author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Andrew SNEED, Defendant-Appellant.
    No. 36072.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 14, 1975.

      London & Greenberg, Lawrence J. Fleming, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Frank Kaveney, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   STEWART, Judge.

Defendant was charged with stealing property of the United Lutheran Church — a cash box containing approximately $34— from the person of one William Moss. A jury found him guilty as charged and assessed punishment at two years imprisonment in the Missouri Department of Corrections. Defendant has appealed from the ensuing judgment.

Defendant does not challenge the sufficiency of the evidence to sustain the conviction; a brief statement will suffice. William Moss, an officer of Unity Lutheran Church, and his wife were leaving the rear of the Sunday School building en route to their car which was on the parking lot. Mr. Moss was carrying a cash box in his left hand. The box contained $34.25 in cash and $120.00 in redeemable stamps which were for use in the extension fund project of the church. As they were crossing the parking lot defendant and another man approached them. The one man bumped Mr. Moss on the right side and as he did so defendant grabbed the cash box and ran across the parking lot. Mr. Moss chased defendant into a residential area and between two houses. As defendant jumped a fence he lost his balance and Mr. Moss went over the fence and landed upon him and recovered the cash box. They started to walk back to the church. Defendant got about ten feet in front of Mr. Moss. At about this time Mr. Oliver Overy, the church custodian, who had been summoned to assist, came toward them. As Mr. Overy approached, defendant attempted to withdraw an object from his right topcoat pocket. Mr. Overy saw the butt of a gun which had apparently hung up in the coat pocket. Mr. Overy grabbed defendant’s arm but defendant broke loose and ran. Mr. Overy ran after defendant and subdued him. Mr. Overy grabbed defendant by the right arm and Mr. Moss reached them and grabbed defendant by the left arm and they escorted defendant back to the church. A police officer arrived within two minutes and took a .45 caliber revolver from the right hand pocket of defendant’s topcoat. The gun was fully loaded, however, it was inoperative because it lacked a firing pin.

Defendant lodged a continuing objection to all references to the gun made in opening statement, in testimony, and in the closing argument. Defendant also objected to the introduction of the gun and clip as an exhibit. Defendant’s contention is that “such evidence was irrelevant to the offense charged and highly inflammatory and prejudicial to defendant.” In his argument defendant takes the position that the evidence to which he objects was inadmissible because it constituted evidence of other crimes.

Defendant’s contention had been specifically ruled in State v. Garner, 360 Mo. 50, 226 S.W.2d 604 (1950). In that case defendant was convicted of assault to do great bodily harm with “a speeding automobile”. The defendant was pursued by the police and came to a halt only after the policeman pulled alongside with a drawn pistol. Over objection, the trial court permitted the police officer to testify that when they got to the car the defendant was crouched upon the floor of the car with a hammer in his hand. The court said l.c. 609:

“Proof of flight, resisting or attempting to escape arrest, and possession (and all the more threatened use) of a weapon (the hammer) at that time, are held competent, as bearing on the question of his guilt or innocence, even though the weapon was not used in the perpetration of the alleged crime.”

This has long been the law in Missouri. See State v. Sanders, 76 Mo. 35, 36 (1882). The Illinois case of People v. Gambino, 12 Ill.2d 29, 145 N.E.2d 42, 45 (1957) contains a lucid exposition of the principle.

While the court may have assigned other reasons for the admissibility of this evidence which may be equally valid we feel that the principle above enunciated most precisely rules this point. It will thus serve no purpose to discuss other theories advanced for the admissibility of this evidence because a trial court may not be convicted of error if evidence is admissible on any theory. State v. Cox, 508 S.W.2d 716 (Mo.App.1974).

Defendant did not testify but called his wife as a witness. Mrs. Sneed testified that she had been married to defendant for six years and that they had a son four years of age; that her husband had been “nervous and worried”, “upset for a while”. He was worse the night before this incident. The court sustained the objection to defendant’s offer to prove by Mrs. Sneed that on the night before the incident giving rise to the case the defendant said, “. . . I have got to get money somewhere, I’m going to have to borrow it. I have to find someone to lend me the money I don’t want to take it from anybody, but I have to find someone to lend me the money.”

Defendant further made an offer to prove by Mrs. Sneed that she had been suffering physical problems and that they had suffered economic reverses all of which had a wearing effect upon his mind, “that he stated on numerous occasions to her that he had to find money. He wanted to borrow. He approached many people.” Objection to this offer of proof was also sustained.

Defendant contends that the above testimony was admissible to show defendant’s state of mind immediately prior to the alleged offense. He argues that such statements should be admissible to show lack of intent to permanently deprive the owner of its property.

The evidence respecting defendant’s statements to his wife with respect to his desire to borrow money are obviously hearsay and generally inadmissible.

The courts of this State have long held that declarations of an accused with respect to his intentions made before or after the event are not admissible unless they are part of the res gestae, State v. Shermer, 55 Mo. 83 (1874); State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42, 51 (1937); State v. O’Neal, 436 S.W.2d 241, 244 (Mo.1968).

Defendant’s “Points Relied On” states that the declarations were “admissible to show defendant’s state of mind immediately prior to the alleged offense.” He does not argue that the declarations were part of the res gestae nor are the declarations a spontaneous statement produced by the act itself. State v. O’Neal, supra.

Defendant also argues that the court erred in refusing to admit the testimony respecting his background and personal problems because they were matters to be considered by the jury in assessing punishment. On this matter we are bound by the opinion of the Supreme Court in State v. Clemmons, 460 S.W.2d 541 (Mo.1970). The court there held that the extent to which the defendant may produce evidence with respect to his background is within the sound discretion of the court.

Finding no error we affirm the judgment of the trial court.

CLEMENS, P. J., and KELLY, J., concur.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    VALLEY STEEL PRODUCTS COMPANY, Appellant, v. SELBY INDUSTRIES, INC., Respondent.
    No. 36227.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 14, 1975.
    Blumenfeld, Kalishman, Marx, Tureen & Paster, Michael S. Moran, Clayton, for appellant.
    Armstrong Teasdale, Kramer & Vaughan, Justin C. Cordonnier, St. Louis, for respondent.
   KELLY, Judge.

Plaintiff appeals from an order of the circuit court quashing service of process upon defendant. Service was made under the provisions of § 506.500 RSMo 1969.

We conclude that we have no jurisdiction as the order appealed from is not an appealable order. Color Process Co. v. Northwest Screenprint Co., 417 S.W.2d 934 (Mo.1967); Continent Foods Corp. v. National-Northwood, Inc., 470 S.W.2d 315 (Mo.App.1971). The proper procedure for challenging an order sustaining a motion to quash service is a writ of mandamus. State ex rel. American Institute of Marketing Systems v. Cloyd, 433 S.W.2d 559 (Mo. banc 1968). See: E. H. Fischer, Inc. v. National Industrial Chemical Co., Missouri Court of Appeals, St. Louis District (1975), 526 S.W.2d 403.

Appeal dismissed.

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


author: HENRY, Justice.

text:
    INLAND CONTAINER CORPORATION, Petitioner, v. Emma A. MARCH, Respondent.
    Supreme Court of Tennessee.
    Sept. 29, 1975.
    Rehearing Denied Nov. 10, 1975.
    John Lee Williams, Porch, Peeler & Williams, Waverly, for petitioner.
    Mark H. Collier, Waverly, for respondent.
   OPINION

HENRY, Justice.

The sole question before the Court for determination is the correctness of a jury award of punitive damages, approved by the trial judge and upheld by the Court of Appeals.

I.

Plaintiff-respondent is the owner of a 50 acre tract of unimproved real estate located in Humphreys County. To all intents and purposes, it is surrounded by a 1900 acre tract upon which the Petitioner, Inland Container Corporation, was cutting timber. The smaller tract is virtually inaccessible, except by jeep or similar vehicle; has no internal road; is only partially under fence; and its boundaries are not well defined. It was acquired by the owner partially by quitclaim deed and the description is insufficient to identify the perimeters. There were some old hacks or blaze marks, but they had been partially obscured by the passage of time. The land was idle and unproductive and its principal present value lies in the timber.

It is admitted that petitioner’s workmen encroached upon respondent’s property and cut and removed the timber from some five and one half acres.

The record establishes that there was some damage to a portion of the remainder of plaintiff’s property, and supports the charge in the complaint that “no effort was made on the part of said defendants to orderly pile tree-tops and other refuse remaining, including limbs, butts, furls, snarls and curls”. Additionally petitioner did some grading of an old roadway preparatory to hauling the felled timber. The record leaves no doubt but that this operation was conducted in a conspicuously sloppy manner and to the detriment of this small landowner.

It is equally clear from the record, however, that the invasion by Inland Container was innocent and inadvertent, and occurred because of ill-defined and poorly marked boundaries of a wooded tract of timber land in a remote and inaccessible area.

II.

The complaint reflects that the complainant sued for compensatory damages (both general and special) and for punitive damages. In addition to suing for the value of the timber removed, she sought to recover for the damage done to her remaining property. She specifically sued for special damages, and, in a separate paragraph for punitive damages.

The trial judge charged on all elements of damage. With respect to special damages, he charged:

In other words the fair market value of the trees at the time they were cut, standing on the land in the woods, plus any special damage to the value of the land, caused by the removal of the trees, if that appears from the proof in this case.
* * * * * *
So, if then under the definition of negligence you find that the damage sustained by the plaintiff to the land was the direct and proximate cause of this negligence of the defendant through its agents and servants while they were on the land cutting timber, then the defendant would be liable for this.
* * * * ⅜: *
As to the damages to the land which would be included in that amount you would determine that, if any, and award to the plaintiff an amount as damages to the land . . . (emphasis supplied)

Additionally there was a full and correct charge on punitive damages.

The jury was clearly and fully instructed on damages and was told to bring in separate verdicts for punitive and compensatory damages. In response to these instructions the jury foreman reported the verdict as follows:

We decided in favor of the Plaintiff and award her damages of $2,500.00, and punitive damages of $5,000.00; total of $7,500.00.

The judgment followed the verdict.

There is no escape from the conclusion that the jury’s award of $2,500.00 compensatory damages was intended to cover all general and special damages. These are constituent elements of compensatory damages which are awarded to make the plaintiff whole or to compensate him for the loss he has sustained because of the wrongful conduct of the defendant.

In Caruthers, History of a Lawsuit, Eighth Edition (1963) at Section 155, the distinction between general and special damages is made thusly:

General damages are such as naturally and necessarily result from the wrong of injury complained of, while special damages are such as naturally but not necessarily result from the wrong or injury complained of.

See also Burson v. Cox, 65 Tenn. 360 (1873).

Punitive damages are allowed under Tennessee law and are given in excess of compensatory damages and in addition thereto. They are awarded in cases involving fraud, malice, gross negligence or oppression, Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557 (1899); or where a wrongful act is done with a bad motive or so recklessly as to imply a disregard of social obligations, Stepp v. Black, 14 Tenn.App. 153 (1931); or where there is such willful misconduct or entire want of care as to raise a presumption of conscious indifference to consequences. Honaker v. Leonard, 325 F.Supp. 212 (E.D.Tenn.1971).

We find nothing in this record to indicate the presence of any of the essential ingredients to an award of punitive damages. Special damages, of which there is ample proof in the record, may not be equated with punitive damages. Railroad v. Ray, 101 Tenn. 1, 46 S.W. 554 (1898). With utmost deference to the Court of Appeals and to the trial judge, we think that they confused special and punitive damages. Punitive damages relate to the causation; special damages relate to the result. Here we are clearly dealing with special damages.

The action of the Court of Appeals is reversed and the costs of this appeal are taxed against the respondent.

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


author: BROCK, Justice.

text:
    Paul Edward UNDERWOOD, alias, Appellant, v. STATE of Tennessee, Appellee.
    Supreme Court of Tennessee.
    Oct. 20, 1975.

      Robert H. Watson, Jr., Geoffrey D. Kres-sin, Knoxville, for appellant.
    Ronald A. Webster, Dist. Atty. Gen., Knoxville, Michael E. Terry, Asst. Atty. Gen., Nashville, Ralph E. Harwell, Asst. Dist. Atty., Knoxville (R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel), for appel-lee.
   OPINION

BROCK, Justice.

The appellant was charged, tried and found not guilty of a criminal offense in the trial court. Thereafter, appellant filed the instant proceeding to have expunged the records made in connection with said criminal case as provided by the expungement statute, T.C.A. §§ 40-4001-^0-4004. The statute authorizes one who has successfully defended a criminal charge to have all public records of the case expunged upon his filing a petition therefor. In addition to basing his right to relief upon the expungement statute above-mentioned, the appellant, also, in the alternative, asserted that his “right of privacy” under the Constitution of the United States entitled him to have said records expunged. The State, through the District Attorney General, filed a motion to dismiss the appellant’s petition on grounds that T.C.A. § 40 — 4001 et seq. is in violation of the Tennessee Constitution and, therefore, void and that the Constitution of the United States does not guarantee to the appellant any right to have the records in question expunged.

The trial court granted the State’s motion to dismiss the appellant’s petition, holding that T.C.A. § 40-4001 et seq. “emasculate and repeal, and/or amend a large body of our code, all without any recitation in the caption of the act that such is being done” in violation of the provisions of Article II, § 17, of the Constitution of Tennessee which provide that “all acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended.” Further, the trial court held that said expungement statute violates the separation of powers provisions of Article II, § 1 and § 2, of the Constitution of Tennessee and that said expungement statute was void because “vague, ambiguous, and overbroad.” The trial court also held that the appellant was not entitled to the relief sought by virtue of any “right of privacy” guaranteed by the United States Constitution.

Since we hold that T.C.A. §§ 40-4001— 40-4004 are constitutional and valid and entitle the appellant to the relief sought, we do not reach the merits of the appellant’s contention that he is entitled to such relief by virtue of a “right of privacy” under the Constitution of the United States.

The appellant assigns error to the actions of the trial court in the premises and the State, acting through the Attorney General of Tennessee, has taken the position in its brief and in oral argument that T.C.A. §§ 40-4001 et seq. are, indeed, constitutional enactments and that the judgment of the trial court in this respect should be reversed.

This Court speaking through Chief Justice Fones, in Martin v. State, 519 S.W.2d 793 (Tenn.1975) has already determined that the expungement statute here attacked does not violate Article II, § 17, of the Constitution of Tennessee. We adhere to the decision in Martin and, therefore, sustain appellant’s assignment of error to the effect that T.C.A. § 40-4001 et seq. does not violate Article II, § 17, of the Constitution of Tennessee and that the trial court erred in holding to the contrary.

We are equally convinced that the expungement statute does not violate the separation of powers provisions of Article II, §§ 1 and 2, of the Tennessee Constitution. Of course, the doctrine of separation of the powers, as set out in Article II, §§ 1 and 2, of the Constitution of Tennessee, is a fundamental principle of American constitutional government. Nevertheless, it has long been recognized that it is impossible to preserve perfectly the theoretical lines of demarcation between the executive, legislative and judicial branches of government. Bank of Commerce and Trust Company v. Senter, 149 Tenn. 569, 260 S.W. 144, 151 (1924); Richardson v. Young, 122 Tenn. 471, 493, 494, 125 S.W. 664 (1910). There is necessarily a certain amount of overlapping. The three departments are interdependent.

“The Constitution does not define in express terms what are legislative, executive, or judicial powers.
“Theoretically, the legislative power is the authority to make, order, and repeal, the executive, that to administer and enforce, and the judicial, that to interpret and apply, laws.” Richard v. Young, supra, at 668.

The making and keeping of records of court proceedings requires the cooperative action of the judicial, the legislative and the executive branches of government. A legislative enactment which does not frustrate or interfere with the adjudicative function of the courts does not constitute an impermissible encroachment upon the judicial branch of government. We hold this ex-pungement statute to be such an enactment. It does not frustrate or interfere with the judicial function.

Basically, T.C.A. §§ 40-4001 — 40-4004 deal with the use and disposition of public court records. Historically the legislature has dealt with such matters in accordance with public policy. The power to establish guidelines for court clerks and court records has always been assumed to be within the legislative sphere. To say that this statute constitutes encroachment is to say that the clerks of the court and public court records are beyond legislative control. For certainly, the instant statute is no less administrative nor any more encroaching than dozens of other record regulating statutes found throughout the Code.

On the question of judicial power, it is interesting to note that the courts in other jurisdictions where no expungement statute existed have found that, absent such a statute, they are without authority to order expungement. See Sterling v. Oakland, 208 Cal.App.2d 1, 24 Cal.Rptr. 696 (1962); Spook v. District of Columbia, 283 A.2d 14 (D.C.App.1971); Mulkey v. Purdy, 234 So.2d 108 (Fla.1970); Cisseil v. Brostron, 395 S.W.2d 322 (Mo.App.1965); Statman v. Kelly, 47 Misc.2d 294, 262 N.Y.S.2d 799 (1965); see generally 46 A.L.R.2d 900, 909. The inference from such decisions is that control of the use of such records is properly a legislative, not a judicial function. We are satisfied that this Act does not violate the separation of powers provisions of our Constitution.

The trial court concluded that this Act was so “vague, ambiguous and over-broad” as to be invalid. We are unable to agree. The language of the Act is simple, direct and precise. Of course, it must be given a reasonable construction. The trial court apparently was alarmed by the language in T.C.A. § 40-4001 that a petitioner’s records “be removed and destroyed.” We are confident that clerks will be able to devise and employ methods of “removing and destroying” which will carry out the direction of the statute without emasculating the records relating to other persons and cases. It is only when the wording of a statute is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application that the statute is rendered invalid for vagueness. Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345 (1968). The language of this statute passes this test.

We reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion. Costs are adjudged against the appellee.

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


author: COOPER, Justice.

text:
    In re DELINQUENT TAXPAYERS, etc. (two cases). John McCRARY et ux., Appellants, v. STATE of Tennessee, etc., Appellees. John F. SHARBER et al., Appellants, v. STATE of Tennessee, etc., Appellees. E. E. THOMAS et ux., et al., and Susie Shannon, Appellants, v. STATE of Tennessee, etc., Appellees.
    Supreme Court of Tennessee.
    Oct. 20, 1975.

      Robert E. Lillard, Nashville, J. B. Annam, Hendersonville, for appellants.
    Robert W. Rutherford, Metropolitan Atty., Nashville, for appellees.
   OPINION

COOPER, Justice.

In three cases consolidated for appeal, the appellants insist the Chancery Court of Davidson County erred in setting aside sales of real property conducted in the course of proceedings to collect delinquent taxes assessed against properties owned by John McCrary and wife, John Sharber and wife, and Susie Shannon. The properties involved were sold at three separate tax sales. The McCrary and Sharber properties were purchased at tax sales by appellants, J. B. Annam, R. W. Perkerson, and R. V. Perkerson, Jr., with each purchaser buying a one-third interest in the properties. The Shannon property was purchased by appellant, J. B. Annam. Decrees confirming the sales were entered in each case. Subsequently, and after the passage of several months, the chancellor entered the following decree in each case, the only difference being the date of the sale being set aside:

“It appearing to the Court that the defendant has exercised the Equity of Redemption and paid all delinquent taxes incorporated and consolidated in this suit, it is therefore, ORDERED, ADJUDGED, and DECREED:
1. That the public auction sale held 18 October 1973 be, and the same hereby is, set aside.
2. That the purchaser be refunded his purchase money, and
3. That the balance of the fund, if any, be paid to the defendant upon application.”

Still later, in the Shannon case, the chancellor held the sale of the Shannon property to be void for lack of service of process on Susie Shannon.

Appellants insisted in the Chancery Court by motion and now in this court on appeal that:

(1) the property owners had not properly exercised their equity of redemption; and

(2) that appellants were entitled to notice before entry of the decrees setting aside the tax sale, and that without notice, the decrees are void.

Appellants also insist with respect to the Shannon property that the chancellor erred in holding the sale to be void for lack of service of process on Susie Shannon.

Appellants insist that appellees did not effectively exercise their right of redemption in that they paid the redemption money to the clerk of the chancery court rather than to the purchaser, citing T.C.A. 64-813 which provides inter alia for payment of redemption money to the clerk of the court “where the purchaser is absent from his usual place of residence, so that the tender to him in person is prevented, or resides out of the county where the land lies . .” Appellant reasons from this statute that the debtor must tender the redemption money to the purchaser under all circumstances other than the two set out in T.C.A. 64-813. When faced with a factual situation similar to the cases sub judice, this court had the following to say in Hitt v. Coal Co., 124 Tenn. 334, 139 S.W. 693 (1910):

“The first question arises on the validity of the redemption. We are of opinion that under our redemption statutes . the party whose land has been sold may pay the redemption money to the clerk of the court in which the land was sold. He may also pay it to the purchaser or any one claiming under him. Of course, if he pay it to the purchaser after he has notice of a transfer by him to another, the redemption would not be a good one. Likewise, if he pay it to one claiming under the purchaser he takes the risk of the claim being valid. He is not bound to decide such a controversy actual or possible. We believe that a true construction, preserving the beneficent right of redemption, is that the debtor may always make certain his redemption by paying the redemption money, in ease the land has been sold by the judgment or decree of a court, to the clerk of the court from which the sale was made; in other cases to the clerk of the circuit court.”

We are still of the opinion the above construction of the redemption statutes is correct and is the construction most likely to preserve “the beneficient right of redemption.” We are of the opinion, however, that where the redeeming party undertakes to exercise his equity of redemption by making payment to the clerk of the court, as did appellees in these cases, notice should be given the purchaser prior to the entry of an order approving the redemption of the property or the issuance of a deed of redemption so that the purchaser will have the opportunity of testing the redemption payment, either as to amount or as to time of payment or on any other meritorious ground. Such notice was not given the purchasers-appellants in these cases; but, as the cases have developed, the lack of opportunity initially to test the redemption payment was not material. The appellants made a general appearance in these cases by filing a motion testing the chancellor’s actions on grounds other than jurisdictional and were given a hearing by the chancellor on all issues raised by appellants.

No question having been raised in the chancery court as to the amount paid to redeem the property or to the time of payment, we hold as' did the chancellor that the appellees effectively exercised their statutory right of redemption by payment of the requisite amount to the clerk and master in these cases.

Though not the basis of a specific assignment of error, the procedure employed by the chancellor to enforce the ap-pellees’ right of redemption — that is, the entering of decrees setting aside the tax sales under which appellants held title to the properties — was improper. Decrees of the chancery court are subject to its control and may be amended, modified or vacated only if application is made for such action within thirty days from entry of the decree, except in cases coming within the provisions of either rule 60.01 or rule 60.02 of the Tennessee Rules of Civil Procedure. See T.C.A. 27-312; Kelly v. Walker, 208 Tenn. 388, 346 S.W.2d 253 (1961); Citizens’ Bank & Trust Co. v. Bayles, 153 Tenn. 40, 281 S.W. 932 (1925). In the cases sub judice, the decrees confirming the tax sales and vesting title to the properties in appellants were entered months before appellees sought to redeem the properties and, consequently, the chancellor had no authority to vacate and set aside the decrees confirming the sales. On concluding that the appellees had properly exercised their right of redemption the chancellor should have entered decrees ordering the appellants to convey the properties to appellees or, as an alternative, entered decrees divesting appellants of title and vesting title in appellees so as to remove any possible cloud on the title to the properties resulting from the tax sales and later redemptions. On remand, such decrees will be entered.

The chancellor justified setting aside the decree confirming the tax sales in the Shannon case on a second ground — that the record showed that Susie Shannon was never served with process. It is interesting to note Susie Shannon did not raise the question of lack of process until after she had redeemed the property sold at the tax sale, and raised the issue then as a further defense to the action of appellant in challenging the effectiveness of the redemption. Under these circumstances, we see no necessity in determining if Susie Shannon did, in fact, have adequate notice of the tax suit and the tax sale.

The decrees entered in the chancery court setting aside the tax, in turn, are set aside. The cases are remanded for entry of decrees in the chancery court ordering the appellants to convey the properties redeemed to appellees or, as an alternative, entry of a decree divesting appellants of title to the redeemed properties and vesting title in the appellees. Costs incident to the appeal are adjudged against appellants and their surety.

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


author: HARBISON, Justice.

text:
    TRI-CITY TOWEL & LINEN SERVICE, INC., Appellant-Defendant, v. Jewell Salyers COPE, Appellee-Plaintiff.
    Supreme Court of Tennessee.
    Oct. 27, 1975.
    Patrick Ledford, Frank K. Moore, Moore, Stout, Waddell & Ledford, Kingsport, for appellant-defendant.
    Daniel B. Minor, J. Kenneth Wright, Kingsport, for appellee-plaintiff.
   OPINION

HARBISON, Justice.

This is a workmen’s compensation case in which the employee fell in a public alley, near the entrance to the building of her employer, as she was returning from lunch. There is no claim of permanent partial disability, but the Chancellor allowed temporary total disability benefits for a period of twenty-two months following the date on which the employee left her employment. The employer has appealed.

The employer operated a laundry in Kingsport, fronting on Clay Street, a public thoroughfare. There was a side entrance opening into a public alley, which was not part of the employer’s premises. Employees were permitted a 30-minute lunch period, during which they were not paid, and they were free to leave the premises and eat lunch at any place of their choice. There is material evidence that employees in fact used both the front door and the side door, although there is some indication that there were signs posted inside the building instructing them to use the Clay Street entrance.

The accident in question occurred during the middle of the day in July 1973. The employee, Mrs. Cope, had left the building by the side door, and had walked down the alley to go to a nearby restaurant. She was returning from the restaurant about five minutes before the buzzer was to sound for her to resume work. She slipped and fell at a point in the alley which was from one to five feet outside the entrance to the employer’s building. There is testimony that some barrels of cleaning fluid, which were used in the employer’s business, had been placed in the alley just outside the door, and that some fluid from these containers had leaked out into the alley, causing it to be slippery. Although disputed, there is evidence that the employee fell in this substance, and sustained the injuries for which suit was brought.

The supervisor of the employee came to her aid, and the employee was taken to the hospital for emergency treatment. She returned to work the next day, and continued to work for about four months. She then left her employment in November 1973, stating that she was unable to continue to work because of pain. She married three days after leaving the employment, and never did return to work. She testified that her husband did not want her to go back to work, but she was able to do most of her household duties. She continued to suffer from pain and discomfort, however, and was seen by an orthopedic surgeon in September 1974. He found no evidence of a fracture, but did find tenderness in the coccyx area. It was his opinion that the appellee had sustained a sprain of the joint between the sacrum and the coccyx. He testified that the appellee would probably continue to have symptoms for approximately another year from the date when he saw her.

It is the contention of the appellee that the use of the alley by her was a permissible route to and from the restaurant where she ate lunch, and that a special hazard was created because of the cleaning substance which had leaked into the alley near the door of the building.

There have been a number of reported decisions in this state dealing with factual situations similar to the present case. These were considered at length in the case of Hankins v. Camel Manufacturing Company, 492 S.W.2d 212 (Tenn.1973). There an employee slipped on some ice as she was leaving the premises of her employer to go to a lunch wagon in the rear of the building. In that case the trial judge had not found it material to make a finding whether or not the employee fell on the premises of the employer and had not considered that a determinative issue. This Court, however, reviewing the facts in considerable detail, concluded that the employee had fallen in the doorway of the building which she was leaving, and that she had not actually emerged from the building onto the sidewalk or public alley when she slipped. Under these circumstances the Court permitted a recovery and distinguished a number of earlier cases where the employee had fallen in a public way, going to or from work. In addition, in the Hankins case, the Court noted the fact that employees, regularly, during the course of their duties, used the doorway and the immediately adjacent alley, and that they frequently had to cross the alley to go to another building owned by the employer. Although appellee relies heavily on the Hankins case, we believe that it is not controlling in the present case.

The trial court relied upon the case of Mallette v. Mercury Outboard Supply Company, Inc., 204 Tenn. 438, 321 S.W.2d 816 (1959). In that case an employee was injured in a fall on some concrete steps which led down a steep bank to a marina located on a barge in a lake. These steps were held, however, to be part of the actual premises of the employer. Commenting on this decision in the case of Potts v. Heil-Quaker Corporation, 482 S.W.2d 135 (Tenn.1972), the Court said:

“This holding is based on a finding that (1) these steps were built as an incident to the operation of the marina, and (2) employees had no other reasonable means of getting to and from the marina, (3) the employer necessarily expected the employees to use the steps for that purpose, and (4) the use of the steps was limited to the patrons and employees of the marina.” 482 S.W.2d at 137.

In the Heil-Quaker Corporation case, supra, an employee was required to use a guard gate in going to and from his place of employment. After going through the gate he walked through an open space by a route of his own choice toward a building situated about 150 feet away, where he worked. As he was leaving the building after work on the date of the injury, he slipped and fell on a film of oil which had accumulated on a concrete surface. Reversing the trial court, this Court held the injury to be compensa-ble, stressing the fact that employees were required to use the guard gate, and that the employer had a continuing interest in the employee’s route to and from his place of employment in the welding building.

In the Heil-Quaker case, the Court recognized that ordinarily employees are not covered when going to and from a place of employment, with the exception that if a particular process of going to and from work is furnished by the employer or such transit is required by the employer to be done in a certain manner or over a certain way, and this submits the employee to a definite special hazard, then injuries to the employee en route are deemed compensable.

This rule was discussed at some length in the case of McKinney v. Hardwick Clothes, 217 Tenn. 457, 398 S.W.2d 265 (1966). In that case an employee fell in a parking lot, from which there was access to the employer’s plant through three separate doors. The employee fell on the icy surface of the parking lot, and this Court affirmed a holding of the trial court that the injury was not compensable.

Probably the leading case in this state on the subject is Smith v. Camel Manufacturing Company, 192 Tenn. 670, 241 S.W.2d 771 (1951). There an employee fell on a public sidewalk a few feet outside the entrance to the plant where she worked. There were other means of ingress and egress to the building. The employee slipped on some ice on the sidewalk, and this Court denied recovery. The Court, in that case, expressly rejected the “so close by” rule followed in some states, under which compensation is allowed if the employee is actually injured on the premises of the employer or so close thereto that the place of injury is considered to be a portion of the premises. See also Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386 (1955).

In the case of James v. Sanders Manufacturing Co., 203 Tenn. 274, 310 S.W.2d 466 (1958) an employee fell on a public sidewalk on a metal cover of a water meter, just outside the front entrance to her place of employment. This was the only entrance to the building. It was also alleged that the shoes of the employee had been coated by excess amount of wax placed on the floor of the employer’s building. Compensation was denied, upon the ground that the employee was on a public way, after having left her place of employment.

Admittedly the cases on this subject involve narrow factual distinctions, but compensation has usually been denied where an employee is on a public thoroughfare or way. In the case of Travelers Indemnity Company v. Charvis, 221 Tenn. 593, 428 S.W.2d 797 (1968), an employee slipped and fell in a hallway between two buildings of a college. She was en route to her place of employment, but had not yet begun her duties or reached her work station. Even though the hall in which she fell was an area where she might have been required to perform duties during the course of the day, compensation was denied on the basis of the Sanders Manufacturing Company, Camel Manufacturing Company and Vanderbilt University cases cited above.

Since the employee in the present case fell in a public alley, which was not a required route for her use, and at a time when she was not performing any services for her employer, we are of the opinion that her injuries did not arise out of and in the course of her employment as those terms have been interpreted in the case law of this state.

In view of the foregoing disposition of the case, we find it unnecessary to consider the other assignments of error filed on behalf of the employer.

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

FONES, C. J., COOPER and HENRY, JJ., and HYDER, Special Justice, concur.

       The exact date does not appear in the record.


author: DROWOTA, Judge.

text:
    John A. McDONALD et ux., Plaintiffs-Appellees, v. A. W. CHAFFIN et al., Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    June 27, 1975.
    Certiorari Denied by Supreme Court Nov. 11, 1975.

      Harry S. Lester of Lester, Hildebrand, Nolan, Lane, Underhill, Mondelli, Flynn & Porter, Nashville, for defendants-appellants.
    Richard D. Taylor of Glasgow, Adams & Taylor, Nashville, for plaintiffs-appellees.
   OPINION

DROWOTA, Judge.

This appeal presents the question whether a covenant restricting the use of property to residential purposes prevents the use of such property as a church.

Plaintiff-appellees John A. McDonald and Evelyn McDonald are property owners seeking to enforce a covenant restricting the use of certain property purchased by defendant-appellants A. W. Chaffin, Woodrow W. Coleman, Bobby Brown, James P. Sadler, Robert Howell, and Eugene Balch, who are Trustees of the West Meade Church of Christ.

In October of 1973 defendants completed the purchase of property located at the corner of Harding Road and Brook Hollow Road in the West Meade Farms subdivision in Davidson County. The deed provided that “[t]his conveyance is made subject to restrictive covenants and easement of record in Book 1427, page 19, Register’s office for Davidson County, Tennessee, filed for record prior to February 15, 1950.”

The restrictive covenants provided, in pertinent part:

(2). No buildings or other improvements of any kind shall be erected upon or moved on to said land to be used otherwise tha[n] as a private dwelling house, or improvement in connection therewith, and no such building shall be used as an apartment, duplex, hotel, shop, store or place of business of any kind, nor as a hospital, asylum, or similar institution, nor as a place of public gathering. No garage, servant’s house, or other improvement shall be erected, maintained, or used except in connection with a main dwelling house built in conformity with these restrictions, and in no event shall any such garage, servant’s house or other improvements be used as a main dwelling either temporarily or permanently.
⅜ 5⅝ ⅜ ⅝ ⅜ 5⅝
(8). The provisions of this instrument and all restrictions and covenants herein contained shall continue in full force and effect until December 31, 1985.
(9). All of the restrictions and provisions herein contained shall be deemed to be covenants running with the land to which they apply, as set out herein, and shall be binding upon and for the benefit of the purchasers and owners of the lots on said recorded plan, and their respective heirs, successorys [sic], administrators and assigns, and may be enforced by all or any of the owners of property in said subdivision and the failure to enforce these restrictions because of any one violation shall not be deemed a waiver of such right as to a subsequent or other violation, such right being a continuing one.

On December 5, 1973, plaintiffs, owners of nearby property in the subdivision, filed a complaint in the Chancery Court of Davidson County alleging that defendants were using the restricted property for church services and asking that defendants be temporarily and permanently enjoined “from using the property for church services or other public gatherings or from constructing or erecting on the premises any building other than a private residence during the period said restrictive covenants are effective.” On December 17, affidavits by three other property owners were filed. John T. Conners, Jr. stated that he had been “a strong advocate throughout the last ten years of keeping our neighborhood totally residential notwithstanding attempts to locate other activities in the area” and outlined his efforts in preventing the construction of a high school in the area and in “enforcing the covenants” on certain property in the neighborhood that had been contracted for sale to a private club. Jerome Glaser stated that he had “personally witnessed the regular use of the subject property on each Sunday and Wednesday for the past few weeks as a church and [had] seen upwards of fifteen cars parked in the driveway and on the lawn.” Roy Shain-berg stated that he was aware that church services were being held on the property.

On December 18, 1973 defendants answered the complaint, admitting that “more than once since they have purchased the property, they have met on the premises in a private religious gathering” and denying that “the residence has ever been used as a place of public gathering.” The contract for purchase of the property was submitted to the court, and showed that the vendor was aware of the use to which defendants intended to put the property, as the contract was “contingent on obtaining building permit for a church.”

On December 28, 1973 the Chancellor entered a Decree finding that “the plaintiffs’ application for a temporary injunction to restrain the defendants from using the premises as a place of public gathering in violation of the restrictive covenants applicable to said property is well-taken and should issue conditioned upon the plaintiffs making bond in the amount of $2,000.00.” The Chancellor ordered that the injunction take effect January 1, 1974 and continue pending further orders of the court.

On September 16,1974 defendants moved the court to dissolve the temporary injunction. On October 28, 1974 defendants filed an affidavit by Howard F. Butler. Mr. Butler stated that he is a member of the “Lord’s Chapel” and that from late 1971 until April 1, 1973 the church had been permitted to use certain other property in the neighborhood for religious services on a regular basis, without objection from other property owners.

On November 7, 1974 the Chancellor entered a Decree making the temporary injunction permanent, and incorporating a Memorandum Opinion of October 31, 1974. The Memorandum reflected that the parties had agreed that the action of the court on the motion to dissolve the injunction would be determinative of the case. The Chancellor held that defendants were using their property as a church and that such use violates the restrictive covenant “on two counts: (1) as being a use otherwise than as a private dwelling and (2) as a place of public gathering.” From the final decree, defendants prayed for and were granted this appeal, which they have perfected.

Appellants’ single assignment of error is that “the trial court erred in ruling that the injunction against the defendants should be made permanent because such ruling violates the First Amendment of the United States Constitution and since the Restrictive Covenants pertaining to the property do not restrict the use of the same as a matter of law so as to prohibit the defendants from conducting private worship in the residence in question.”

Restrictive covenants are to be strictly construed. That is, they are to be read without the drawing of unnecessary implications and will not be taken to preclude that which is not plainly prohibited. Shea v. Sargent, 499 S.W.2d 871, 873 (Tenn.1973). But in reading the covenant we should give the words a fair and reasonable meaning in order to effectuate its purpose. Hamilton v. Broyles, 57 Tenn.App. 116, 415 S.W.2d 352 (1966).

We agree that any use of the subject property as a church building would constitute a violation of the applicable restrictive covenant. Such use is not for residential purposes, and we take judicial notice that such use would ordinarily entail regular public gatherings. This result is mandated by the plain meaning of the covenant and is consistent with the “complete accord” reached by the many other courts that have considered the question of the applicability to churches of covenants restricting property to residential use. See Annot., 13 A.L.R.2d 1239.

There is no bill of exceptions in this case and we find no proof in the record to contradict the Chancellor’s finding that the building on the subject property was in fact used as a church and not as a residence, or that the worship services were public gatherings. It was conceded by appellants in oral argument that no one resides in the structure. Thus we are not faced with any issue involving the applicability of such restrictive covenants to persons conducting private religious worship services in their homes.

The remaining question is whether federal constitutional restrictions exist on the power of the Chancery Court to enforce the restrictive covenant in this case. The restrictive covenant here involved was expressly incorporated by reference into the deed conveying the property to defendants. As such the restriction originated purely in private conduct. It is not clear whether judicial enforcement of the private agreement, in such a case as this, ought to trigger constitutional restrictions designed to restrain action by the federal and state governments. Of course, the agreement rests upon state law recognizing the validity of such limitations on land use and requires for its effectiveness enforcement by the state. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) (court enforcement of a restrictive covenant excluding persons of designated race or color from the ownership or occupancy of real property constitutes state action).

Assuming, arguendo, the presence of state action, we find that court enforcement of the restrictive covenant does not violate the first amendment. Enforcement of a facially neutral restriction on the use of land for other than residential purposes works only an incidental or indirect burden on appellants no different from that borne by other property owners and does not rise to the level of a violation of their rights of assembly or free exercise of religion. See Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961). In this circumstance, churches are on the same plane as other property owners with respect to the use of land. Because of the incidental nature of the restriction, we are not obligated to find a “compelling” state interest to support the restriction. Compare Braunfeld v. Brown, supra, with Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).

We are not here faced with a situation in which persons are effectively restricted from establishing a place of worship due to a pervasive system of restrictive covenants or zoning throughout the area. Nor are we confronted with an attempt to secure the assistance of the state in the discriminatory enforcement of restrictions as between religions. The first amendment does not preclude reasonable regulation of the time, place, or manner of the exercise of constitutionally protected activities. Jones v. Opelika, 316 U.S. 584, 62 S.Ct. 1231, 86 L.Ed. 1691 (1941). The Chancellor was not in error in enforcing the place restriction agreed upon by the previous owners of the private property herein involved. Cf. Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974).

The decree of the Chancellor is affirmed. Costs of the appeal are taxed to appellants.

Affirmed.

SHRIVER, P. J., and TODD, J., concur.

      . The property is lot number 55 on the Plan of Section I, West Meade Farms, Inc., of record in Book 1424, page 47, Register’s office of Davidson County.

      . Appellants have raised no state constitutional issues.

      . We do not understand the affidavit of Howard F. Butler as establishing an intent by surrounding property owners to engage in discriminatory enforcement of the covenant. Appellants have not so interpreted it, in either their brief or oral argument. It appears the affidavit was originally offered in an attempt to prove a waiver of the restrictive covenant, a contention that has not been pursued in this Court.


author: DUNCAN, Judge.

text:
    Esco BAYS, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    June 10, 1975.
    Certiorari Denied by Supreme Court Sept. 8, 1975.

      Jean Humphrey, Legal Aid Clinic, Knoxville, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., and Jack E. Seaman, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., John W. Gill, Jr., Asst. Dist. Atty. Gen., Knoxville, for defendant-in-error.
   OPINION

DUNCAN, Judge.

The defendant, Esco Bays, and a co-defendant, Dewey Linkous, were both convicted in the Knox County Criminal Court of robbery, with each receiving a penitentiary sentence of not less than six (6) years nor more than ten (10) years. The defendant Bays has appealed his conviction to this Court. Linkous did not appeal.

In his first assignment of error, the defendant alleges that: “The Court erred in not directing a verdict for the Defendant on the charge of Robbery at the close of the State’s proof and again at the close of the Defendant’s proof; and in any event the evidence was not sufficient to support the verdict and preponderated in favor of the Defendant’s innocence.”

The evidence in this case was all adduced by the state’s witnesses, as the defense offered no proof. The evidence showed that on June 29, 1974, the defendant, along with his co-defendant, Dewey Linkous, another man named Scott, the defendant’s wife, and another girl named Debbie Green were out riding around in a car. They were drinking and needed money with which to buy more whiskey, whereupon they went to the Zayre Department Store. After arriving at Zayre’s parking lot, Scott and Linkous got out of the car, and Scott grabbed Mrs. Irene Borden’s pocketbook. The pocketbook contained combs, pencils, keys, some jewelry, and various other items, including a purse (billfold) which in turn contained identification cards, charge-plates, driver’s license, etc. Mrs. Borden was knocked down and dragged some ten (10) feet. The daughter of the victim grabbed Scott and tore his T-shirt. Scott and Linkous got back into the car, which took off at a high rate of speed. The license number of the fleeing vehicle was obtained, and the car was found to be registered in the name of the defendant, Eseo Bays.

Officers were called to the scene and they interviewed the victim and witnesses. The officers put out a call regarding the license number of the suspect automobile. In a few minutes the officers located the vehicle about two (2) miles from the scene of the robbery. The defendant and Linkous were found in the vehicle and were removed therefrom. Lying in the seat in plain view were some credit cards and an employer identification card, all belonging to the victim. Over the visor was found the victim’s driver’s license. The victim identified these items and testified they were in her pocketbook at the time of the robbery. At this juncture, the defendant’s wife, Betty Louise Bays, and Debbie Green walked upon the arrest scene. The Green girl took one of the officers to the Bays home nearby and retrieved a wristwatch from inside the home and gave it to the officer. Shortly thereafter, Mrs. Bays went into the same house and retrieved a gold necklace chain and gave it to the officer. On both occasions the officer accompanied each individual inside the house. Both the wristwatch and necklace were identified by the victim as having been taken from her in the robbery. Other items of evidence taken in the robbery were found by the officers in a paper bag on the side of a street.

The proof also showed that as the car was leaving the scene of the incident, the contents of the pocketbook were emptied in the car. One of the men hung the necklace around Mrs. Bays’ neck. After they drove up to their house, the defendant unfastened the chain from his wife’s neck and told her to take it into the house.

The defendant made a statement to the officers admitting that he was on the scene at Zayre’s parking lot, and that one of his associates “grabbed a woman’s pocketbook”; that his associate “ran and jumped back in the car with the purse”; that he thought his associate “knocked the woman down”; that his associate “got in the car, and we took off”; and that as they drove toward his house, “the other guy throwed (sic) the purse out of the car.”

From the foregoing brief summary of the evidence it is obvious that there is practically no dispute about the facts. From the testimony of the state’s witnesses, including even the defendant’s then wife, Betty Bays, there is no question but what the defendant’s companion robbed Mrs. Borden, and that the defendant drove the vehicle to and from the scene of the robbery. In a matter of minutes the defendant was found in the same vehicle, and several items of the stolen property were found in the vehicle. The finger of guilt points unerringly toward the defendant as one of the guilty perpetrators of this crime.

In considering and passing upon an assignment of error challenging the sufficiency of the evidence to warrant and sustain the verdict of the jury in criminal cases, this Court is bound by the rule that a conviction will not be reversed on the facts unless it is shown by the defendant that the evidence preponderates against the verdict and in favor of his innocence. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173; Schweizer v. State, 217 Tenn. 569, 399 S.W.2d 743; McGhee v. State, 3 Tenn.Cr. App. 324, 460 S.W.2d 875.

By no stretch of the imagination can it be said that the evidence here preponderates against the verdict of the jury. The evidence against the defendant is overwhelming. It shows, without the slightest doubt, that the defendant, Esco Bays, was aiding and abetting in the commission of this robbery. T.C.A. § 39-109. The trial judge was correct in not directing a verdict for the defendant. Shanklin v. State, Tenn. Cr.App., 491 S.W.2d 97. The assignment on the evidence is overruled.

In assignment of error no. 2, the defendant contests the admission in evidence of the credit cards and driver’s license belonging to the victim.

The proof showed that the officers involved in the seizure of these items had interviewed the victim and witnesses on the scene of the robbery, and had learned that a robbery had been committed. They also learned what items had been taken in the robbery. They obtained the license number of the get-away vehicle, and minutes later found the vehicle, being occupied by the defendant and Linkous, whereupon they proceeded to arrest the defendants.

Some of the items were found in “plain-view,” but without even discussing the “plain-view doctrine,” it is axiomatic that upon arresting the defendants upon reasonable cause that they had committed a felony (T.C.A. § 40-803(3) and (4)), the officers’ search of the vehicle was plainly incident to such arrest. Thus, the search was constitutionally permissible and the evidence concerning the fruits of the search was admissible.

It is fundamental law that one lawfully arrested may be searched in his person or premises where arrested, without a warrant, provided the search is incidental to the arrest. Armour v. Totty, Tenn.Sup.Ct., 486 S.W.2d 537; Batchelor v. State, 213 Tenn. 649, 378 S.W.2d 751; Greer v. State, 1 Tenn. Cr.App. 407, 443 S.W.2d 681; Cole v. State, 4 Tenn.Cr.App. 645, 475 S.W.2d 196, and cases therein cited.

In addition to the authorities above stated, certainly the seizure of these items fall within the ambit of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.

This assignment does not have merit.

The defendant next complains that the necklace and watch obtained from the defendant’s home should not have been admitted into evidence on the grounds that they were obtained as a result of an illegal search and seizure.

The proof showed that Mrs. Bays took the officer to the Bays home and voluntarily obtained the necklace and handed it to him. The officer did not search the house, even though invited to do so by Mrs. Bays. Even if what transpired here could be said to constitute a search, then certainly Mrs. Bays consented to the search. Mrs. Bays testified at the trial and admitted she consented to a search. Also the officer stated that she gave her complete permission, but that he did not carry out a search. For whatever significance it might have, we are satisfied that Mrs. Bays gave her voluntary consent to the officer’s entrance into the house, and that she did so intelligently.

A wife can consent to the search of her home and if objects are found which would incriminate her husband, such objects are admissible in evidence. Lester v. State, 216 Tenn. 615, 393 S.W.2d 288; McCravey v. State, 2 Tenn.Cr.App. 473, 455 S.W.2d 174.

With respect to the wristwatch admitted in evidence, we have some reservations. The proof showed that shortly after the robbery, Debbie Green secreted this watch in the Bays home. She later went, in company with the officer, to the house, retrieved it and gave it to the officers. While near in point of time, this incident did not occur at the same time as the incident involving Mrs. Bays referred to above. Apparently, the Green entry, along with the officer, occurred a few minutes earlier, and there is no evidence that anyone else was in the Bays home at the time. Also no evidence is shown that Debbie Green lived at that house, had any possessory interest in said home, or was legally sanctioned in any manner to allow admittance of the officer to the Bays home. Even though Green had left the watch in the premises a short while before, had consented to take the officer inside, and voluntarily turned the watch over to the officer, we are still of the opinion that this item of evidence was seized by virtue of an illegal intrusion into the Bays home by the officer. Nevertheless, the admission of this one item of illegally seized evidence pales by comparison when pitted against the volume of other items of incriminating evidence which were properly seized and lawfully admitted in evidence.

Because of the inconsequential nature of this error, and due to the overwhelming proof showing the defendant’s guilt in this case, we are satisfied that the introduction into evidence of this wristwatch constitutes merely harmless error. T.C.A. §§ 27-116, 117. Further, we find such to be harmless beyond a reasonable doubt. Daugherty v. State, Tenn.Cr.App., 478 S.W.2d 921; Huffman v. State, 3 Tenn. Cr.App. 124, 458 S.W.2d 29; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

In his last assignment, the defendant says that the court erred in failing to charge on “the lesser included offenses of Receiving Stolen Property and Concealing Stolen Property.”

While, as the state insists in its brief, it is arguable as to whether receiving stolen property and concealing stolen property are lesser included offenses in the offense of robbery, we do not find it necessary to address this issue in this case. Here the proof incontrovertibly shows the defendant to be guilty of robbery. Even where a lesser offense is included in a charge, if the proof clearly shows a defendant has committed the higher offense of which he was convicted, it is not error if the court fails to charge on the lesser included offense. Martin v. State, Tenn.Cr.App., 497 S.W.2d 583; Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743; James v. State, 215 Tenn. 221, 385 S.W.2d 86.

We conclude that there is no merit to this last assignment of error.

We have carefully reviewed the entire record and we find no reversible errors.

We express our appreciation to the defendant’s appointed counsel for her able representation of him. She was faced with a conclusive set of facts against her client, yet she advocated his cause with vigor and diligence.

The judgment of the trial court is affirmed.

RUSSELL and O’BRIEN, JJ., concur.


author: GREENHILL, Chief Justice. STEAKLEY, Justice REAVLEY, Justice

text:
    Joe SPINDOR et ux., Petitioners, v. LO-VACA GATHERING COMPANY, Respondent.
    No. B-4938.
    Supreme Court of Texas.
    Oct. 1, 1975.
    Rehearing Denied Nov. 26, 1975.
    Coan & Allen, Richard D. Coan, Stephen-ville, for petitioners.
    C. 0. McMillan, Stephenville, Joe A. Cohn, Jr., and F. Jerry Dorsey, Corpus Christi, for respondent.
   GREENHILL, Chief Justice.

Needing a pipeline right-of-way, Lo-Vaca Gathering Company, under its power of eminent domain, took a 13.5 acre strip across the land of Joe Spindor and wife. The Spindors were awarded $2,700 for the strip taken and $7,244.80 for damages to their adjacent land, herein called the remainder. A road used for laying the pipeline was built across a lake of the Spindors, and therein lies the problem. The trial court admitted certain photographic and testimonial evidence discussed below relating to damages to a portion of the remainder, the lake. The Court of Civil Appeals reversed the judgment of the trial court and ordered a new trial only as to the damages to the remainder. 514 S.W.2d 347. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

Prior to the construction of the pipeline through the farm, the Spindors maintained a lake covering 40 to 50 acres for irrigation and fishing purposes. The path of the pipeline intersected the lake about one-third the length of the lake away from its mouth where it was normally fed by a creek, and two-thirds the length from the dam at the opposite end. To enable what it regarded as proper construction of the pipeline on this course, Lo-Vaca filled in a dirt road across the lake. Subsequent heavy rains washed out the built-up road and spread dirt throughout the lake bottom. During Mr. Spindor’s testimony, his counsel introduced into evidence pictures of the lake that were taken some eight months after the date of taking. Counsel for Lo-Vaca objected that the pictures did not reflect the condition of the land on the date of taking. The trial judge admitted the pictures.

Then Spindor continued his testimony, presumably with reference to these photographs. He testified that during the negotiations with Lo-Vaca before the taking, he pointed out to the company that such a washout would occur. No further objections to Spindor’s testimony were made.

Later in the trial, Mr. Turner, the expert witness for the Spindors, testified to the amount of lake damage that he observed and to the cost of restoration. The major elements of his testimony were paraphrased by the Court of Civil Appeals in its opinion. 514 S.W.2d at 348-349. Turner made his observations both during and after construction of the pipeline. In essence, he testified to seeing the results of a dirt road built across a lake which subsequently was deluged with heavy rains, and he estimated the cost to remove the dirt washed into the lake in order to restore the lake to its prior condition.

The Court of Civil Appeals’ reversal of the trial court is based solely on the admission of the testimony of Mr. Turner. It held that Turner was testifying to damages caused by the pipeline construction. During the trial, Lo-Vaca had made the same objection; and counsel for Spindor replied that their predicate for Turner’s testimony had been established during the testimony of Spindor:

Spindor’s Counsel: We have the right and the testimony of Mr. Spindor who’s been on the stand was that they anticipated this danger when we went in there and they discussed it with Lo-Vaca and it was the type of thing that they knew was [sic] in advance and was going to happen and we’re not talking about — talking about damages.
The Court: It might be admissible on diminution, if any, of the remaining property after the taking. If it’s admissible at all, it’s for that reason. I will overrule your objection.

In response to a question of Turner of his opinion of the cost to restore the lake, Lo-Vaca’s counsel made the same objection as before, and Spindor’s counsel again replied:

We have the right — I have quoted the case two or three times on this before, that has to do with anything that affects the value of the land of the prospective buyers or tends to make it more or less valuable to a present owner. We can give evidence about that and the only way you can determine diminution of value or [sic] remainder is having somebody testify as to what the cost of restoring it back to its original state would be.

Neither Turner nor Spindor testified that the activities of Lo-Vaca in building the dirt road were negligent or unlawful. The case was tried on the theory that in attempting to do what was necessary, Lo-Vaca caused a diminution in the fair market value of the remainder of the Spindors’ land in a foreseeable manner.

Article 3265, § 1, allows damages for diminution in value of the remainder to those which accrue “by reason of the condemnation of the property, and its employment for the purpose for .which it is to be condemned.” The factors to be considered are those which would reasonably be given consideration in negotiations between a willing seller and a willing buyer. City of Pearland v. Alexander, 483 S.W.2d 244 (Tex.1972); City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954). Since the damage to the lake was actually foreseen and hence clearly foreseeable, a hypothetical willing buyer-willing seller would take that factor into consideration in negotiating for the purchase of that property.

The expert’s estimated cost to restore property is admissible in a condemnation trial to prove the probable diminution in fair market value of the remainder immediately after the taking, regardless of whether any actual damage occurs. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936). This estimate would go to the jury for their consideration in fixing the amount of foreseeable damages in the employment of the land for the purpose for which it was condemned. It makes little sense to say that an expert can testify as to restoration costs of a hypothetical filling of the lake with dirt but it is reversible error if he testifies as to costs after the lake has actually been filled with dirt. Even after the fact, Turner could only give an estimate of the cost based on the type of equipment needed and the probable number of days such work would take.

We hold that if the damages actually resulting to the remainder tract from the condemnor’s activities are of a nature that reasonably could have been foreseen and determined by the condemnee at the condemnation, then evidence of these damages is clearly relevant to a determination of the fair market value of the land; and therefore, such evidence is admissible at the condemnation proceeding. City of Pearland v. Alexander, 483 S.W.2d 244 (Tex.1972); City of La Grange v. Pieratt, 142 Tex. 23, 175 S.W.2d 243 (1943); State v. Brewer, 141 Tex. 1, 169 S.W.2d 468 (1943). The testimony of Mr. Spindor shows that the resulting damages actually were foreseen and discussed w.ith Lo-Vaca prior to the condemnation. Mr. Turner’s testimony is relevant to a determination of the remainder damage and, therefore, admissible at the condemnation proceeding.

Since only reasonably foreseeable damage to the remainder is at issue here, its determination is in no way affected by this Court’s decision in Alexander v. City of San Antonio, 468 S.W.2d 797 (Tex.1971), which deals with pre-condemnation trespass damage to the remainder. Likewise, Texas Electric Service Co. v. Campbell, 161 Tex. 77, 336 S.W.2d 742 (1960), urged by Lo-Vaca, is not persuasive because the damage incurred in that case resulted from uncon-templated, negligent misuse of the con-demnee’s remainder tract. There is no evidence here, as there was in Campbell, that would tend to prejudice the jury into the belief that Lo-Vaca would enjoy an unrestricted future right to entry and use of the remainder of the Spindors’ land.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the trial court is affirmed.

Dissenting opinion by REAVLEY, J., in which WALKER, J., joins.

Dissenting opinion by Justice STEAK-LEY, J.

STEAKLEY, Justice

(dissenting).

I respectfully dissent and can state my views quite briefly. This Court in G.C. & S.F. Ry. Co. v. Fuller, 63 Tex. 467 (1885), early established the fair market value criterion in the determination of severance damages; and, later, in St. Louis, A. & T. Ry. Co. v. Henderson, 86 Tex. 307, 24 S.W. 381 (1893), stated that all damages, present and prospective, that are the natural, necessary or reasonable incident of the improvement constitute the compensation which our Constitution requires to be made in advance. We concluded in the latter case that severance damages are those which would naturally or necessarily flow from the taking and proper construction and operation of the improvement; and that other damages caused to the balance of the tract which may be known with reasonable certainty would be included. We reaffirmed in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936), that where a part of a tract of land has been taken for a public use, damages to the remainder tract are to be determined by ascertaining the difference between its market value immediately before and after the appropriation, The willing-seller willing-buyer test of market value is to be applied and those factors are to be considered which would reasonably be given weight in negotiations between a seller and a buyer. City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954). See City of Pearland v. Alexander, 483 S.W.2d 244 (Tex.1972).

The date of taking is thus firmly established as the critical date. Indeed, the majority acknowledges the force of these precedents while at the same time, illogically and inconsistently, I think, now holds admissible post-taking or hindsight evidence at the instance of the condemnee to enhance severance damages. It is apparent, of course, that henceforth such evidence will be just as admissible under the auspices of the condemnor to reduce severance damages. It is just as apparent that these actual happenings after the date of taking could not be known to the fictional willing buyer and seller in arriving at reasonable market value in a sale on the date of taking. The market value at that time could only be influenced by what they then knew or could reasonably foresee. This would include damages to the remainder that would reasonably flow from the proper construction of the improvement. City of Pearland and Henderson, supra. This was sought to be shown here by the evidence establishing the necessity for the dirt road across the lake in the construction of the pipeline; and by the testimony of Spindor that the damages to the lake that would result therefrom was discussed with Lo-Vaca in the pre-taking negotiations. The post-taking evidence under review should be ruled inadmissible under our established precedents.

I would affirm the reversal and remand ordered by the Court of Civil Appeals.

REAVLEY, Justice

(dissenting).

The Court holds that evidence of actual damage (including cost of repair) to the remainder of the owner’s land, which occurs during condemnor’s construction, is admissible in the condemnation trial to prove the landowner’s recoverable damages. That will not confine the landowner to the difference in the market value immediately before and after the taking by the con-demnor. What was reasonably foreseeable to prospective buyers of Spindor’s lake and land on the date of taking was one picture; the actual damage suffered some nine months later is a different one.

The result in this case seems to be fair enough to these parties. My concern is with our change of the rule without dealing with the problems of precedent and the trial of future cases. If we intend to allow the landowner to recover all damages that he suffers because of the condemnor’s taking and construction — right up to the date of the trial of the condemnation case, we should say so. Such a rule should be justified against the statutes, particularly Art. 3265. It seems to me that we would then be prescribing one rule of damages for the commissioners and a different rule for the trial after appeal of the commissioners’ award.

Surely our rule will work for the con-demnor when events go his way. If construction is completed by the time of the trial and if there has been no rain or harm to the lake, that fact will now be admissible as the answer to the landowner’s proof that the market value of his land on the date of taking allowed little value for his lake because of foreseen results of construction.

What do we do about the neighbor-con-demnee down the pipeline who may have his case come to trial after Spindor’s lake is full of dirt but before the construction crew have reached the neighbor and his lake? Will he be allowed to prove what is “foreseeable” in the sense of the writing by the majority, or will we restrict him to the Carpenter rule and his market value loss on the date of the taking?

If we were dealing here with suits for compensation of the landowner for damages suffered during construction, we might well rewrite a number of our present rules. Evidence of actual damage during construction, either caused by negligent or non-negligent conduct, might be made admissible in those suits. The present case is a condemnation case, however, and under the statute and the rule that fixes the landowner’s damage at the change in market value on the date of taking, I must agree with the decision of the Court of Civil Appeals.

WALKER, J., joins in this dissent.

      . Q. Now, let me ask you this: At the time you were negotiating with Lo-Vaca Gathering Company back there originally, did you discuss with them how you wanted or what you felt like would be the way to go across this lake down there?
      A. Yes, sir.
      Q. All right, sir. What was the proposal that you made about how to put the easement across the lake?
      A. Well, they said a hundred foot would do it. So it was about fifteen feet high there, say 15 to 20, and there just wasn’t nobody could cross there, see? So they just taken some dozers in there and just shoved them a way across it, made them a road, just built it across.
      Well, it came a big, heavy rain. So I asked them to put something in there. Well, that didn’t work and all that washed away and part of this dirt that — it hit, it disappeared, went into the lake on account of heavy water came in there.
      Q. Let me ask you this: At the time, though, back when you were negotiating with them originally, had you been talking to them about that?
      A. Yes, sir.
      Q. You felt like that’s what was going to happen when they started across there?
      A. Yes, sir.
      Q. Did you discuss the problems with your spring water?
      A. Yes, sir.
      Q. And the problem they would have crossing that with their equipment, crossing that end of the lake?
      A. Yes, sir.
      Q. All right, and would you state whether or not after, in fact, the construction started, that what you had advised them would happen actually happened out there?
      A. Sure did.

      . Vernon’s Texas Civil Statutes Annotated. Emphasis is added here.


author: PER CURIAM

text:
    FIRST NATIONAL BANK OF GRAND PRAIRIE, Texas, Petitioner, v. LONE STAR LIFE INSURANCE COMPANY, Respondent.
    No. B-5389.
    Supreme Court of Texas.
    Oct. 15, 1975.
    Rehearing Denied Nov. 12,1975.

      Haynes & Boone, Donald C. Templin, Dallas, for petitioner.
    Jenkens & Gilchrist, William D. Sims, Jr., Dallas, for respondent.
   PER CURIAM

The application of First National Bank of Grand Prairie for writ of error is refused, no reversible error. Tex.Civ.App., 524 S.W.2d 525. In taking such action, we do not approve the holding that Chapter 9 of the Texas Business and Commerce Code controls the right of a bank to assert a set-off against the funds of a depositor. Section 9.104(9) of the Code excludes “any right of set-off” from the application of Chapter 9.


author: ROBERTS, Judge.

text:
    Ex parte Ralph Leland REDLINE.
    No. 50864.
    Court of Criminal Appeals of Texas.
    Oct. 22, 1975.
    Rehearing Denied Nov. 19, 1975.
    Benny J. Lowe, Odessa, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a habeas corpus action instituted for the purpose of having petitioner’s bail reduced. Petitioner is currently incarcerated in the Ector County Jail, under indictment for murder, and unable to secure his release on bail which has been set at $75,000.

Petitioner’s bail was originally set at $500,000 but was reduced to the present figure after petitioner’s first application for habeas corpus relief. From the record, it appears that petitioner’s attorney agreed to the $75,000 setting, believing he would have no trouble in obtaining a surety bond in that amount. Subsequently, he had serious troubles in this regard and instituted this, petitioner’s second application for writ of habeas corpus, apparently attacking the bail bond procedures in Ector County and the refusal of the sheriff there to accept any bond proffered on petitioner’s behalf. We need not consider these questions because petitioner has made out a simple case of excessive bail.

Petitioner’s three grounds of error can be considered together as complaining that the trial court abused his discretion in refusing to reduce petitioner’s $75,000 bail. Consideration of this question is guided solely by Art. 17.15, V.A.C.C.P., which makes it clear that the question of bail is a matter within the trial judge’s discretion. Art. 17.15 also suggests the following guidelines for fixing amount of bail:

“1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
“2. The power to require bail is not to be so used as to make it an instrument of oppression.
“3. The nature of the offense and the circumstances under which it was committed are to be considered.
“4. The ability to make bail is to be regarded, and proof may be taken upon this point.”

There was evidence at petitioner’s habeas corpus hearing that he had made at least two attempts to present the sheriff with a bail bond for the full $75,000. In one such attempt, the sheriff apparently rejected petitioner’s attorney’s proffered bond because he was unsatisfied with the sufficiency of the security. When petitioner’s attorney then presented another bond with another attorney as an additional surety, the proffered bond was again rejected because the sureties were only severally liable under Art. 17.23, V.A.C.C.P., and neither had security sufficient to satisfy the sheriff. The evidence showed that the district attorney would have been satisfied with a $50,000 cash bond, but that petitioner had only been able to accumulate $12,500. Although not controlling in this case, petitioner has thus demonstrated his inability to make bond. Ex parte Sierra, 514 S.W.2d 760 (Tex.Cr. App.1974).

The nature and circumstances of the offense are also relevant in setting bail. Petitioner stands indicted for murder, a first degree felony, punishable by imprisonment from five to ninety-nine years or life. The transcript of petitioner’s examining trial, made a part of this record, reveals a circumstantial case, with no eye witnesses. Petitioner has never before been convicted of a felony in this or any other state. Prior to the alleged offense, he had lived in Ector County four and one-half years and was self-employed as a consulting engineer and geologist. He testified that he had at least four consulting jobs available to him in the event of his release, all in the Permian Basin area.

In the case of Ex parte Josey, 500 S.W.2d 148 (Tex.Cr.App.1973), petitioner therein was under indictment for murder and assault with intent to murder, and his bail in the two cases totaled $100,000. The evidence from Josey’s examining trial was stronger than the evidence against petitioner here. Josey had likewise attempted and failed to make bail. This Court reduced Josey⅛ bail to $10,000 in each of the two cases against him.

From an examination of the record before us, it appears that petitioner is certainly unable to make bail by himself, and that the attempts of others to post a bond for him have been rejected by the sheriff. The evidence of petitioner’s guilt at the present time is circumstantial, and the likelihood of his jumping bail seems minimal. Under these circumstances, the $75,000 bail set is excessive. See and compare Ex parte Guess, 508 S.W.2d 640 (Tex.Cr.App.1974); Ex parte Thompson, 508 S.W.2d 624 (Tex. Cr.App.1974); Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Cr.App.1974); Ex parte Skinner, 496 S.W.2d 633 (Tex.Cr.App.1973), and Ancira v. State, 494 S.W.2d 184 (Tex.Cr.App.1973). In view of the entire record, we hold that the trial court abused his discretion in failing to reduce petitioner’s bail.

Therefore, petitioner is admitted to bail in the amount of $20,000 in this cause.

It is so ordered.

DOUGLAS, J., not participating.


author: BROWN, Commissioner.

text:
    Kenneth Earl SWINNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 50340.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1975.

      Malcolm Dade (Court-Appointed), Melvin C. Bruder (Court-Appointed on appeal), Dallas, for appellant.
    Henry Wade, Dist. Atty., John E. Rapier, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant was convicted by a jury of assault with intent to commit rape. The jury assessed punishment at 75 years in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. The record reflects that late in the afternoon of February 10, 1969 a man identified as the appellant entered the complainant’s apartment, assaulted the complaining witness and then attempted to rape her. After leaving the complaining witness’ apartment the appellant was seen by two other residents of the same apartment complex. One, Jim Brownell, gave chase and obtained a description of the car in which the assailant left the scene. He also noted the license number and gave it to the police.

On February 11, 1969, Dallas Police Officer R. M. Sims made a check of the license number reported to the police. This check showed the car in question to be registered to Bobbie Swinney, the wife of the appellant herein. After securing an arrest warrant for an unnamed white male, Sims and his partner went to the home of the appellant. At about the time the officers arrived the appellant drove up in his wife’s car. The appellant was placed under arrest by the officers after he identified himself to them. At this point the appellant’s wife came out of the house and approached the officers. The appellant was placed in the squad car with one of the officers. Officer Sims asked the appellant’s wife for permission to search the house. Appellant’s wife consented and escorted the officer through the house. Sims then asked the appellant’s wife for permission to search her car in which the appellant had driven to the house before his arrest. Appellant’s wife consented to the search. The search of the car revealed a pair of gloves that were introduced into evidence at the appellant’s trial.

Appellant’s first ground of error is that the trial court erred in admitting into evidence the gloves that were found in the car that he had been driving prior to his arrest.

Appellant contends in his original brief and in his second supplemental brief that the consent given by his wife was ineffective to waive his Fourth Amendment rights. He contends that the solicitation of consent to search the car was a subterfuge designed to by-pass the appellant’s right to refuse permission to search without a warrant being obtained. During the oral argument of this case and in his second supplemental brief appellant makes clear that his contention does not turn on the husband-wife relationship.

It is clearly established in Texas that third parties have authority to consent to a search when they have equal control over and equal use of the premises being searched. Nelson v. State, 511 S.W.2d 18 (Tex.Cr.App.1974); Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974); Williams v. State, 502 S.W.2d 130 (Tex.Cr.App.1973); Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973); Jemmerson v. State, 482 S.W.2d 201 (Tex.Cr.App.1972); Potter v. State, 481 S.W.2d 101 (Tex.Cr.App.1972); Sorensen v. State, 478 S.W.2d 532 (Tex.Cr.App.1972); Powers v. State, 459 S.W.2d 847 (Tex.Cr.App.1970); Jefferson v. State, 452 S.W.2d 462 (Tex.Cr.App.1970).

The appellant’s contention seems to be grounded on the proposition that the wife cannot give a valid consent to search an area over which she has at least equal control when the husband is present. Appellant cites no cases directly supporting this proposition. The ease of Paprskar v. State, 484 S.W.2d 731 (Tex.Cr.App.1972) is cited by the appellant for inferentially supporting his position. This Court in Paprskar v. State, supra, expressly declined to pass on this point since the Court found that the wife’s consent was coerced.

In Sorensen v. State, supra, this Court upheld a search for marihuana consented to by the defendant’s parents when he was present, saying:

“Appellant had no ‘reasonable expectation of privacy’ in this particular ‘area.’ His mother had a right to be where the marihuana was found, she could consent to a search of that area, and her consent would vitiate the need for any search warrant and would be binding upon anyone having rights in that ‘area.’ See Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).”

See also United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

The appellant also argues that his wife’s consent is not shown to have been freely given. Whether the appellant’s wife freely and voluntarily consented to the search must be determined from the record as a whole. The record reflects that when the appellant’s wife was asked if the search was conducted with her full consent, permission and authority, she answered, “Yes, I didn’t have anything to hide from them.” We have examined the record and find that it supports the contention that consent to search was freely and voluntarily given. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

Appellant’s first ground of error is overruled.

Appellant’s second ground of error is that the trial court improperly placed the burden of proof in its charge to the jury concerning the alibi defense.

The court instructed the jury on the alibi defense as follows:

“You are instructed that a defense of alibi is that, if an offense was committed, as alleged, that the defendant was, at the time of the commission thereof, if any, at another and different place from that at which such offense was committed, if it was, and therefore was not and could not have been the person who committed the same, if any.
“Now, if the evidence raises in your mind a reasonable doubt as to the presence of the defendant at the place where the offense was committed, if any was committed, at the time of the commission thereof, if any, you will find the defendant not guilty.”

The charge given in this cause is substantially the same as that found in 2 Willson’s, Texas Criminal Forms, Sec. 3569 (W. Morrison & T. Blackwell Eds. 1966), 1 Branch’s Ann. Penal Code (2d Ed.), Sec. 74.5 (1956), and Texas Criminal Pattern Jury Charges, CPJC 0.03 (1975). The charge informs the jury that if the evidence raises a reasonable doubt as to the appellant’s presence at the place where the alleged crime took place they should find the appellant not guilty.

Appellant’s second ground of error is overruled.

In a supplemental brief filed on May 21, 1975, appellant raises for the first time three supplemental grounds of error. Appellant first contends that the trial court should have “sua sponte” granted a motion for new trial when it discovered that the record on appeal was inaccurate. The trial court has held two subsequent hearings in this case to resolve questions relating to the accuracy of the record on appeal. The records of these hearings are before us and we have examined them along with the trial court’s findings of fact and conclusions of law. The record in this case has been corrected, and, therefore, any original complaint is now moot.

In his second supplemental ground of error the appellant contends that the prosecution committed improper jury argument during the punishment stage of the trial. At the hearing to correct the record the court reporter testified that no arguments were made during the punishment stage of the trial. The prosecutor also testified at the hearing to correct the record and stated that he waived jury argument. The appellant took the stand and contended that the improper argument was, in fact, made to the jury. The corrected record contains no jury arguments. Nothing is presented for review.

Appellant’s third supplemental ground of error complains of the improper cross-examination of the appellant’s wife. The complained of questions are not in the record before us. The only indication that the complained of question was even asked is the appellant’s testimony at the hearing to correct the record. The trial court found that the record was, in fact, complete and that the alleged question was not, in fact, asked. The trial court made the following statement in its findings of fact: “The Court knows of its own knowledge that this testimony of Petitioner is untrue. There are no missing pages and if the prosecution had attempted the improper impeachment Petitioner alleges this Court would certainly have sustained an objection.” Appellant’s third supplemental ground of error is totally without merit.

Appellant has also filed a pro se supplemental brief which we have examined and find to be repetitious of the first supplemental brief filed by appellant’s counsel.

It must be noted that a delay of over five years has taken place since the time the appellant was tried. However, the record indicates that the greater part of this delay has been the result of the appellant’s actions which appear to have been deliberately calculated to prevent an orderly appeal of this case.

The judgment is affirmed.

Opinion approved by the Court.

DOUGLAS, J., not participating.


author: DAVIS, Commissioner. DOUGLAS, Judge

text:
    William A. ARLINE, Appellant, v. The STATE of Texas, Appellee.
    No. 50546.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1975.

      Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for the offense of robbery by assault. The punishment, enhanced under the provisions of Art. 63, V.A.P.C., life.

At the outset, we are confronted with a fundamentally defective indictment. The pertinent part of the indictment charging the primary offense alleged that appellant on or about November 28, 1973, “did then and there unlawfully assault Mark Bossett, hereinafter styled the Complainant, and did by the assault, by violence, and by putting the Complainant in fear of life and bodily injury, fraudulently and against the Complainant’s will, take from the person and possession of the Complainant two coats, one pair of boots, one tape recorder, and one clock radio with the intent to deprive the Complainant of the value of the property and to appropriate it to the Defendant’s use. . . . ”

In Lucero v. State, Tex.Cr.App., 502 S.W.2d 128, it was held that an indictment for robbery under Art. 1408, V.A.P.C., was fatally defective where it failed to allege other than by inference to whom the property allegedly belonged. See Bouie v. State, Tex.Cr.App., 528 S.W.2d 587 (1975). The pertinent part of the indictment in Lucero alleged that on or about March 15, 1972, Tony Lucero “did then and there unlawfully make an assault in and upon Soh-rab Azima, hereinafter called Complainant, and did then and there by the said assault, and by violence and by putting the said Complainant in fear of life and bodily injury, and by then and there using and exhibiting a firearm, to-wit: a pistol, fraudulently, and without the consent of the said Complainant take from the person and possession of the said Complainant certain property, to-wit: lawful money of the United States of America with the intent to deprive the said Complainant of the same, and to appropriate it to the use and benefit of the said Defendant. . .

An examination of the indictment in the instant case reveals that, like the indictment in Lucero v. State, supra, it does not aver to whom the property allegedly taken belonged. Such deficiency renders the indictment fundamentally defective.

The judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the Court.

DOUGLAS, Judge

(dissenting).

The indictment has been held fundamentally defective because ownership was not alleged. Ownership was not an element of the offense of robbery under Article 1408, V.A.P.C. (1925), which provides that robbery is committed by taking property from the possession of the injured person. Possession was alleged in this. See the dissenting opinion in Bouie v. State, Tex.Cr.App., 528 S.W.2d 587 (1975).

The judgment should be affirmed.