). That relationship does not obtain in this case. The information did not pertain to the defense of Teel or T.A.G. Paraphrasing a phrase from Annot. 22 A.L.R.2d 659 (1952), quoted in Cain at p. 54: The statement of Teel was “[not] concerning an event which may be made the basis of a claim against him covered by the policy” and was “[not] intended for the information or assistance of the attorney in so defending him.” ([not] added). In speaking of the situation it has been said: “A confidential statement made by the insured to the attorney, or to the insurer for the use of the attorney, would thus be privileged if sought to be introduced at the trial of the injured person’s action against the insured, but not in a controversy between the insured, or one claiming under him, and the company itself over the company’s liability under the policy.” McCormick on Evidence 2nd Ed. Handbook pp. 190-191.

Plaintiff’s next point is that the trial court erred in not permitting it to show to the jury that Hubbard was a defendant and he defaulted. This point is premised upon the proposition that such default by implication gives rise to an admission that he had no coverage. It is then asserted that since the other defendants, allegedly injured parties, have no greater rights than Hubbard, citing cases such as Drennen v. Wren, 416 S.W.2d 229 (Mo.App.1967), this implied admission should have been permitted in evidence against them.

This does not follow even if Hubbard’s failure to plead constitutes an admission by pleading. “The general rule is that the admissions of a defendant are not admissible against his codefendants unless they consent thereto, adopt the statements as their own, or, as hereinafter noted, there is privity between the defendant making the admission and the codefendants.” 29 Am. Jur.2d Evidence, § 699, p. 756. In the sense that if Hubbard could not establish coverage the other defendants cannot, , the other defendants have no greater rights as stated in Drennen v. Wren, supra. But, this does not mean the other defendants, at least in regard to circumstances up to the time of the accident, are now claiming through him. The rights of the parties are fixed at the time of the accident. V.A.M.S. § 379.195; Hanover Insurance Company v. Abchal, 375 S.W.2d 605 (Mo.App.1964); Helmkamp v. American Family Mutual Insurance Co., 407 S.W.2d 559 (Mo.App.1966). There was not such a privity between Hubbard and the other defendants to cause his admissions by pleading or lack thereof to be placed in evidence against them.

Of course, the conduct of the parties after an accident may provide some inference to the relationship of the parties before the accident. The vehicle owner’s failure to check on or complain of the driver’s wrongdoing was so considered in Winterton v. Van Zandt, 351 S.W.2d 696 (Mo.1961). But, for an act or failure to act to give rise to such an inference, “ ‘such inference must be drawn from substantial and probative evidence which is sufficient to lead to a conclusion as to a certain result which, according to the common experience of mankind, follows naturally and usually from the given state of facts and which at the same time logically and according to the common experience of mankind excludes a different result or conclusion.’ ” Straughan v. Asher, 372 S.W.2d 489, 493 (Mo.App.1963). In this case Hubbard was shown to be without assets. His default does not exclude the conclusion that default resulted from a lack of funds and interest, coupled with a well-founded assumption that the allegedly injured parties would carry the burden. In the circumstances of this case the trial court did not err in excluding such offer.

The case was submitted to the jury upon Instruction No. 2 (submitted by plaintiff) providing for a verdict for the plaintiff if the jury found that on June 10 Teel told Hubbard to return the automobile or to pay for it within three days. The defendants offered an instruction providing for a verdict for the defendants if Teel’s permission was not withdrawn or the withdrawal of the permission was not communicated to Hubbard in a manner which should lead a reasonable man, under the circumstances, to believe he no longer had permission. This was refused. The plaintiff seeks reversal because the court did not give an instruction providing for a verdict for the defendants.

The plaintiff cites Page XLIX of the M.A.I. volume which states: “The failure to instruct on every issue has been error, and it continues to be error." It is also asserted that the omission is fatal because the defendants had the burden of proof. These contentions overlook the in-court agreement of the parties before the case was submitted. In referring to Instruction No. 2 it was agreed “that is the only fact issue, as submitted in that instruction” and on that issue the plaintiff assumed the burden of proof. Under this stipulation no error was made in instructing the jury.

Plaintiff’s next point is that the trial court erred in giving Instruction No. 1, which was M.A.I. No. 2.01. This instruction was read to the jury as the trial opened. Plaintiff’s complaint is that this instruction should have been modified to require the defendants to proceed first. This contention is without merit for two reasons. First, the plaintiff made no objection to proceeding first. “And, having done so, they cannot very well insist that, in reality, they assumed a burden which was not theirs.” Pacific Portland Cement Co. v. Food Mach. & Chem. Corp., 178 F.2d 541, 547 (9th Cir. 1949). Second, at the time the trial opened and this instruction was given, under the pleadings the plaintiff sought to avoid coverage not only upon the basis of lack of permission, but also upon the basis of "the breach of conditions of the policy: Hubbard’s failure to give notice of the accident and his failure to cooperate with the plaintiff. On these issues the plaintiff did bear the burden of proof. Mission Insurance Company v. Ward, supra, 487 S.W.2d 449; McNeal v. Manchester Ins. & Indem. Co., supra, 540 S.W.2d 113; Michigan Mutual Liability Co. v. Stallings, supra, 523 S.W.2d 539. Under these circumstances it was not error for the plaintiff to proceed first. Compare Charles H. Fuller Co. v. St. Louis Wholesale Drug Co., 219 Mo.App. 519, 282 S.W. 535 (1926).

The trial court, as requested in plaintiff’s petition, appointed an attorney as guardian ad litem for defendant Anderson, who was a minor. The guardian ad litem appeared for the minor throughout the trial. The trial court allowed the guardian ad litem a fee of $750.00, taxed as part of the costs against the plaintiff. The plaintiff does not question the basic power of the court to make the award, but contends it was error because the minor defendant Anderson had an estate, at least a claim for personal injuries. It was established in the record that by the time of trial defendant Anderson had- disappeared. The guardian ad litem disavowed representing her on such a claim and doubted if such a claim would be filed. Under these circumstances, there is no necessity for determining whether or not the estate of the minor barred the trial court from allowing that fee. The plaintiff also urges that such allowance was improper because there was no evidence concerning the value of the guardian’s services. The guardian did state the services rendered and time expended. The trial court was competent to determine the value of such services without opinion evidence. Beckman v. Beckman, 545 S.W.2d 300 (Mo.App.1976).

The judgment is affirmed.

All concur.

      . The omnibus clause provided coverage for “(2) any other person while using such automobile and any other person or organization legally responsible for its use, provided the actual use of such automobile is by the named insured or with his permission.” For cases dealing with the distinction between use with permission and driving with permission see Weathers v. Royal Indemn. Co., 577 S.W.2d 623 (Mo. banc 1979); Aetna Life & Cas. Co. v. Western F. Ins. Co., 570 S.W.2d 691 (Mo.App.1978); Farm Bureau Mut. Ins. Co. v. Brodie, 558 S.W.2d 751 (Mo.App.1977).

      . So. held where the issue was renewal after expiration, M. F. A. Mut. Ins. Co. v. Quinn, 259 S.W.2d 854 (Mo.App.1953); where the issue was implied permission, Hanover Insurance Company v. Abchal, 375 S.W.2d 605 (Mo.App.1964); where the issue was whether the vehicle was a “non-owned automobile” or a “temporary substitute automobile”, State Farm Mut. Auto. Ins. Co. v. Johnson, 586 S.W.2d 47 (Mo.App.1979). Also see Michigan Mutual Liability Co. v. Stallings, 523 S.W.2d 539 (Mo.App.1975).

      .To be distinguished are those cases in which a vehicle subsequent to permissive use was returned and retaken without further permission. Bekaert v. State Farm Mutual Automobile Ins. Co., 230 F.2d 127 (8th Cir. 1956); Travelers Insurance Company v. Kinney, 238 F.Supp. 652 (E.D.Mo.1964); Wells v. Hartford Accident and Indemnity Company, 459 S.W.2d 253 (Mo. banc 1970).

      . The failure to give a burden of proof instruc- • tion, when that burden was upon the prevailing party in a declaratory judgment action to determine coverage, was held to be reversible error. State Farm Mut. Auto. Ins. Co. v. Johnson, supra, n. 2.

      . Hauser v. Hill, 510 S.W.2d 765 (Mo.App.1974).

      . For the distinction concerning an allegation of error based on privilege as distinguished from work product see Halford v. Yandell, 558 S.W.2d 400 (Mo.App.1977).

      . For the scope of the privilege when an insurer employs air attorney to represent the company see State ex rel. Great Am. Ins. Co. v. Smith, 574 S.W.2d 379 (Mo. banc 1978) overruling State ex rel. Great Am. Ins. Co. v. Smith, 563 S.W.2d 62 (Mo. banc 1978).

      . “Until the issue of the obligation to defend is finally resolved the necessary attorney-client relationship does not exist . . . .” Kansas City Fire & Marine Ins. v. Hartford Ins., 43 A.D.2d 888, 351 N.Y.S.2d 767, 768 (1974).

      . If the document contained privileged information, it could be presented to the court and the privileged information kept confidential. Kansas City Fire & Marine Ins. v. Hartford Ins., supra, no. 8.

      . Concerning the basic power of the court to make such an award see St. Paul Insurance Company v. Carlyle, 428 S.W.2d 753 (Mo.App.1968).


author: FONES, Justice. HENRY, Justice, FONES, Justice.

text:
    Sam DELK, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Oct. 9, 1979.
    Petition to Rehear Denied Dec. 3, 1979.

      Jerry C. Colley, Columbia, Philip M. Car-den, Nashville, for petitioner.
    William M. Leech, Jr., Atty. Gen., Wil-laim 0. Kelly, Asst. Atty. Gen., Nashville, Elmer Davies, Dist. Atty. Gen., Franklin, Douglas T. Bates, III, Asst. Dist. Atty. Gen., Centerville, for respondent.
   OPINION

FONES, Justice.

Defendant was convicted, on circumstantial evidence, of murder in the second degree and sentenced to fifty years in the penitentiary. The Court of Criminal Appeals affirmed, and we granted the writ of certiorari.

Harry Gibson, owner of Gibson’s Wayside Market in Centerville, was killed by one of two shots fired from a .32-caliber weapon on November 12, 1975. He was alive and apparently alone when Sidney Pigg, a 13-year-old customer, left his store at approximately 5:54 p. m. His body was found just inside the front door, a few minutes prior to the placing of a call to the police dispatcher, which call was received at 6:09 p. m. When the body was discovered the telephone was off the hook, and the adjacent cash register was open. The investigators found over six hundred dollars in cash in the register and five hundred and one dollars in cash on the victim.

I.

The State’s theory was that defendant entered the store after Pigg left and shot Gibson. Motivation was said to arise from the fact that months prior to the murder, defendant had damaged a door during a scuffle at Harry Gibson’s Tavern, located three hundred and fifty-feet south on Columbia Avenue from the market, and defendant was required to and did pay for the damage, but that he probably owed Gibson for beer or cigarettes, evidenced by the fact that he was seen on several occasions giving money to friends in front of the market, who entered the market, purchased cigarettes and delivered them to defendant. The murder weapon was not found, no fingerprints were introduced and no witness testified that any shots were heard. The only additional evidence of any significance relied upon by the State was the discovery, on the morning of November 13, 1975, of blank checks, bad checks, receipts, recipes and miscellaneous scraps of note paper, some of which were facially identified with Gibson’s Wayside Market but most of the papers were totally unidentifiable and the record leaves them to speak for themselves. The papers were found by Rose Claiborne near her mailbox just off the roadway in front of her residence. She lived on Highway 100 just across the Duck River Bridge between Centerville and Dickson, on the right-hand side of the road for traffic proceeding toward Dickson from Centerville. There was testimony that Dan Delk, defendant’s twin brother, and defendant were alone together on one or more occasions during the evening of the murder and that Dan Delk had left Centerville for Dickson driving his vehicle, with three females as passengers. Two of the three passengers testified that at or near the Claiborne residence his right wheel or wheels left the pavement for a short distance, but that he regained control, returned to the pavement and continued on without stopping. They disagreed as to the source of the distraction that caused him to “kinda slip off the road.” One of the witnesses testified that it was cold and that all of the windows were closed, and that the vent window on the driver’s side was taped closed. Nevertheless, it was the State’s theory that defendant had taken the worthless papers from the market, gave them to Dan Delk when he had the opportunity during the evening and Dan Delk threw them out the window when he left the pavement momentarily.

Defendant' did not testify and did not adduce any proof.. He made a voluntary oral statement to the Sheriff on the afternoon of November 13, 1975, after Miranda warnings had been given and he had waived his rights.

The Sheriff’s testimony revealed that defendant told him that he had left his home on Wells Street, where he resided with his parents, walked down the left side of Columbia Avenue toward Gibson’s Market and saw Sidney Pigg on the east side of the street, a short distance south of the market. He was asked, “What’s happening?’’, responded, “You got it,” continued on, crossed Columbia Avenue and entered the market. Defendant had told the Sheriff that Gibson was talking on the telephone, that he got a package of cigarettes and one or two boxes of matches, gave Gibson a five dollar bill, that Gibson reached over to the cash register and gave him four dollars, forty-eight cents change and never put the telephone down; that defendant left the store, having been inside between thirty- and forty-five seconds, and denied killing Gibson. According to the Sheriff, defendant said that he then walked down the east side of Columbia Avenue to Gibson’s Tavern, and his arrival there was confirmed by other State witnesses at an approximate time not inconsistent with the theories of either defendant or the State.

The State also brought out on the direct examination of the Sheriff that defendant had denied that there was any animosity or bad feelings between Gibson and himself and denied ever owning a handgun.

Defendant’s theory was that Gibson was alive and talking on the telephone when he left the market and that someone entered thereafter, committed the foul deed and escaped unnoticed, probably into the brush and woods behind the market through the side yard between the market and the Small house.

Mr. Small lived in the first house south of the market with only twenty feet of open space between the buildings. Louise Chav-ers and her husband lived in the second house south of the market, with a side yard approximately thirty-nine-feet wide between the Chavers and the Small houses. Mr. Small boarded with the Chavers, and Mr. Chavers owned the Small house. Defendant told the Sheriff that as he walked away from the store he looked into the side yard between the Small and Chavers houses, that he saw Louise Chavers walk from her rear door to a side door in the Small house and call Mr. Small to “come eat.” He said that about half-way across the side yard, Mrs. Chavers looked straight at him and he looked straight at her.

Louise Chavers testified that she was in the kitchen, the news came on, she looked at the clock and it was straight up and down six o’clock; that she went out the rear door that opened into a garage, and across the side yard to Mr. Small’s door, called him; and when he didn’t answer, she opened the door and again said “Your supper is ready,” whereupon he responded. She said that as she left the corner of her garage, she looked toward Columbia Avenue and at an angle to two old abandoned trucks belonging to her husband which had been parked in front of the Small house for more than two years, and indicated that she usually did that when it was dark because she was scared that someone might be hiding out in or around the trucks. However, on that occasion she testified that she saw no one and that she did not see defendant walking along the street. After calling Mr. Small, Mrs. Chavers returned to her house by the same route, went to the stove and turned off something she was cooking and heard a car horn blow. ' She went to the front door and saw Floyd Stone sitting in his vehicle in front of the Walker house, which was located diagonally across the street and to the south of the AME Church. Mrs. Chavers later reenacted her activities between six o’clock and her hearing the horn blown, and the Sheriff timed this interval at one minute, seventeen seconds.

Floyd Stone picked up “Goon” Gilbert at the Walkers to take him to a clinic. He had a toothache and his jaw was swollen. Leaving from the Walkers, they circled behind the AME Church, and as they were making the ninety-degree left turn into Columbia Avenue to go north, they were looking almost directly into the front glass doors of the market when Gilbert saw Gibson’s body on the floor. A later reenactment of the interval from the blowing of the horn for Gilbert to exit the Walker house until they entered the store was timed at one minute fifty seconds. Floyd Stone estimated he placed the call to the police three to five minutes after they entered the store.

If Louise Chavers starting time was correct and all of the witnesses involved in the reenactments, memories and actions were correctly recalled and reenacted, Stone and Gilbert entered the store at 6:03:17 p. m., and did not call the police until five minutes and forty-three seconds later.

Burford Hornbeak said he left the market at 5:50 p. m., and looked at his watch which kept good time. Sidney Pigg testified at the trial that he left five minutes later, but admitted that his estimate, made at the preliminary hearing ten days after the murder, had been three to five minutes. Using the median of four minutes, defendant would have entered the store at 5:55:20 p. m. Time reenactments revealed that Pigg required thirty-five seconds to reach the point of conversation with defendant and it was estimated that defendant would have required forty-five seconds to cross Columbia Avenue and enter the store. This analysis of the evidence reveals, that the murder occurred within the seven minute, fifty-seven-second-interval between 5:55:20 and 6:03:17 p. m. If defendant was in the market only forty-five seconds and did not kill Gibson, seven minutes and twelve seconds remained for the killer to accomplish the act and escape before discovery of the body.

II.

The last of twenty-seven witnesses called by the State was Ulysses Gibson, the victim’s brother. He testified that Jones Delk, the defendant’s father, came into the market a few months prior to the murder, with a sack full of bullets, and he was asked: (1) what did Jones Delk do with the bullets and (2) what color were the bullets. Defendant objected and during a colloquy between the Court and counsel, the prosecuting attorney said, “Well I can tie it in.” Thereupon, upon defendant’s motion the jury was excused. While the jury was out, Ulysses Gibson testified that Jones Delk “had a sack with a whole box of shells in it, bullets and he showed them to me and my brother .”, and that Delk said, “I guess I’ll give old Sam two or three of these.” The most positive answer elicited from Ulysses Gibson when several attempts were made to ascertain how long before the murder that Jones Delk showed the bullets was, “It wasn’t too awfully long.” The trial judge eventually sustained the objection, and defense counsel asked that he instruct the jury to disregard the last question and answer they had heard, but when the Court announced he couldn’t remember the last question and answer, the request was withdrawn.

The Court of Criminal Appeals held that there was no basis for that evidence and when the prosecuting attorney said in the presence of the jury that he could tie it in, he came “perilously close to creating a situation where the jury might be improperly influenced.” But the intermediate Court concluded it was harmless error.

Also cited as errors on the basis of alleged misconduct by the prosecuting attorney were two instances in the course of the trial when he asked, “Have you ever seen Sam Delk with a handgun in his possession?” That question was first asked of Wright Fowlkes, objected to by defense counsel and sustained as to form, whereupon the prosecuting attorney asked that the jury be excused. However, before the objection was made, the witness had already answered with an unequivocal, “No.” With the jury out the Court explained that the objection was sustained, “On the basis of the open-ended import of the word ‘ever,’ ” and if rephrased to a specific recent time the objection might be cured. The prosecuting attorney said that a later witness would lay the foundation and asked that Fowlkes remain subject to recall. He was not recalled.

Eight witnesses later Wayne Dansby was asked the same question, defense counsel objected, and the prosecuting attorney said, “I can show it now.” The jury was excused on motion of defense counsel. The prosecuting attorney argued that since the Sheriff had testified that defendant said he never- owned a handgun, testimony to the contrary was admissible. Dansby was questioned further outside the presence of the jury and said he had “seen” defendant with a handgun twice. When asked how long before the murder, he said he couldn’t remember but estimated eight to nine months. The prosecuting attorney then withdrew his efforts to pursue that line of questioning.

Defendant complains, in effect, that the Jones Delk bullets episode and the handgun possession episode involve the calculated use of questions for the purpose of planting in the minds of the jury the suggestion of the existence of damaging evidence against the defendant, and that except for some mysterious legal technicality would have been more fully adduced, when the prosecuting attorney knew, or should have known, that the evidence proffered would not meet the criterion for admissibility. As all trial lawyers know, such tactics are, strictly speaking, improper but are rather widely used and generally condoned by the courts, with varying degrees of frowning. Prosecuting attorneys should be on notice that they are taking a calculated risk that may result in reversal, if the use of such tactics improperly influence the jury to the prejudice of the defendant.

III.

All of the testimony about the papers found by Rose Claiborne was objected to by defendant, and its admission is assigned as error. Defendant insists that there is no evidence that anything was taken from the market by defendant or anyone else, at the time of the murder or that defendant passed anything to his brother to be disposed of. Further, he insists there is no explanation of how Dan Delk managed to throw papers out of his vehicle when the testimony of two of his passengers negated that possibility, nor was there any rational explanation of how the papers could have landed on the right side of the road if Dan Delk threw them out the window on the driver’s side.

The testimony of Rose Claiborne that she found the papers on the morning of November 13, 1975, and that they were not there at 11:30 p. m. on November 12, was relevant. Some of the papers belonged to Harry Gibson, individually, and some were clearly associated with the operation of Gibson’s Wayside Market. The time of their appearance on Rose Claiborne’s property gave rise to an inference that they may have been taken by the killer of Harry Gibson. Likewise, it was relevant to show that defendant had the opportunity to hand any papers he may have taken from the market to his brother, Dan Delk, and .that Dan Delk traversed the road past Rose Claiborne’s house during the time frame of their appearance at that place. It follows that the State was entitled to ask the passengers in Dan Delk’s vehicle what occurred when they passed Rose Claiborne’s house. The fact that the State failed to elicit from the two passengers testimony that Dan Delk did in fact throw papers from the car, does not render their testimony inadmissible, but merely goes to the probative value of the State’s theory of defendant’s complicity in the episode, as is the case with all of the alleged evidentiary errors involving the papers found at Rose Claiborne’s.

We agree with defendant that there is no evidence in this record that defendant personally drove or rode past Rose Claiborne’s house that evening, as indicated in the Court of Criminal Appeals’ opinion.

IV.

During rebuttal argument the prosecuting attorney said, in part, the following:

“Mr. Colley says about these checks I don’t have to explain them, I don’t have to explain them, well he doesn’t have to explain them but he had available to him and I don’t know whether he is in the courtroom, yes he is, he had available to him all week Dan Delk, Dan Delk was here all week and could have been called to explain those checks, why wasn’t he called?
MR. COLLEY: Note my exception to this line of argument.”

The prosecuting attorney then said that he had a case in point, the Court asked to see the case and a law book was apparently handed to the Court, but the record fails to show any ruling made by the Court and the prosecuting attorney resumed his argument.

Defendant insists that Article I, § 9 of the Tennessee Constitution is broader than the fifth amendment to the United States Constitution and that the remarks quoted infringed upon defendant’s right to remain silent and to decline to adduce any witnesses or proof whatever, including testimony of any witness or witnesses who might fall within the purview of the rule that failure to call an available witness, who knows material facts and is controlled by or would be naturally favorable to defendant, gives rise to an inference that the uncalled witness’ testimony would not sustain the defendant’s contentions.

No authority has been cited in support of that proposition other than the language of the Tennessee Constitution. The prohibition in our Constitution is that an accused shall not be compelled to give evidence against himself, whereas the language in the federal constitution is that the accused shall not be compelled to be a witness against himself. We do not agree that the Tennessee prohibition against self-incrimination is broader or different in any application thereof because of the use' of the word “evidence” instead of the word “witness.”

However, the comment on defendant’s failure to produce Dan Delk as a witness was improper, in the absence of evidence laying a proper foundation for such comment.

There was no basis in the proof adduced at the trial for the prosecutor’s statement to the jury that Dan Delk was in the courtroom or had been available all week to testify. What the prosecuting attorney may have known of his own personal knowledge or observed in the courtroom cannot be considered part of the evidence in the case. As a predicate for comment on a missing witness, the evidence must show that the witness had knowledge of material facts, that a relationship exists between the witness and the party that would naturally incline the witness to favor the party and that the missing witness was available to the process of the Court for the trial. Cf. City of Lawrenceburg v. Maryland Cas. Co., 16 Tenn.App. 238, 64 S.W.2d 69 (1933).

V.

While we agree with the trial judge and the Court of Criminal Appeals that defendant’s motion for a directed verdict was not well taken and that the State’s proof was sufficient to present a jury issue as to defendant’s guilt or innocence, we do not hesitate to observe that the margin by which the State prevailed was small. Since the case may be retried, we do not think it appropriate to undertake in detail the analysis of the proof that led us to that conclusion. Suffice it to say that we do not agree with the State’s position that defendant’s statement about what he saw and heard Louise Chavers do was damaging to his contention. In fact, his statement made to the Sheriff at a time when he had no knowledge of what, if anything, Sidney Pigg or Louise Chavers had said, reconciles remarkably with their testimony.

In the context of our evaluation of the proof in this case, we think the issues discussed in sections II and IV, cumulatively, resulted in prejudicially influencing the jury against defendant and requires that the conviction be reversed and the cause remanded for a new trial.

VI.

The dissent filed in this case, subsequent to consideration of the first five sections of this opinion by all members of the Court, requires a response.

A further analysis of the time of death and the time of defendant’s presence in Gibson’s Market, is in order. On the basis of the analysis narrated in section one, it was possible that seven minutes and twelve seconds was available for some third person to commit the murder, if defendant did not. We thought it self-evident that the jury could have found that less than three minutes or perhaps even only two minutes remained between the time defendant left the store and the time the body was seen by Gilbert, when the Stone car stopped in the church driveway before entering Columbia Avenue and further that because of potential eye-witnesses, anyone entering or leaving the front door of the store would have been seen during that interval.

Defendant’s statement to the Sheriff that he heard Louise Chavers’ conversation with Small when only a few feet north of the store would mean that he left the store after 6:00, rather than at 5:55:20. Floyd Stone did not use the telephone in the store to call the police. He went to the Gray house located approximately two hundred ninety-nine feet north of the store, and as he passed the Walker house he took the time to inform them of the discovery of Gibson’s body. The jury could have found that Gilbert and Stone entered the store earlier than 6:03:17 further narrowing the time and opportunity for anyone else to commit the murder.

It is undisputed that the two rear doors of Gibson’s Market were bolted and locked on the inside and were not tampered with, so that the murderer would have had to enter and leave by the front door.

During the interval of time that elapsed between defendant leaving the store and the finding of the body, the following events transpired. Louise Chavers went to her front door, hearing Floyd Stone’s horn blow. The well-lighted front of Gibson’s Market was fully visible to her from that vantage point as her testimony about defendant sending friends into the store to make purchases had made clear. She observed Gilbert and several others outside the Walker house and Floyd Stone sitting in his car parked in front of the Walker house. All of those persons at the Walker house had a clear view of the front of Gibson’s Market, as did Gilbert and Stone as they circled behind the church except for a fleeting moment when the small church building would have blocked their view. Concededly, it is possible that all of those eyes that had the opportunity to see anyone else enter and leave Gibson’s Market during the entire interval that defendant must rely on for his innocence were looking elsewhere, but the probabilities are almost nonexistent that such entry and exit occurred unobserved.

There was evidence from which the jury could have found that defendant did not arrive at Gibson’s Tavern, three hundred and fifty feet from the murder scene until approximately 6:20 p. m.

It was established that a bundle of papers were taken from Gibson’s Market and we think, beyond a reasonable doubt, that the taking occurred at the time of the murder. Among the papers were notations of amounts various persons owed Gibson and bad checks that had been given to Gibson and remained unpaid. The conclusion is inescapable that there was something among those papers that was more valuable to the murderer than the six hundred dollars cash in the open cash drawer. The jury could have found that defendant owed Gibson money for cigarettes, groceries, beer or the door that was damaged in the altercation “with his brother.” The brother could have been Dan Delk, the record does not reveal whether defendant had other brothers.

The failure of defendant to call Dan Delk was significant for several reasons. One of the two women passengers who testified about his activities when his vehicle passed Mrs. Claiborne’s house acknowledge that she had “stayed” with him and, of course, the other one was a friend. The jury was not required to accept their testimony, which was far from convincing and unequivocal, oh its face. Why would a defendant charged with a capital crime fail to put his available brother on the witness stand to state unequivocally that he was given no papers by defendant or anyone else on the night of the murder and that he did not deposit them beside the highway near Mrs. Claiborne’s house? The answer may well be that he did so, or that he knew that defendant owed Gibson money and there was bad blood between them, or both.

There is no question but that the failure of defendant’s brother to testify and the prosecutor’s effective comment on it in rebuttal argument was a hard blow to defendant. However, it is true, as the dissenter observes, that the three errors are normally treated as harmless, certainly each standing alone. But it is also true that the line between harmless and prejudicial error is in direct proportion to the degree of the margin by which the proof exceeds the standard required to convict, beyond a reasonable doubt. The dissenter characterizes this case as proving nothing but presence. The proof of presence and the opportunity to commit the murder, with no eye-witness to the killing, was conclusive and was coupled with a time sequence that would support a finding beyond a reasonable doubt that no one else could have entered the store, committed the crime, and left unobserved.

Reversed and remanded for a new trial.

BROCK, C. J., and COOPER and HARBI-SON, JJ., concur.

HENRY, J., dissents.

HENRY, Justice,

dissenting.

I respectfully dissent.

If mere presence or opportunity will provide sufficient evidence upon which to convict, then this conviction should stand. If it will not, it should be reversed.

I.

Presence of Accused

In view of the fact that this conviction rests solely on presence and is based upon the proposition that Sam Delk could or might have committed the murder, we look to the character of the neighborhood to ascertain whether it could or might have been committed by others.

This murder occurred in Gipson’s Wayside Market in Centerville, the county seat of Hickman County. According to the Tennessee Blue Book, 1977-1978, Centerville had a population of 2,697 persons. Gipson’s Market is located on the east side of Columbia Avenue, a few blocks from the public square.

Examination of the exhibit pictures reveals that it is located in a thickly settled neighborhood, diagonally across the street from two churches. To the south of the market, on the east side of Columbia Avenue, there are six houses in the first block, including a beer joint owned by the deceased, but not including a trailer-parked behind one of the houses. On the other side of the street, within the same block there are three houses and a Methodist church. Behind, and in immediate proximity to the church, on a road circling the church, there are six houses. On a side street or road just north of the market there are four houses, one of which appears to have been vacant. On the north side of the market, on Columbia Avenue before the road forks and within a block, there are four houses. On the opposite side of the road there are five houses and a Nazarene church.

In summary, within one block of the market there are twenty-eight houses, two churches and one trailer. These mundane figures take on significance in the face of a conviction based on the presence of the accused. Had this murder taken place at an isolated country store, the conviction based on the circumstance of presence would be more soundly based. But this murder took place in a busy market and “hanging out” place, located in a populous area within a county seat town, where customers and loafers are coming and going.

A criminal conviction may not be supported by suspicion alone because we are governed by a standard that requires proof beyond a reasonable doubt. United States v. Carter, 173 U.S.App.D.C. 54, 522 F.2d 666 (D.C.Cir.1975). It is well settled that the mere presence of the accused at the scene of a crime does not, standing alone, justify drawing an inference of his participation or guilt. Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (D.C.Cir.1969); Araujo-Lopez v. United States, 405 F.2d 466 (9th Cir. 1969); Newsom v. United States, 335 F.2d 237 (5th Cir. 1964); Glenn v. United States, 271 F.2d 880 (6th Cir. 1959).

This conviction rests wholly on circumstantial evidence. The rule in Tennessee, as approved in Overton v. State, 521 S.W.2d 229, 232 (Tenn.Cr.App.1975), is that:

[T]he evidence must be not only consistent with the guilt of the accused but it must also be inconsistent with his innocence and must exclude every other reasonable theory or hypothesis except that of guilt, and it must establish such a certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that he is the one who committed the crime. 521 S.W.2d at 232 quoting from Pruitt v. State, 3 Tenn.Cr.App. 256, 460 S.W.2d 385, 390 (1970)

See also T.P.I.Crim. 37.06.

As this Court held in State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610 (1971):

In order to convict on circumstantial evidence alone, the facts and circumstances must be so closely interwoven and connected that the finger of guilt is pointed unerringly at the defendant and the defendant alone. (Emphasis supplied). 470 S.W.2d at 613

This casé is pregnant with the possibility that this defendant was an innocent victim and that someone else committed this murder. There was nothing conclusive about the State’s proof; it did not exclude every other reasonable theory or hypothesis except that of guilt. In short, the defendant was not convicted beyond a reasonable doubt.

The fundamental nature of the governing reasonable doubt standard was eloquently articulated by the Supreme Court in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970):

“Due process commands that no man shall lose his liberty unless the Government has borne the burden of . convincing the factfinder of his guilt.” (citation omitted)
******
Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. 397 U.S. at 364, 90 S.Ct. at 1072-1073

The philosophy expressed in Crawford, supra, is pertinent:

“We cannot, in law or in conscience, affirm a judgment, when, after making all due allowance for the superior advantages of a jury, we can yet see that the jury were not warranted upon the facts in finding him guilty.”
Thus, the Court cannot and will not sit idly by and, in effect, commit this defendant to the penitentiary when there remains a reasonable doubt that such judgment might be in error, and if upon a careful reading of the record of the trial court there is any doubt as to the guilt or the innocence of the defendant, such doubt must be weighed in favor of the defendant. 470 S.W.2d at 612-13 quoting from Stuart v. State, 60 Tenn. 178 (1873)

After having read this record en toto, twice, with painstaking care, reading parts of it on numerous occasions, after having prepared a written digest of the proof, and based upon many years of experience at both sides of the counsel table, I am impelled to the conclusion that the evidence presented in this case is insufficient to take this case to the jury and will not support a conviction.

II.

The Standard of Review

While I question the continuing relevance of our standard of appellate review in view of recent developments, I recognize in passing that under that standard, a jury verdict approved by the trial judge in a criminal prosecution thrusts upon the convicted defendant the burden of proving that the evidence preponderates against his guilt, Martin v. State, 542 S.W.2d 638 (Tenn.Cr.App.1976), and that this rule applies in circumstantial evidence cases, State v. Townsend, 525 S.W.2d 842 (Tenn.1975).

This standard, however, does not relieve the State from proving guilt beyond a reasonable doubt in the first instance.- Moreover, it “presupposes record proof presenting a factual basis for consideration and determination by the jury.” Hughes v. State, 3 Tenn.Cr.App. 602, 465 S.W.2d 892, 896 (1970). Here there was none.

Under any standard of review, this defendant has stood trial and the State’s proof is insufficient.

The full implications of the recent decision of the Supreme Court of the United States in Jackson v. Virginia, - U.S. -, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), must await further development and refinement. In the meantime, it is clear that the teaching of In re Winship, supra, that “[t]he constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt,” Jackson v. Virginia, supra at 2784, has taken on new vitality and added significance. It requires that we take a fresh look at our present standard of review.

The crux of the Court’s holding with respect to appellate review is as follows:

After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be . to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” (Citation omitted) Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, (citation omitted). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as a weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon “jury” discretion only to the extent necessary to guarantee the fundamental protection of due process of law. Jackson v. Virginia, 99 S.Ct. at 2789-90

This does not, in my view, require an abandonment of our established standard of review; but it does demand a meaningful and critical analysis of the record on appeal to insure that the evidence supports a conviction beyond a reasonable doubt. Any lesser standard would not protect against a violation of the Due Process Clause of the Fourteenth Amendment which, under Win-ship and Jackson, invalidates any conviction not based on evidence of guilt beyond a reasonable doubt.

We can, and must, on appellate review, consider “all of the evidence” in a light most favorable to. the State; we cannot, and must not, accord the convicting evidence any presumption. Such would trespass upon the right of appellate review and would strip it of vitality and validity.

Pragmatic considerations demand this approach. Jackson v. Virginia, supra, was directly concerned with the correct standard to be used by federal courts in reviewing state court convictions. After noting that “[a] challenge to a state conviction brought on the ground that the evidence cannot fairly be deemed sufficient to have established guilt beyond a reasonable doubt states a federal constitutional claim,” the Court held that when the conviction is not based on sufficient evidence, “the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Id. at 2791-92.

As pointed out in the concurring opinion, “the Court’s broader standard may well require that the entire transcript of the state trial be read . . . .” Id. at 2799 (Stevens, J., concurring).

As a practical proposition our standard of review must harmonize with the federal standard in habeas corpus cases, lest the result be to “undermine the morale and the esteem of the State Judiciary” by having the decisions of this Court vacated by a single federal trial judge.

In the instant case, we solicit this precise result. It requires little prescience to predict that competent counsel for Sam Delk will seek the remedy of federal habeas corpus in this case wherein his conviction has no evidentiary support.

III.

This entire section and so much of the ensuing section as relates to the failure of Dan Delk to be produced as a witness were written after the remaining portions were tendered to my colleagues as a dissent. Section VI of the main opinion was prepared as a “response.” Because it brings forward new matter, and because of a modification in Section III of the main opinion relating to the discovery of certain business-related papers and documents belonging to Harry Gipson, it is now necessary that I respond.

The majority finds, without evidentiary support in the record, that “beyond a reasonable doubt . . the taking occurred at the time of the murder.” Perhaps so. In an apparent effort to tie their taking to Sam Delk, the majority suggests that the “jury could have found that the defendant owed Gipson money for cigarettes, groceries, beer or the door that was damaged in the altercation.” It could; however, the finding would have been without evidentiary support. The record shows that Sam Delk had paid for the door repairs; there is a vague suggestion that he owed Harry Gipson an undetermined amount of money at an unspecified time. The majority opinion offers no explanation for taking these papers to remove evidence of a small indebtedness, if such there were, and leaving over $1,100.00 in money on the person of Harry Gipson or in the cash register.

The majority opinion, in seeking to place a sinister connotation on the discarded papers, overlooks significant facts.

The State called as its witnesses two passengers in Dan Delk’s car.

First, the State called Sheryl Weaver. On direct examination she gave this testimony:

Q. Now did you see Dan Delk doing anything when he went off the road?
A. Yes, he said he was getting a pack of chewing gum.
Q. And that’s all?
A. Yes, sir.

On. cross-examination she testified that Dan did not stop after the right wheels got off on the right-hand side, that he just pulled back into the road and kept going.

The second witness, Martha Overton, on direct, testified as follows:

Q. Well did you see him doing anything at that time besides driving?
A. No, he was driving, he had a beer can in one hand and he was driving with the other hand.

On cross-examination, the questioning was even more specific:

Q. Did he throw anything out of the car or anything like that?
A. No, he handed the beer can to Sheryl Weaver and the wind was blowing where he had it taped around the little window and anyway he was pushing up against it, as I remember and I told him to quit it if he couldn’t drive to let me drive.

By further testimony she established that it was a cold night and the windows were up in the car.

It was this witness the majority apparently had in mind when it charged that one of these two women passengers was living with Dan Delk. The record shows her to be the wife of a man named Overton. She is identified in the record as Martha Dansby Overton.

The testimony of these two witnesses was conspicuously convincing and unequivocal.

It must be borne in mind that it was the State that called these witnesses to the stand and vouched for their credibility. They stand in this record unimpeached and uncontradicted. The State having certified to their credibility and worthiness of belief cannot now attack their veracity — nor can this Court. It would be grievously unfair to permit a party to have the benefit of his witnesses’ testimony if favorable and to reject it if unfavorable. Moreover, there is a fixed presumption of law — as charged in this case — that “every witness has sworn to the truth.” Nothing in this record refutes that presumption.

The matter of these papers was of controlling significance in the Court of Criminal Appeals. It may seem, at first blush, that I am being unduly critical of that Court’s finding of sufficiency. I do not so intend. But for these papers, it is my judgment that the Court of Criminal Appeals would have reversed this conviction.

On page 2 of its opinion, the Court of Criminal Appeals said:

During the evening, following the death of Harry Gipson, the appellant and his brother, Dan Delk, who lived in Dicken-son [actually Dickson] were together at a party at a home in Centerville. During this time they were seen conversing together and at one time left Centerville and drove to Nashville, along the roadway where papers of the deceased were found, to bring a man from work. (Emphasis supplied).

With utmost deference, the Court of Criminal Appeals was in plain error in this factual finding. Highway 100 does lead from Centerville to Nashville and it was on this heavily traveled highway that the papers were found. They were found on the north side of the Duck River bridge. The town of Centerville, including the local General Shoe Plant where Sam and Dan went to bring an employee home, lies south of the Duck River. This mistake was natural and understandable, but unfortunate since it accounts for an affirmed conviction.

Elsewhere in its opinion the Court of Criminal Appeals notes that the appellant “traveled that highway that evening.” There is simply no record support for this finding.

It is true, as suggested by the majority, that the defendant and the deceased had had some trivial previous difficulty; however, as found by the Court of Criminal Appeals, “this did not appear to be serious.” Defendant and a brother, while scuffling in a beer joint owned by the deceased, had broken a door and, as found by the Court of Criminal Appeals, he “paid to fix the door on demand.”

It is true that defendant on several occasions sent other people into Harry Gipson’s Market to make purchases for him. But it is also true that he went in the market from time to time. As a matter of fact he was in the store at 11:30 a. m. the day of the murder, at 5:15 p. m. on the day of the murder, and again around 6:00 p. m. There is no credible proof of ill will between the deceased and Sam Delk. As a matter of fact, the proof is that upon hearing of Harry Gipson’s murder, Sam Delk was in “a mourning-like stage” or “a grieving state,” and went immediately down to the market to see about him.

Without explaining its significance, the majority asserts that there was evidence that the defendant did not arrive at Gip-son’s Tavern until approximately 6:20 p. m. The record shows that Tom Gray went to the tavern and told those present that Harry Gipson had been shot. When Gray learned of the murder he was at his home nearby; he stayed there about ten or fifteen minutes; he then went to Harry’s Market and from there to the tavern where he told the patrons of the murder. Sam Delk had been there fifteen to twenty minutes at the time. From this it would appear that Sam Delk left the market and went immediately to the tavern. This, however, is of no significance.

The majority, in its revised opinion, proceeds upon the assumption that because various people saw no one enter or leave Harry Gipson’s Market this fact operates to establish that no one came in behind Delk and, therefore, he was the culprit.

First, the majority says:

Louise Chavers went to her front door, hearing Floyd Stone’s horn blow. The well lighted front of Gipson’s Market was fully visible to her from that vantage point

Louise Chavers lives on the same side of the street as Harry Gipson’s Market. Her front door is approximately 140 feet from the front door of Gipson’s Market. At first blush the majority’s assertion of visibility would appear valid. Upon examination however, a person standing in the front door of Louise Chavers’ house cannot see the front door of Gipson’s Market. Her front door appears to be in the dead center of her house.

Columbia Avenue makes a pronounced curve approximately midway between Louise Chavers’ house and Gipson’s Market. Both are located on the “inside” of the curve. The front of each structure appears to parallel the long axis of the road. The result is that a person standing at the front door of Louise Chavers’ house cannot see the front door of Gipson’s Market — with or without two trucks parked in front of the intervening building where they have been for more than two years. Exhibit pictures 9, 10, 11, 14, 15 and 17 make this clear. There is a utility pole directly across the street from Gipson’s Market. A line extended from the front line of Louise Chav-ers’ house runs almost exactly to this pole across the street. See Exhibit pictures 10, 11, 13 and 14.

We know that Chavers did not leave the house when she heard the horn blow for she says, “I just walked to the front door and pulled the shades down and looked out.” Where did she look? Obviously, to her left front, toward the sound of the horn, and not hard right toward the front of Harry Gipson’s store.

Next the majority says that those outside the Walker house, along with Floyd Stone and '‘Goon” Gilbert in or approaching the parked car, had a clear view of the front door of Gipson’s Market. Floyd Stone was parked with the long axis of his car at an angle of more than 90 degrees from a line drawn from the respective front doors. Had he looked over his right shoulder he could have seen. Vorgerine Walker and “Goon” Gilbert could have looked straight ahead some 250 feet and they could have seen.

By parity of reasoning, it may be argued that Sam Delk was not in the store. No one saw him enter; no one saw him leave. The fact that these witnesses did not testify to seeing anyone enter or leave the store is of no probative value.

In Section I of its opinion, the majority states the time interval at “seven minutes and twelve seconds . . . for the killer to accomplish the act and escape before discovery of the body.” In the revised opinion, the majority reduces the time to “less than three minutes or perhaps even only two.” I have not dealt in time intervals because I regard them, at best, as only approximations. Were I to follow the same reasoning as the majority, I would comment on the fact that Floyd Stone and “Goon” Gilbert were in the store “at least three to five minutes” after they say they discovered the body and no one saw them enter or leave. Further, they too were present. Very little differentiates their position from that of Sam Delk.

The majority’s effort to shore up this case only serves to dramatize its inherent deficiencies.

We are dealing with the liberty of a human being.

IV.

Conclusion

My dissent is aimed at the remand. I regard the errors cited as grounds for reversal as being trivial.

I am in disagreement with the rationale of the majority’s ruling with respect to the comment of the District Attorney General on the failure of the defendant to call his twin brother, Dan Delk. As I understand the holding of the majority, this comment was improper because there was no direct proof that Dan Delk was available.

I cannot agree that where a lawyer identifies a witness sitting in the courtroom, during the proceedings conducted at a public trial, and without contradiction or dispute as to identity, that availability has not been fully demonstrated. I find nothing improper or unfair on the part of the Assistant Attorney General, in this respect.

It is the general rule in this jurisdiction that while the State may not comment on the failure of the defendant to take the stand, this prohibition does not extend to comment on his failure to offer other witnesses in explanation and rebuttal of incriminating facts and circumstances. Hays v. State, 159 Tenn. 388, 19 S.W.2d 313 (1929). See also, McCracken v. State, 489 S.W.2d 48 (Tenn.Cr.App.1972).

Normally, the failure of a party to produce an available witness who is in a position to know the facts, and who is apparently favorable to him, gives rise to presumption or inference, permissive and rebuttable in nature, that the testimony of such witness would not sustain the contention of such party. Wooten v. State, 203 Tenn. 473, 314 S.W.2d 1 (1958); National Life & Accident Ins. Co. v. Eddings, 188 Tenn. 512, 221 S.W.2d 695 (1949); Kidd v. Tennessee Gas Co., 33 Tenn.App. 302, 231 S.W.2d 793 (1950); Craig v. Marquette Cement Mfg. Co., 190 Tenn. 234, 229 S.W.2d 148 (1950); Waller v. Skeleton, 31 Tenn.App. 103, 212 S.W.2d 690 (1948).

But this presumption or inference does not apply where the plaintiff fails to make out a case, for in such a case it is not incumbent upon the defendant to introduce any evidence. St. Louis, etc. R. Co. v. Finley, 122 Tenn. 127, 118 S.W. 692 (1909).

In 29 Am.Jur.2d, Evidence, Sec. 180 (1967), the exception to the rule is stated thusly:

The rule applicable to a party who fails to call witnesses exclusively in his control does not apply to a defendant who introduces no evidence at all. A defendant, if so advised, may well let the case go to the jury on weakness of the evidence presented by a plaintiff, who had the burden of proof, without being taken to task for failure to call certain witnesses, or have an adverse inference drawn which would not follow from an entire failure to refute the evidence introduced.

Thus, it was not the matter of availability that makes the remarks by the Assistant Attorney General objectionable; but the entitlement of the defendant, as a matter of law, to take the position that the State had not made out a case and decline to offer proof.

Therefore, I reach the same conclusion as the majority, but by different reasoning process. I view the comment as being erroneous, but harmless. I cannot bring myself to believe that it came as any startling revelation to the jury that Dan Delk, the defendant’s twin brother who was “here all week,” was, in fact, present in the courtroom at that time.

On June 14, 1978, the Supreme Court decided Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15, and Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1. These cases stand for the proposition that when a criminal conviction is reversed for evidentiary insufficiency, the double jeopardy clause precludes a second trial. See Overturf v. State, 571 S.W.2d 837 (Tenn.1978).

It has been widely suggested that appellate courts would frustrate the import of these cases by the simple expedient of finding some ground of reversal not involving evidentiary sufficiency. I cannot bring myself to believe that appellate courts in general, or my colleagues in particular, would follow such a practice. However, irrespective of purity of motive, this case can only lend credence to this unfortunate line of thinking. This is regrettable.

The State is not entitled to two bites at the apple. Every trial lawyer knows that there are some cases that simply cannot be won because the proof is not there. This is such a case.

In reading the record of trial I am impressed that the young Assistant Attorney General who conducted the entire prosecution did so with conspicuous ability. His presentation of his case, and more particularly his marshalling of the proof, were superb. He milked the case dry. It is a tribute to his painstaking prosecution that he obtained a conviction in spite of a deficiency of evidence. His “lawyering,” however, does not alter the failure of the State to make out a case.

I would reverse and dismiss.

OPINION ON PETITION TO REHEAR

FONES, Justice.

The petition to rehear is denied.

      . (1) A 1975 American Legion membership card; (2) a satisfactory chest x-ray report dated February 4, 1974; (3) a food handler’s certificate dated June 25, 1974; and (4) two insur-anee premium receipts in the sum of twenty-five dollars each, one to policyholder Eugene H. Gibson and one to Georgia H. Gibson, both dated October 17, 1975.

       Since the revision and recirculation of the main opinion, I have reread the entire record.

      . I reserve for another day a consideration of Rule 13(e), Tenn.R.App.P. and the evident change it makes in our standard of appellate review.