author: FONES, Justice.

text:
    SOUTHERN INDUSTRIAL BANKING CORP., Petitioner, v. DELTA PROPERTIES, INC., Respondent.
    Supreme Court of Tennessee.
    Nov. 1, 1976.

      Merle Johnson, Knoxville, for petitioner.
    William D. Vines, III, Butler, Vines, Babb & Threadgill, Knoxville, for respondent.
   OPINION

FONES, Justice.

This is a suit by a real estate company against a commercial loan institution for damages arising out of the alleged breach of an oral agreement by the loan company to lend the real estate company $20,000 on a land purchase.

A jury verdict for plaintiff in the sum of $10,100 was approved by the trial judge and affirmed by the Court of Appeals. We granted the writ of certiorari because of our concern about the issues of the statute of frauds and promissory estoppel. We hold that the agreement is within section four of the statute and do not reach the issue of promissory estoppel.

I.

Plaintiff below, respondent here, was the high bidder on a tract of land sold through the Knox County Probate Court on April 4, 1973. Terms of the sale required ten (10%) percent of the purchase price of $25,500 to be paid on the day of the auction and the balance due within ten (10) days. After complying with the ten (10%) percent down provision, plaintiff went to defendant to obtain a loan for the balance of the purchase price, to be secured by a trust deed on the land. Defendant would not process plaintiff’s loan application until another loan sought by the plaintiff was processed and closed. This was not accomplished until late May, 1973. On or about June 13, 1973, the defendant agreed to loan the plaintiff $20,000. The terms obligated the plaintiff to pay four (4) discount points as well as seven (7%) percent add-on interest over a five (5) year period to be secured by the property bid upon at the court sale, but later a misunderstanding arose as to the acreage to be included. Defendant prepared all of the documents required to close the loan to plaintiff and scheduled the closing for June 28, 1973. This date was agreed upon on June 22, when Lakins, President of plaintiff corporation, advised Mitchell, Branch Manager of defendant corporation, that he would be out-of-town until June 28. There were direct contradictions in the testimony of Lakins and Mitchell as to what events actually occurred on June 28, 29 and 30, 1973, why the loan was not closed, and the amount of acreage to be given as security for the loan. On Monday, July 2, 1973, plaintiff was advised either to pay the balance of the purchase price into court or execute an assignment of its rights as successful bidder to a designated purchaser, that date, under threat of contempt. Plaintiff executed the assignment and brought this suit.

Plaintiff’s theory was that defendant’s refusal to close the loan was without just cause being motivated by a plan to direct into the hands of others, a profitable transaction. Defendant denied any improper motivation and asserted several grounds in justification of its refusal to close.

II.

The threshold legal issue asserted by defendant is that the oral agreement to lend plaintiff $20,000 on the security of a deed of trust on real estate falls within the statute of frauds, T.C.A. § 23-201(4). Defendant relies upon Lambert v. Home Federal Savings and Loan Association, 481 S.W.2d 770 (Tenn.1972), wherein the Court held that the promise to convey to another a lien or charge upon land, as security for a-loan, is equivalent to a promise to sell an interest in land, and is therefore governed by section four of the statute of frauds. The instant case falls squarely within the ambit of Lambert and must be treated as a contract for the sale of land, in our determination of the application of the statute of frauds to the agreement upon which plaintiff predicated his cause of action.

Plaintiff contends that sufficient memorandum of the loan agreement was introduced at the trial or was shown to have existed, to satisfy the statutory requirement that, “[s]ome memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized.” T.C.A. § 23-201(5).

At the time of the trial the only documents available were two (2) checks totaling $20,000 dated June 28, 1973, that had been signed by Mitchell, authorized by defendant, one payable to plaintiff in the sum of $19,966.70 and one payable to the Knox County Register of Deeds in the sum of $33.30. It was first stipulated and later testified by Mitchell that defendant prepared for a June 28,1973, loan and sale closing, a note, deed of trust, disclosure statement, insurance policy and other documents necessary to complete the loan transaction with plaintiff. All of the papers except the checks were destroyed after the loan did not close, apparently pursuant to routine company procedures. Lakins testified that no written loan application was made or entered into.

The trial judge was of the opinion that the two (2) checks, were sufficient memoranda of the promise to make the loan. The Court of Appeals agreed, but also held the statute of frauds inapplicable, “under the peculiar facts of this case.” The doctrine of promissory estoppel or equitable estoppel was held by the intermediate court to preclude defendant from asserting the defense of the statute.

In Lambert, Mr. Justice Humphreys writing for the Court, said:

“The rule by which the thirteen instruments exhibited to the bill as memoranda satisfying the Statute of Frauds must be tested is well stated thusly: ‘The general rule is that the memorandum, in order to satisfy the statute, must contain the essential terms of the contract, expressed with such certainty that they may be understood from the memorandum itself or some other writing to which it refers or with which it is connected, without resorting to parol evidence. A memorandum disclosing merely that a contract had been made, without showing what the contract is, is not sufficient to satisfy the requirement of the Statute of Frauds that there be a memorandum in writing of the contract.’ 49 Am.Jur. Statute of Frauds, §§ 353, 363-364. Lee v. Cherry, 85 Tenn. 707, 4 S.W. 835, 4 Am.St.Rep. 800 (1887); Otis v. Payne, 86 Tenn. 663, 8 S.W. 848 (1888), are to the same effect as the above.” 481 S.W.2d at 773.

The two (2) checks obviously fail to satisfy that test.

The deed of trust by which plaintiff would have conveyed an interest in real property is the critical instrument, if the memoranda gap is to be bridged. Also, under our controlling decisions, plaintiff, as owner of the interest in the real property to be conveyed, is the party to be charged and its signature on the appropriate memorandum is indispensable.

In Ashley and Gibbs v. Preston, 162 Tenn. 540, 39 S.W.2d 279 (1931), Mr. Justice McKinney writing for the Court said:

“The reason given by this court for so construing the statute is thus stated in Whitby v. Whitby, 36 Tenn. (4 Sneed), 473, 478:
‘It obviously was designed to protect the owners of land from being drawn into hasty or inconsiderate agreements in relation to what is deemed the more valuable and important species of property, and to guard against misunderstanding as to the nature and extent of such agreements; and hence the provision that the owner should not be divested of his title except by evidence in writing, signed by himself. This in substance is the letter and spirit of the statute.’ ” 162 Tenn. at 544, 545, 39 S.W.2d at 280.

We continue to adhere to the owner— vendor application of the party to be charged rule, in real property cases. To do otherwise, in our opinion, opens the door to misunderstanding as to the nature and extent of such agreements. This case is a classic example as will hereinafter appear.

III.

Lakins’ version of the oral loan commitment differed from Mitchell’s. The tract of land upon which plaintiff was high bidder at the court sale consisted of 4.04 acres on Old Maynardsville Road. Lakins testified that plaintiff wanted to build an office for itself on .37 acres in the northeast portion of the tract, and desired to exclude that land from the lien of the deed of trust to defendant, so that another loan might be obtained for said purpose. Plaintiff employed a land surveyor to carve that lot out of the 4.04 acre tract. A plat of survey of the entire 4.04 acres with the dimensions of the .37 acre lot, shown as fronting on Old Maynardsville Road, 103.36 feet to a depth of 173.8 feet on the west side and 149.6 feet on the east side was introduced as an exhibit. Lakins testified that he took that plat to Mitchell on June 11, 1973, and, “. made application on the 3.67 acres.” Mitchell agreed that Lakins asked that the .37 acre lot be excluded from the lien of the deed of trust, but denied defendant agreed at any time, to do so. His version of the dispute follows:

Q. When did he first request this?
A. I don’t remember.
Q. Was it the first time he talked to you about this property?
A. No sir.
Q. Was it in the month of May or the month of June?
A. It was in the month of June. I don’t remember exactly the time he asked for it.
Q. What did you say?
A. Well, from my common knowledge I knew that we probably couldn’t take a lien on just a portion of the property. I did contact my supervisor and the decision was that we would not take a loan on part of the property, but the whole property is the only way we’d make it.
Q. Did you ever tell Mr. Lakins that you would make him a loan on anything less than the entire 4.04 acres?
A. No sir.

Lakins testified that he called Mitchell early on the morning of June 28, 1973, and was told, for the first time, that defendant would not make the loan on the security of 3.67 acres but require a lien on 4.04 acres.

While neither the stipulation nor Mitchell’s testimony about the documentation prepared for a June 28, closing describes the contents of the trust deed, the foregoing testimony leaves the strong inference that, as prepared, the description embraced 4.04 acres. It follows, that even if the documentation that came into existence briefly unseen, undelivered and unsigned by plaintiff could be considered as memoranda of the transaction, and our party to be charged rule abandoned, plaintiff is in the untenable position of relying upon memo-randa that does not support its version of the oral contract and must rely upon parol evidence to supply the description of the realty to be conveyed as security.

Furthermore, the disputed 'issue of whether the security for the loan was to be 4.04 acres or 3.67 acres illustrates the validity of the purpose of the statute of frauds, to avoid the inevitable duel of different versions of the spoken word, unsettling and legally intolerable where real property is involved.

Defendant’s assignment of error relying upon the statute of frauds is sustained.

The reasoning and authorities relied upon by plaintiff and the Court of Appeals to establish promissory estoppel and take this case out of the statute of frauds are inappo-site.

The judgment of the Court of Appeals is reversed and the case dismissed. Costs are adjudged against plaintiff.

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


source: Caselaw Access Project

author: COOPER, Chief Justice.

license: Public Domain

text:
    ALUMINUM COMPANY OF AMERICA, Appellant, v. Ronald C. BAKER, Appellee.
    Supreme Court of Tennessee.
    Nov. 1, 1976.

      J. C. Gamble, M. H. Gamble, Jr., Goddard & Gamble, Maryville, for appellant.
    Rom Meares, Joseph H. Nicholson, Mary-ville, for appellee.
   OPINION

COOPER, Chief Justice.

The Aluminum Company of America (ALCOA) has appealed from a decree of the Law and Equity Court of Blount County awarding Ronald C. Baker workmen’s compensation benefits for disability resulting from injuries he sustained in a fall on a company owned and maintained parking lot. No issue is made on appeal as to the nature and extent of appellee’s injuries, nor as to the resulting disability. The principal contention of appellant is that appellee’s injuries did not arise out of and in the course of his employment. Appellant also contends that appellee did not give the required notice of injury.

Appellee was employed at the North Plant of ALCOA as a “lay-out man” in the Fabricating Machine Shop. The shop is near the exit gate on the north side of the plant. On the day of the accident, appellee worked the day shift, clocked out, bathed in the bath house ALCOA furnishes its employees, and then left the plant by the guard gate leading to the north parking lot where he had left his automobile. While walking through the parking lot toward his automobile, appellee stepped in a hole and fell, injuring his left knee.

Adopting a more strict approach to an employer’s liability than the vast majority of courts, this court consistently has limited recovery of workmen’s compensation benefits for injuries sustained by an employee while on his way to or from his work station to factual situations showing (1) the process of going to or from work is furnished by the employer or is required by the employer to be done in a certain manner or over a certain way, and (2) this submits the employee to a definite special hazard. See Potts v. Heil-Quaker Corporation, Tenn., 482 S.W.2d 135 (1972); McKinney v. Hardwick Clothes, Inc., 217 Tenn. 457, 398 S.W.2d 265 (1966); Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386 (1955); Smith v. Camel Manufacturing Company, 192 Tenn. 670, 241 S.W.2d 771 (1951).

The questions to be answered in this case then are: First, was the way appellee used to go from his work station to his automobile, a route required by appellant so as to make it a part of the premises of appellant. Second, if so, did the required route submit the employee to a definite special hazard. In answering these questions, it should be noted that “premises” of the appellant includes the part of appellant’s property which the appellee is required to use for ingress and egress. Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386 (1955). It should also be noted that:

“The ‘required route’ rule is not so inflexible as to allow an employer to designate exact geographic limitations to a particular route in order to escape liability for hazards existing a few feet on either side of the given route. Nor is it intended to allow an employer to avoid liability by granting any employee discretion of movement through an area restricted by boundaries. The mere fact the employee had a choice of path within a reasonably defined area, a variance of which may or may not subject him to ‘special hazards’ is insufficient to take him out of the ‘required route’ rule.” Potts v. Heil-Quaker Corporation, supra at 138.

ALCOA’s North Plant, where appellee works, is a large facility lying between Cu-sick Road and Hunt Road in Alcoa. Employees of the company are not required to come to work in any special manner or by a designated form of transportation. While various modes of transportation are used, the majority of ALCOA’s employees drive their personal automobiles to the plant and park in one of two company owned and maintained parking lots, as there is no public parking space available closer than two miles on the Cusick Road approach to the plant and one mile on the Hunt Road approach. But, whatever the method of transportation used by an employee to get to the plant, he has to enter over one of two private roads owned and maintained by ALCOA. The private road leading to the north parking lot, which is the one used by employees of the Fabricating Machine Shop, is one-eighth of a mile long and is fenced throughout its length. Each of the private roads terminates in a fenced parking lot provided by ALCOA for hourly paid employees, with spaces unassigned except for those designated for use of visitors to the plant and for use by buses. There are two gates in the fences surrounding the parking lots. The first gate permits entry into the parking lot. The second, which is opposite the entry gate, is a “guard” gate through which everyone entering the plant must pass.

The record further shows that, prior to Mr. Baker’s fall, employees of the Fabricating Machine Shop filed formal grievances against the management of ALCOA in an effort to have ALCOA make repairs to the surface of the parking lot and the approach road and that ALCOA answered that “smoothing, with grader, of the graveled parking area and patching of the holes in the black-topped entrance road [were] planned for the near future.” There is nothing in the record to indicate that the repairs ever were made to the parking lot.

We think the plant location and the concomitant unavailability of public parking areas for ALCOA’s employees, the fact that ALCOA built and maintains parking lots for its employees, the location of the parking lots, the restricted access to the parking lots, and the fact that an employee has to pass through the parking lots to gain access to the plant through the guard gate, has the practical effect of making the parking lots a part of the premises of ALCOA which the employees are required to use for ingress and egress. Further, we think the evidence supports the conclusion of the trial judge that the use of the north parking lot subjected appellee to a special hazard known to ALCOA, the very hazard that caused appellee’s fall.

On the remaining issue, the issue of notice, it is undisputed in the record that within minutes of his fall, appellee called the ALCOA North Plant medical facility and reported to the nurse on duty that as he left the plant he had injured his left knee in a fall on the north parking lot and was being treated for his injuries by Dr. Peterson. This information was entered by the nurse in the Injury and Illness Record kept by ALCOA on appellee. Later, ALCOA denied appellee’s claim for workmen’s compensation benefits, but did so on the basis that appellee’s accident was not covered under the Workmen’s Compensation Act, not on the basis that appellee had failed to give the required notice of injury.

We agree with the trial judge that the above “was sufficient notice to the company of the injury so as not to deprive [appellee] of recovery,” especially where, as in this case, there is no claim that the giving of oral notice, rather than written notice, prejudiced ALCOA. Cf. R. W. Hartwell Motor Company v. Hickerson, 160 Tenn. 513, 26 S.W.2d 153 (1930).

The decree of the trial court is affirmed. Costs incident to the appeal are adjudged against the Aluminum Company of America and its surety.

FONES, HENRY, BROCK and HARBI-SON, JJ., concur.


author: CARNEY, Presiding Judge.

text:
    CINCINNATI INSURANCE COMPANY, Plaintiff-Appellant, v. SHELBY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    May 15, 1975.
    Certiorari Denied by Supreme Court Sept. 22, 1975.
    Morton, Lewis, King & Jones, Knoxville, for plaintiff-appellant, Cincinnati Ins. Co.
    Jonathan H. Burnett, Dalton L. Townsend, and Hodges, Doughty & Carson, Knoxville, for defendant-appellee, Shelby Mut. Ins. Co.
    John W. Baker, Jr., W. Edward Parrott, Poore, Cox, Baker, McAuley, Ray & Byrne, Knoxville, for defendant-appellee, Jack Hanna, d/b/a Pet Kingdom.
   CARNEY, Presiding Judge.

The Plaintiff-Appellant, Cincinnati Insurance Company, brought suit for declaratory judgment to determine which contract or contracts of liability insurance afforded coverage to John B. Hanna as against the tort claim for injuries to four-year-old Matthew M. Ramsbottom who inserted his arm through a wire mesh fence or cage at Hanna’s home near Knoxville on July 22, 1972. The child’s arm was torn from his body by a pregnant lioness owned by Hanna. The Chancellor exonerated from liability the Defendant Shelby Mutual Insurance Company which held a homeowners’ policy. He held that the Plaintiff Cincinnati Insurance Company had sole coverage of the Defendant John B. Hanna, d/b/a Pet Kingdom. Cincinnati has appealed and assigned error.

The Plaintiff contends, (1) that since the Defendant John B. Hanna was keeping the lioness at his personal residence, it was not “conduct of a business” within the meaning and coverage of Cincinnati’s liability policy; and (2) that if the Court finds that Cincinnati does have coverage, then the Defendant Shelby Mutual also had coverage under its homeowners’ policy and the loss should be prorated.

Pending the hearing in the Chancery Court, the tort litigation was settled by a judgment for $100,000 in favor of the minor, Matthew M. Ramsbottom, against the Defendant John B. Hanna, d/b/a Pet Kingdom.

The Defendant John B. Hanna, aged 27 and living in Albany, Georgia, is now employed as Director of Wildlife for ABC Television Scenic Attractions. He is a native of Knox County, Tennessee, and began working with animals at the age of 12. He worked with and studied animals in high school and in college. He returned to Knoxville in 1969 where he worked a few months for a pet shop known as the Animal Farm. Shortly thereafter on December 6, 1969, he opened the Pet Kingdom located on Kingston Pike in Knox County west of Knoxville, Tennessee. The main source of business at the Pet Kingdom was boarding and grooming of animals, the selling of pet supplies, and the sale of tropical fish, monkeys, boa constrictors, and puppies and rabbits at Easter time.

The lioness, Daisy, was purchased by Defendant Hanna as a small cub on July 18, 1970. She weighed only 12 pounds. She was housed at Mr. Hanna’s home and bottle fed for several months. During this time she rode around with him in his automobile a great deal. He built a cage for her at Pet Kingdom and she became housed at Pet Kingdom. Daisy became a part of the business attraction and advertisement. Her cost and maintenance was charged as business expenses. In April, 1972, Daisy was taken from Pet Kingdom to the Knoxville Zoo to be bred. After being bred, she was taken to Defendant Hanna’s home on Cedar Bluff Road in Knox County where an enclosure was also built to cage her. The cost of building this case was deducted by Mr. Hanna as a business expense on his income tax return.

Defendant Hanna intended to raise cubs and to start a pride of lions. He had no intention of selling Daisy and still owns Daisy though she is now housed at the Knoxville Zoo as a matter of accommodation' to him. Her first cubs were born in August, 1972, but some had been given away by Mr. Hanna at the time of the trial. Defendant Hanna was very much interested in lions and had started writing a book on lions and wanted the cubs to be born at his home where he could observe her and the cubs regularly and make notes in detail about the birth and growth of the cubs, etc. At Mr. Hanna’s home there were also some water buffaloes, monkeys, leopards, ocelots, wolves, and llamas.

At the time Defendant Hanna applied for liability insurance coverage with Cincinnati Insurance Company on Pet Kingdom,, he had a small zoo located immediately behind the Pet Kingdom premises in which llamas, sheep and goats were being kept. The lioness, Daisy, was also located at the Pet Kingdom. Sometime about July 1, 1971, Cincinnati Insurance Company, through its local agent, Powell Insurors, of Knoxville issued a two months’ binder to the Defendant Hanna, d/b/a Pet Kingdom. During the two-months’ period a representative of Cincinnati Insurance Company went upon the premises, made an inspection, and agreed to provide permanent liability coverage on condition that the zoo be closed. Hanna agreed with the Cincinnati agent that the animals would be moved from the zoo to his home and that within a period of less than a year the lioness, Daisy, would also be moved from the Pet Kingdom to Hanna’s residence.

The representative, a safety engineer named Pulliam, recommended that coverage be written; he sent pictures to the company of the Pet Kingdom premises. The policy was dated September 17, 1971, and extended for one year. It contained an added charge of $215.00 because of the lioness.

The policy of the Cincinnati Insurance Company (Exhibit 20) includes under Coverage A,Bodily Injury Liability, the obligation that the Company shall pay on behalf of the insured, John B. Hanna d/b/a Pet Kingdom, all sums which the insured “shall become legally obligated to pay as damages because of (bodily injury) to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of bodily injury or property damage.” Under Section II, Persons Insured, the policy applies to an insured:

“(a) If the named insured is designated in the declaration as an individual, the person so designated but only with respect to the conduct of a business (emphasis supplied) of which he is the sole proprietorship;”

The policy covered losses involving bodily injury or property damage occurring during the policy period within the policy territory, that territory being defined as including the United States of America, its territories or possessions or Canada.

Appellant Cincinnati insists that the extra charge for the lion of $215.00 was really only for the several months that the lion was to be kept at Pet Kingdom and that when Mr. Hanna took Daisy away from Pet Kingdom and put her in a cage at his home, his keeping of the lioness was not “conduct of a business” within the meaning of the coverage of the Cincinnati policy.

As suggested by Judge Nearn of this Court in the case of Reed v. Tennessee Farmers Mutual Insurance Co., Tenn.App., 483 S.W.2d 721, if Cincinnati had deemed the location of the lioness to be determinative of liability coverage on her, then it would have been a simple and easy matter for Plaintiff to have added a statement to the policy that coverage of the lioness would cease when she was moved from Pet Kingdom. The lioness was still a part of Defendant’s business even though removed from Pet Kingdom.

We concur in the finding of His Honor the Chancellor that the maintenance of Daisy at Mr. Hanna’s home was in conduct of his business. Assignment of error No. I is respectfully overruled.

We turn now to the assignments of error II and III that the Chancellor erred in exonerating Shelby Mutual Insurance Company from liability and in failing to hold that both policies afforded coverage and should share the loss on a pro rata basis.

The Shelby Mutual policy was a regular homeowners’ policy covering the premises of the home at Route 21, Cedar Bluff Road, Knoxville, Tennessee, where the lioness, Daisy, was being kept at the time the Ramsbottom child was injured.

The Appellant Cincinnati Insurance Company relies upon the exception in the following exclusion in the Shelby Mutual policy to establish liability against Shelby:

“1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
(d) To bodily injury or property damage arising out of business pursuits of any insured, except activities therein which are ordinarily incident to non-business pursuits:” (Underscoring ours.)

As so aptly observed by His Honor the Chancellor, this exception seems to be intended to provide coverage for ordinary homeowner activities even though money may be earned from them. We also agree with His Honor the Chancellor that the keeping of a lion is not “ordinarily incident to a non-business pursuit.” Lions are not ordinarily kept at home. See Crane v. State Farm Fire & Casualty Co. (1971), 5 Cal.3d 112, 95 Cal.Rptr. 513, 485 P.2d 1129, 48 A.L.R.3d 1089, and the annotation beginning at page 1096 entitled “Construction and Application of Business Pursuits Exclusive Provision in General Liability Policy.” Assignments of error II and III are therefore respectfully overruled.

We find no merit in Defendant John B. Hanna’s appeal insisting that the Chancellor erred in failing to allow him attorneys’ fees. His assignment of error is respectfully overruled.

The judgment of the lower Court is affirmed at the cost of the Appellant Cincinnati Insurance Company.

MATHERNE and NEARN, JJ., concur.


author: WALKER, Presiding Judge.

text:
    George Lewis TAYLOR, Jr., Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    April 6, 1976.
    James P.» Diamond and Joe C. Morris, Jackson, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, George W. Hymers, Jr., Dist. Atty. Gen., Jackson, Howard F. Douglass, Asst. Dist. Atty. Gen., Lexington, Willard E. Smith, Sp. Prosecuter, Henderson, for defendant in error.
   OPINION

WALKER, Presiding Judge.

The defendant below, George Lewis Taylor, Jr., was indicted by the Chester County grand jury for larceny by trick by stealing $7250 from the First State Bank of Henderson by a check-writing scheme with intent to defraud the bank in violation of TCA 39-4202 (“Larceny” defined). The petit jury found him guilty of grand larceny and fixed his punishment at three to five years in the penitentiary. He appeals in error.

The defendant insists that the facts of this case do not support a conviction for larceny. We agree and reverse.

The defendant, an attorney, had for collection a claim of the Ohio Valley Livestock Company amounting to about $70,000 against Gerald Castelow, an Alamo farmer and meat packer doing business as West Tennessee Packing Company. Threatening suit to close his business, the defendant sought to get Castelow to pay $10,000 on the claim and Castelow told him he could pay $5000 at that time. After further discussion, Castelow gave him on June 7,1974, a check drawn on the Bank of Halls for $7250 payable to “Ohio Valley Liv. and Lew Taylor, Attorney.” The defendant is also known as Lew Taylor.

In his testimony Castelow says he told the defendant he could not cover the check then and that he could probably do so in about two weeks. He says the defendant told him he would hold the check two weeks and to get a loan to cover it. He testified that the defendant was supposed to hold the check a week or ten days or two weeks, something like that. He also said that the defendant helped him with some papers to make a loan to pay off his indebtedness. The check was dated the day it was given.

The defendant testified that his client was urging him to get an attachment and to close Castelow’s business; that he tried to arrange a loan so Castelow could pay the entire debt; that Castelow told him the check would clear because he was in the process of selling goods and that he told Castelow he would deposit the check.

The defendant deposited Castelow’s check that day (June 7) in his trust account at the First State Bank. He had opened this account June 6 with a $408.89 deposit. That day he drew a check on this account for $7350 and deposited it in his account at the Planters Bank of Maury City. The First State Bank paid this check in regular course of business from the defendant’s account.

It is apparent that in May and June 1974 the defendant was short on cash and credit. His deposit in the Planters Bank of Maury City was used to pay a check he had previously given the Chester County Bank and which had been returned by the Planters Bank for insufficient funds.

When the check written by Castelow arrived at the Bank of Halls, an official or employee there, according to Castelow, called him and asked what to do. He told the bank to stop payment. Castelow said it is possible he had sufficient funds in the bank to cover the check but he had other debts, too. After the stop order, the check was returned from the Bank of Halls to the First State Bank. On inquiry about it, the defendant told the assistant cashier to send it through again. This was likewise unsuccessful and the defendant told that bank officer he would attempt to get the matter cleared up. On the defendant’s request, the bank sent the check back for the third time with the same result. This prosecution followed.

Castelow gave his check as a payment on a legitimate debt. There was no collusion between him and the defendant. The disputed fact is whether he told the defendant to hold the check one to two weeks or whether the defendant was told to deposit it immediately. The check was not postdated and the defendant was under no legal obligation to hold it for any period of time. By Castelow’s evidence, he only wanted the check held a short time. He did not deny he had sufficient funds to honor the check but said he had more things coming in. He had been willing to pay $5000 without any delay. According to the state’s evidence, the defendant would have expected the check to be paid in one to two weeks.

The most that this evidence shows is that the defendant deposited and received credit for a check that would not be paid for one to two weeks. The debt involved was legitimate and he did not know that Castelow would enter a stop payment order and that he then would not lift the order. By the state’s evidence, he would at most plan at the time of his deposit to use the bank’s credit two weeks. When the defendant deposited the check, he made no fraudulent representation to the bank.

Under the facts of this ease, we find no larceny proven. An essential element of the crime of larceny is an intent to deprive the owner of his property, not temporarily, but permanently. Fields v. State, 46 Tenn. 524 (1869). These facts do not make out larceny by trick, artifice or strategem which requires the same intent. The requisite intent to steal is lacking.

We find no error in the trial judge’s refusal to grant a change of venue because it developed on voir dire examination that most of the jurors had done business with the First State Bank. The trial judge did not abuse his discretion on this late request. See Wilson v. State, 2 Tenn.Cr.App. 138, 452 S.W.2d 355.

The defendant also assigns as error the trial judge’s refusal to grant a mistrial when a state’s witness, the bank president, on cross-examination, accused the defendant of forgery of the endorsement. Incompetent evidence elicited on cross-examination cannot be complained of. Pulley v. State, Tenn.Cr.App., 506 S.W.2d 164. This assignment is without merit.

We likewise find no error in the instructions.

Reversed and dismissed.

RUSSELL and DUNCAN, JJ., concur.


author: DAUGHTREY, Judge. GALBREATH, Judge DAUGHTREY, Judge.

text:
    Jimmie WILLIAMS, Jr., Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 4, 1976.
    Order on Petition to Rehear June 22, 1976.
    Certiorari Denied by Supreme Court Sept. 7, 1976.

      Marvin J. Brode, Memphis, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Hugh Stanton, Jr., Dist. Atty. Gen., John A. Irvine, Asst. Dist. Atty. Gen., Memphis, for defendant in error.
   DAUGHTREY, Judge.

OPINION

The defendant, Jimmie Williams, Jr., was convicted by a Shelby County jury of murder in the first degree and sentenced to thirty years imprisonment.

On appeal the defendant raises multiple assignments of error, which present six issues for our determination: (1) the sufficiency of the evidence to support a verdict of first degree murder; (2) the deliberate spoliation by the State of an exhibit to the record; (3) the alleged prejudicial effect of an improper question asked by the prosecution of the defendant on cross-examination; (4) the court’s alleged error in admitting certain photographs into the record without a proper foundation; (5) the allegedly erroneous charge to the jury on the “law of flight”; and (6) the court’s alleged error in permitting introduction of the victim’s purported dying declaration into the record, while at the same time denying the defendant his right to attempt impeachment of that statement.

The evidence produced at trial, which lasted three days, involved the testimony of over twenty witnesses. There were serious discrepancies between the evidence produced by the prosecution and that offered by the defendant, who maintained that the shooting which caused the victim’s death was accidental in nature. Indeed, there were factual discrepancies in the testimony of the various witnesses for the State. But the jury had the duty of resolving any inconsistencies in the evidence, and their verdict reconciles all such material discrepancies in favor of the State. Monts v. State, 218 Tenn. 31, 400 S.W.2d 722, 731 (1966); Graves v. State, 489 S.W.2d 74, 84 (Tenn.Cr.App.1972): In attacking the sufficiency of the evidence on appeal, the defendant must prove that the evidence preponderates in his favor and against the verdict of the jury. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). We have closely reviewed the record, and we think that the defendant has failed to carry his burden on this point, based on the totality of the evidence before the jury.

The victim, Yelma Gant Ford, died on the kitchen floor of her Memphis, Tennessee home on July 26, 1973 from a single .22 calibre gunshot wound to the upper abdomen and chest. A deputy medical examiner testified that the bullet entered to the right side of her upper abdomen, transversed the liver, heart and one lung, and finally lodged in the victim's left arm. He testified that the wound was a “contact wound,” i.e. when fired the muzzle of the gun was against the victim’s body.

Under the State’s proof, the victim and two friends had spent the evening of July 25,1973 at the Soulville Lounge, where the victim got into an argument with one Marie Hatter. Hatter was there with the defendant, with whom she had been living off and on during the previous two years. The victim had also cohabited periodically with the defendant during the same period of time. The relationship they shared can best be described as stormy.

After the argument between Hatter and the victim, the defendant exchanged some words with the victim, who then called the police to the Soulville Lounge. The police interviewed several people in the parking lot, and after they left a fight ensued between the victim and the defendant. The testimony concerning who started the fight and its extent was conflicting, but it appears from the testimony of one disinterested witness who had tried to break up the fight that the defendant hit and kicked the victim repeatedly. It also appears that the victim tore the defendant’s shirt during this time. The defendant’s wrath was finally diverted to the intervenor, who fled in his car with the defendant in pursuit. According to the testimony of her friends and family members, as a result of the fracas the victim’s mouth was bloody and her eye and face swollen. However, the medical examiner noticed no apparent facial bruises the next day when he conducted the autopsy-

After the fight the defendant went to his home, which was located across the street and two doors up from the house where the victim was living with her family. It appears that he armed himself with a long-barrelled .22 calibre single-shot target pistol, and went to the victim’s house. According to the statement the defendant gave the police just after his arrest, he went to “scare Velma” into leaving him alone. At trial the defendant denied this purpose, and said that he went to the victim’s house to ask her not to call the police anymore, and took his pistol with him for self-protection against her family.

The victim had not arrived home when the defendant first went to her house, so he returned home and sat on his front porch with Marie Hatter and awaited the victim’s arrival. Some twenty minutes later the victim got home and the defendant went back to her house for the second time, pushed his way past her brother who was standing on the front porch, and confronted the victim in the living room. What then occurred is a matter of sharp dispute between the State’s witnesses and those for the defendant.

According to the prosecution witnesses, the shooting was witnessed by two people inside the house at the time: one of the victim’s brothers and his friend, Dorothy Dickerson. They testified that the disheveled victim had been crying and talking about calling the police when the defendant arrived. The victim and the defendant exchanged heated words on this subject, the defendant complaining that the victim had “called the police on him” too many times in the past, that it had cost him a lot of money, and that he would kill her if she called the police again. The victim insisted she was going to contact the police and moved toward the phone. The defendant apparently repeated his threat and then pulled his pistol and shot her. The State’s witnesses by their oral testimony placed the defendant and victim some five feet apart standing on either side of a doorway between the living room and a bedroom. According to them the victim screamed, “Jimmie, you killed me, you shot me.” She then staggered through the bedroom and into the kitchen where she collapsed and died at about 1:30 A.M. on the morning of July 26, 1973. On cross-examination both these witnesses denied that there was any struggle before the gun went off.

The defendant testified in his own behalf that there was no one inside the victim’s house when the shooting occurred. He said that he was trying to reason with the victim but that she threatened him, saying “I told you the next time I saw you with Marie I was going to kill you.” He testified that she grabbed his gun out of his belt, that he took hold of the barrel, and that as they struggled the gun went off accidentally. He admitted that the gun had to be cocked before it could be fired, denied that it was cocked when he brought it into the house, but said that he didn’t see the victim cock the gun before it went off. He further testified that after the shooting he picked the gun up, heard the victim say she was shot, and immediately left the house thinking she was not seriously hurt. He went home, got in his car with Hatter and a cousin, and fled. He was arrested before he got out of the city limits, and at that time told police he was going to Somerville, Tennessee to get his mother to look after his house because he knew he would be arrested. The .22 pistol was recovered from the ear.

The defendant insists that the medical testimony regarding the nature of the wound supports his theory that the gun discharged accidentally during a struggle, and rebuts the charge of first degree murder. He concludes that the trial judge should have directed a verdict on this charge, and that on appeal the evidence fails to support the jury verdict. We find this argument unpersuasive. The medical testimony is not entirely inconsistent with the testimony of other State witnesses. While the verbal description of the distance between the victim and the defendant would tend to negate the possibility of a contact wound, the marks put on a diagram of the scene by the State’s chief eyewitness actually placed the defendant and the victim within two and one half feet of each other at the time of the shooting, making the resulting contact wound quite plausible. Furthermore, there was ample evidence of premeditation and deliberate design to kill on the part of the defendant. Several witnesses testified to previous beatings inflicted on the victim by the defendant and described occasions upon which he had pulled a gun and threatened to kill her. The jury was entitled to find evidence of premeditation in his repeated armed trips to the victim’s home in search of her just prior to the shooting. Finally, we note that the defendant’s attempt by his testimony to establish the absence of any eyewitnesses to the shooting was impeached by his statement to the police at the time of his arrest, in which he said that the same two eyewitnesses produced by the State at the trial were in fact inside the victim’s house when she was shot.

Finding that the weight of the evidence fails to preponderate in the defendant’s favor, and that the trial court committed no error in refusing to direct a verdict of not guilty, we overrule all those assignments of error which relate to the form and sufficiency of the evidence at trial.

On the issue of the alleged spoliation of the State’s diagram of the scene, the record shows that sometime after one of the eyewitnesses had begun testifying at the original trial of this case, a mistrial was ordered on the defendant’s motion. In preparation for the retrial, the prosecutor erased certain marks put on the diagram by the eyewitness indicating the location of various people who were inside the house at the time. The defendant insists that this deliberate erasure had the effect of depriving him of effective cross-examination in the subsequent trial and that it constitutes “affirmative evidence of the weakness of the prosecution” under United States v. Remington, 191 F.2d 246, 251 (2nd Cir. 1951) and similar cases. This latter conclusion is correct as a matter of law, provided the circumstances of the act manifest bad faith on the part of the prosecution. See generally, McCormick, Evidence § 273 (2d ed. 1972). We think the record fails to demonstrate the requisite bad faith. The diagram consists of a drawing of the scene on a large piece of cardboard. The cardboard is covered with heavy transparent plastic, upon which grease pencil marks were made by the witnesses. Marks made at the first trial were wiped off prior to the second trial, in an obvious attempt to avoid any suggestion to the witnesses.

Even if the prosecutor’s action here is interpreted to give rise to an inference of weakness, the defendant would at most be entitled to a jury charge on this issue, which he failed to request as required by T.C.A. § 40-2517. In the absence of a special request, the trial court will not be held in error for failure to instruct the jury on what is clearly a non-fundamental error. Turner v. State, 188 Tenn. 312, 219 S.W.2d 188 (1949); Arterburn v. State, 208 Tenn. 141, 344 S.W.2d 362 (1961).

Regarding the effect of the erasure on the defendant’s right of cross-examination, the record shows that defense counsel subjected both eyewitnesses to stringent cross-examination regarding allegedly inconsistent statements previously given under oath. But there is no indication in the record that there was a discrepancy between marks on the diagram made by witnesses at the first trial, and those made at second trial. We therefore think the defendant has failed to demonstrate any prejudice arising from the alleged spoliation of this exhibit and we overrule this assignment of error.

The defendant next complains of a question propounded on cross-examination of the defendant regarding his admitted relationship with a neighborhood girl whom the prosecution implied was thirteen years old, and the defendant insisted was sixteen. Taken in context, we think the line of questioning was within the bounds of proper cross-examination and further that it was properly limited by the trial court’s ruling. State v. Jones, 215 Tenn. 206, 385 S.W.2d 80, 83-84 (1964).

The defendant also alleges error in the admission of certain photographs of the victim’s house, but we find no merit in this contention. The record reflects that a proper foundation was laid for the introduction of the photographs in question.

In an attack on the instructions to the jury, the defendant assigns as error the court’s charge on the permissible inference to be drawn from the defendant’s alleged flight following the shooting. We have reviewed the charge and determined that it is a correct statement of the law. The issue was legitimately raised by the evidence at trial. Therefore, the court committed no error in connection with this charge.

Finally the defendant challenges the admissibility of the victim’s statement: “Jimmie, you killed me, you shot me.” The defendant first complains that the statement constitutes hearsay. A timely objection was entered at trial and the prosecution argued in response that the statement was admissible under both the res gestae and the dying declaration exceptions to the hearsay rule. The trial court overruled the defendant’s objection and allowed the two eyewitnesses to the shooting to repeat the victim’s statement.

We find no error in the court’s ruling because the statement, made spontaneously and contemporaneously with the event, meets the requirements of both the excited utterance (“res gestae”) and the dying declaration exceptions to the rule against hearsay. See generally, McCormick, Evidence §§ 281-287, 288, 297 (2d ed. 1972).

We are troubled, however, by the court’s refusal to allow the defendant an opportunity to impeach the victim’s statement. Defense counsel submitted as an offer of proof an “Affidavit of Perjury” executed by the victim in November 1969, some four years prior to her death and at a time when she was approximately sixteen years old. This document was part of the record in a separate criminal case against the victim’s brother. The affidavit was sworn to and its contents were in direct conflict with sworn testimony which earlier had been given by the victim in the 1969 trial.

The victim’s affidavit constitutes hearsay if offered to prove the truth of its contents, but it would not be considered hearsay if used for the purpose of impeachment. Put another way, the affidavit would be inadmissible hearsay if offered to prove the truth of the declarant’s statement “I am a perjurer.” But it would be admissible to show that the declarant had made conflicting statements under oath, from which the jury could infer that she was in fact a perjurer, without regard to which of her two inconsistent sworn statements was true. This observation is important, because the law is clear that a dying declaration may be impeached in the same manner that the declarant could have been, had she or he been testifying in person. 2 Wharton’s Criminal Evidence § 347 (13th ed. 1972); 5 Wigmore, Evidence § 1446 (Chadbourn Rev. 1974); McPherson v. State, 17 Tenn. 279 (1836); Morelock v. State, 90 Tenn. 528, 18 S.W. 258 (1891). We think under this rule the victim’s statement was subject to impeachment on the basis of a prior act directly related to her veracity.

On the other hand, the law is equally clear that an excited utterance is not subject to impeachment. 2 Wharton’s Criminal Evidence § 317 (13th ed. 1972). And the “res gestae” statement of a declar-ant otherwise incompetent to testify is admissible under the excited utterance exception to the hearsay rule. See, e. g. Couch v. State, 93 Tex.Cr.R. 27, 245 S.W. 692 (1922) (dictum); Jones v. State, 111 Tex.Cr.R. 172, 11 S.W.2d 798 (1928). The rationale behind the divergence in the two rules is well-stated in the Jones case and bears on the result we reach here:

There exists an obvious distinction between a dying declaration and a res ges-tae statement. In the one case a sense of impending death takes the place of an oath, and the law regards the declarant as testifying, while in the other it is the event itself which speaks. The one may therefore be impeached as the evidence of any witness may be, but the other is inanimate. It is the transaction speaking as distinguished from the witness. Res gestae is in law regarded as the actual facts expressing themselves through the mouth of a witness. Reasons underlying and which permit the admission of res gestae statements preclude the idea that they may be impeached by proof of contradictory statements of declarant made at a time and under circumstances which render them hearsay. The following quotations from the rules and principles governing the admission of res gestae statements will illustrate this:
“The general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to actual sensations and perceptions already produced by the external shock.” Wigmore, Evidence, § 1747.
“The utterance must have been made while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance.” Wig-more, Evidence, § 1750(b).
“The admissibility of res gestae statements is not dependent at all upon the veracity of the declarant because he is not regarded as a witness but as merely the passive instrument through which the event itself speaks.” Encyclopedia of Evidence, vol. 11, p. 294.
“In some cases the res gestae principle is distinguished from the principle involved in the admission of dying declarations. In the latter the apprehension of immediate death takes the place of the oath, while in the former it is the spontaneity of the statement and the fact that it is the transaction itself speaking which renders the declaration admissible. In one the declarant is regarded as a witness, the truth of whose declaration is guaranteed by the effect on the mind of declarant of the realization of approaching death. In the other declarant is not looked upon as a witness but merely as the instrument through which the transaction voices itself.” Encyclopedia of Evidence, vol. 11, p. 296. 11 S.W.2d at 799-800.

Thus the purpose behind the rule permitting impeachment of a dying declaration is to test the declarant’s reliability. Here that need is supplied by the trustworthiness inherent in the spontaneity of the contemporaneous and excited declaration. Therefore we feel that any error committed by the trial judge in failing to admit the impeaching evidence was harmless.

This conclusion is further buttressed by the facts surrounding the declaration. It was not a statement made sometime after an unwitnessed act, as is often the case with a dying declaration, but was made simultaneously with the act and both the act and the statement were observed and later described by the two eyewitnesses. Under such circumstances the victim’s statement as an item of evidence can be considered cumulative in nature. We think the court’s failure to allow impeachment of the statement had no effect on the result in this case.

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

WALKER, P. J., concurs.

GALBREATH, Judge

(dissenting).

Without belaboring the point I would hold that the senseless killing described in the record and majority opinion resulted from passion and anger that was still influencing the actions of the defendant at the time he shot the deceased. I would reduce to second degree murder.

Was the mind of the defendant at the moment of the slaying so far free from the influence of excitement, or passion, as to be capable of reflecting and acting with a sufficient degree of coolness and deliberation of purpose; and was the death of the person assaulted the object sought to be accomplished — the end determined upon? This question as set out by the Supreme Court in a number of cases, including Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, must be answered in the affirmative before a killing, presumed otherwise to have been murder in the second degree, can be lawfully held to have been murder in the first degree.

The State’s proof plainly shows that the object sought to be accomplished or the end determined upon by the defendant was to convince the deceased that she should not report him to the police again. When she moved towards the telephone with the announced intention of frustrating the end determined upon by the defendant he reacted in an angry, emotional and heated fashion. He killed where a less impassioned person would not have done so.

For the reasons touched on above I respectfully dissent.

ORDER ON PETITION TO REHEAR

DAUGHTREY, Judge.

The appellant has filed a petition to rehear that raises substantially the same questions treated in our opinion. In this regard, he has failed to meet the prerequisites of a petition to rehear. Rule 32, Rules of the Supreme Court of Tennessee, adopted by this Court, 2 Tenn.Cr.App. 746 (1967); see also Smith v. State, 2 Tenn.Crim.App. 192, 452 S.W.2d 669 (1969), cert. denied 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed.2d 62 (1970).

Additionally, the contention is made that there occurred in this case a violation of the rule announced in Farris v. State, 535 S.W.2d 608 (Tenn.1976). Upon a review of this record, we find that no Farris question was raised in the trial court, and therefore, under the holding in Farris, the appellant is entitled to no relief in this Court.

The petition to rehear is denied.

WALKER, P. J., concurs; CHARLES GALBREATH, Judge, who dissented in part to majority opinion but concurs here.

      . Difficulty in the transcription of this record produced numerous gaps attributed to “inaudibility.” On this particular ruling the bill of exceptions recites only: “Court overruled objection. Court gives reasons.” Thus it is impossible to discern whether the statement was admitted as an excited utterance, a dying declaration, or both. The trial judge charged the jury on the law pertinent to dying declarations; no corresponding instruction on res gestae utterances would seem to be required.

      . The victim had testified as an eyewitness for the State at her brother’s felony-murder trial. After his conviction, she executed a sworn statement for his lawyer, recanting her testimony and saying that she had not been at the scene of the crime, knew nothing of the details, but had been coerced by the Memphis police into testifying against her brother.

      . Both McPherson and Morelock involved impeachment by use of declarant’s other statements, inconsistent with the content of the purported dying declaration and made either prior or subsequent thereto. Our research has revealed no reported cases in Tennessee or elsewhere involving the impeachment of a dying declaration by proof of a prior perjurious act.


author: DAUGHTREY, Judge.

text:
    Harold Ray MOULTRIE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 22, 1976.
    Certiorari Denied by Supreme Court Oct. 4, 1976.

      Walker Gwinn, Asst. Public Defender, Charles E. Baucum, Memphis, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert H. Roberts, Advocate Gen., Michael S. Long, Asst. Dist. Atty. Gen., Memphis, for appel-lee.
   OPINION

DAUGHTREY, Judge.

This case is before us on appeal from an order of the Shelby County Criminal Court denying appellant’s post-conviction petition after an evidentiary hearing in the trial court.

The appellant was convicted in the same court on January 27,1971 of burglary in the second degree and sentenced to serve three to eight years in the penitentiary. This motion for a new trial was overruled on February 26,1971 and on March 11,1971 he was declared indigent and granted an appeal from the judgment of conviction. However, the technical record fails to show whether an attorney was appointed to represent him at that time and thus we must assume despite this determination of indi-gency that his retained counsel continued to represent him on appeal. The judgment of the trial court was affirmed in an opinion of the Court of Criminal Appeals filed on February 24, 1972 (Harold Ray Moultrie v. State of Tennessee, Shelby County No. 53). No petition for certiorari to the Tennessee Supreme Court was filed by Moultrie or by his attorney on his behalf, and it is this circumstance of which he now complains.

The appellant filed a post-conviction petition on March 7, 1973 and counsel was appointed for him on April 19, 1973. The State filed a motion to dismiss the petition that was sustained on May 31,1973, and on that date the petition was dismissed without an evidentiary hearing. On appeal of that order, the ruling of the trial judge was reversed on June 13, 1974 and remanded for an evidentiary hearing in the trial court. Writing for this Court, Judge Russell ruled that an evidentiary hearing should have been held to determine whether the petitioner’s retained attorney had, as alleged, “abandoned him without a word in the midstream of the appellate process,” and further holding that “such representation would be farcical and the processes of justice mocked [thereby],” in violation of the accused’s right to effective assistance of counsel. Harold Ray Moultrie v. State of Tennessee, Shelby County No. 16, filed June 13, 1974.

The State sought certiorari review of Judge Russell’s opinion but on June 30,1975 the Supreme Court denied the State’s petition in a per curiam order that noted the Supreme Court’s intervening opinion in Baxter v. Rose, 523 S.W.2d 930 (May 19, Tenn.1975). The case was remanded to the trial court for an evidentiary hearing to determine whether the appellant’s right to effective assistance of counsel had been denied, as measured by the standard just announced in Baxter.

On remand to the trial court, the appellant testified that his trial attorney had been retained by a co-defendant and that the lawyer had never actually received a fee from the appellant. He said that his last communication with his attorney followed the imposition of judgment upon conviction by the jury, at which time the appellant requested his attorney to appeal his case, and, according to the appellant, the lawyer agreed to take the case to the State Supreme Court if necessary. He said that he never heard from his attorney again, and learned that his conviction had been affirmed by the Court of Criminal Appeals only by reading a newspaper account of the Court’s opinion. The appellant offered into evidence copies of correspondence, including an November 8, 1972 letter to his attorney asking for the transcript of the trial, and an February 11, 1973 letter to the Criminal Court of Appeals Clerk requesting information concerning the disposition of his appeal and a copy of any opinion issued in the case.

The testimony of the appellant’s trial attorney corroborates the fact that he was hired and paid by the appellant’s co-defendant, and that he told the appellant after conviction that the judgment could be appealed to the Court of Criminal Appeals and to the Tennessee Supreme Court. He testified that he did not file a petition for review of the intermediate appellate court’s judgment because he was contacted by telephone by two of the appellant’s close relatives (“a sister or, a wife, or an aunt”) whose names he was unable to recall at the hearing. These relatives purportedly told the attorney that the appellant wanted his appeal dropped because he was to be considered for parole and he could not “make the Parole Board when an appeal is pending.” The attorney admitted that he did not confirm this fact with his client, nor did he notify the appellant that he was not going to take any further action in the case.

At the close of the proof the trial judge denied the petition, but apparently the bill of exceptions fails to set out his entire finding:

THE COURT: (PART OF COURT’S RULING INAUDIBLE DUE TO MALFUNCTION OF MACHINE) The Court is, feels, that he has been well qualified to handle any Criminal Court matters. The question of a speedy trial is overruled. The petition for Habeas Corpus is overruled.

The trial judge had been ordered by the Tennessee Supreme Court to apply the standards of Baxter v. Rose to the facts of this case, as he found them to be. We assume that he complied with the Court’s order, but we are unable to determine conclusively that he did so, based on the inadequacy of the ruling set out above. And reviewing the record before us, we reach the conclusion that some relief is due this appellant.

In Baxter the Tennessee Supreme Court rejected the “farce and mockery” standard traditionally utilized to determine whether retained counsel had rendered effective assistance in a criminal case. The Court held instead that “the advice given, or the services rendered by the attorney” must be “within the range of competence demanded of attorneys in criminal cases.” 523 S.W.2d at 936. The Court further held that “the standards . . . relating to the effective assistance of counsel, apply with equal force to privately retained counsel and counsel appointed to represent the indigent.” Id. at 938. The Baxter opinion does not contain rigid standards or specific guidelines, but requires instead “reasonable competence” by attorneys on behalf of criminal clients. Id. at 936.

Under these principals, we must determine whether the appellant’s right to effective assistance of counsel under the Sixth Amendment has been adequately protected in this case. At the hearing below, the defendant argued in essence that the effect of Baxter is to extend to the non-indigent defendant the indigent’s right to second tier appellate review, as mandated by Hutchins v. State, 504 S.W.2d 758 (Tenn.1974) and reaffirmed in State v. Williams, 529 S.W.2d 714 (Tenn.1975). However, this argument overlooks the fact that the opinions in Hutchins and Williams were predicated not on general constitutional grounds, but rather upon the specific statutory requirement of T.C.A. § 40-2018:

Appointee to represent indigent throughout trial and appeal. — An attorney appointed to represent any person under the provisions of §§ 40-2014 — 40—2028 shall proceed to counsel with and represent such person at all stages of the proceedings before the court which appointed him, and also upon any appeal from the judgment of such court which imposes a prison sentence.

In the absence of a directive from the Supreme Court, we are reluctant to hold that the effect of the opinion in Baxter was to extend the application of T.C.A. § 40-2018 to retained counsel when the legislative intention to limit its provisions to court-appointed attorneys is so clear.

We note also that while the appellant was declared indigent prior to perfecting his appeal of the original conviction, the record fails to reflect that any attorney was ever appointed to represent him. Thus, technically the statute is inapplicable to this particular indigent defendant.

The uncontradicted proof was that the attorney failed to file a petition for certiorari despite the clear understanding with his client that this action would be taken. In doing so, he unilaterally terminated the defendant’s appeal without notice and thus deprived his client of the opportunity to secure substitute counsel. Was his professional conduct reasonable under all the circumstances? We are unable to say conclusively that it was.

Assuming that relatives of the defendant had communicated by telephone the client’s desire to abandon an appeal, we believe reasonable competence demands that this fact be confirmed, preferably in writing, with the client. In this regard we note that the ABA Standards Relating to the Defense Function, endorsed by the Baxter Court as relevant in the determination of professional competence, provide in § 3.8 that “(t)he lawyer has a duty to keep his client informed of the developments in the case and the progress of preparing the defense.” While this rule of competent representation may be commendable as a matter of routine practice, we think it is vital when the defense “progresses” to the point of actual termination, with the effect of cutting off the possibility of taking further action which might, if pursued, benefit the client.

We note further that the ABA Standards require the lawyer to “take whatever steps are necessary to protect the defendant’s right of appeal.” Id. § 8.2. If this standard of professional competence means anything, it must mean that the attorney should not act to terminate the possibility of appeal without firm assurance from his client that this is the course of action he or she wishes to pursue. In short, we think the practice of unilateral termination of an appeal, without confirmation from the client, violates the Baxter standard and deprives the defendant in a criminal case of his right to effective assistance of counsel.

Accordingly, the judgment of this Court in the case of Harold Ray Moultrie v. State of Tennessee, Shelby County Criminal No. 53, entered on February 24, 1972, is hereby vacated and we re-enter the judgment as of this date for the purpose of re-establishing the statutory period for the filing of a petition for certiorari to the Supreme Court.

DWYER and O’BRIEN, JJ., concur.


text:
    Danya Joyce KEITH and Robert Taylor Bolden, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 22, 1976.
    Certiorari Denied as to Keith by Supreme Court Oct. 12, 1976.

      Brett B. Stein, Memphis, for Keith.
    Jay Fred Friedman, Memphis, for Bolden.
    R. A. Ashley, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, William E. Frulla, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

WALKER, Presiding Judge.

In a two-stage trial, the jury found the appellants, Danya Joyce Keith and Robert Taylor Bolden, guilty of possessing heroin with intent to sell. The second count of the indictment charged Bolden had been convicted of a prior offense of unlawful possession of a controlled substance. After the guilty verdict, the trial judge further instructed the jury. Then it fixed the punishment for Keith to five years and Bolden to 11 years in the penitentiary. They appeal in error.

With a warrant to search the premises, five officers went to a Memphis residence on April 7,1973. Sergeant Hamby knocked on the front door. In response to an inquiry from within, he identified himself as “Sheriff’s Department.” Sergeant Hamby could hear movement inside the house. He then tried the door and found it locked. He called to those officers in the rear to force that door and he forced the front door open.

As he entered Sergeant Hamby saw Keith run through the house and into the bathroom with Lieutenant Locastro in pursuit. She closed the door and flushed the toilet. Lieutenant Locastro promptly forced that door open and fished out of the toilet bowl a tinfoil package containing 22 “quarter spoons” of heroin.

Seven persons, including the appellants, were arrested in the house. Following Miranda warnings, Sergeant Hamby asked Bolden if he knew anything about the heroin. Bolden replied, “Yes, part of it is mine.” Other drugs, syringes and marijuana were also found there. A woman officer searched Keith and found a bottle of Desbi-tol pills in her bra. An expert witness testified that the powder taken from the toilet bowl was heroin.

Neither appellant testified or offered any evidence. In a suppression hearing out of the jury’s presence, Bolden denied making any statement at the scene.

In his first assignment of error, Bol-den challenges the affidavit to the search warrant. Although this question was not raised in the motion for a new trial, we have examined it and find it to be without merit. The affidavit says:

“STATE OF TENNESSEE, SHELBY COUNTY.
Personally appeared before me, J. L. Hambv and made oath that he has good ground and belief, and does believe that A male black known as ‘Lefty’, approximately 5'8", 150 pounds, approximately 28 years of age, a female black known as Joyce, is/are in possession of the following described property, to-wit: Heroin_ contrary to the laws of the State of Tennessee, upon the following described premises, to-wit: A two story brick apartment complex known as 3735 Robinhood Park, apartment two (21 located in Memphis. Shelby County. Tennessee. and his reasons for such belief are that affiant has On April 6, 1973 the affiant talked with a reliable citizen of Memphis. Shelbv County. Tennessee who has given the affiant other information in the past which he has found to be true and correct. This reliable citizen stated that within the past four (41 days this reliable citizen has been in the above described residence and has seen the above described persons selling and storing Heroin inside this residence._ He therefore asks that a warrant issue to search the person and premises of the said Amale black known as ‘Leftv’. approximately 5' 8". 150 pounds, approximately 28 years of age, a female black known as Joyce._ as above described in said County, where he believes said Heroin_ is/are now possessed, contrary to the Laws of Tennessee.
/s/ J L Hambv_
(Affiant)”

The information given by the informant came from his personal observations of the offense and the items to be seized. He had previously supplied accurate information to the law enforcement officer. Under the rules laid down in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Dishman v. State, 3 Tenn.Cr.App. 725, 460 S.W.2d 855, this affidavit is sufficient for an independent determination, by a neutral officer, that probable cause existed. It includes facts from which the magistrate could find the conclusions are warranted. This assignment is without merit.

. Both appellants say the search was improperly executed.

TCA 40-509 allows forcible entry by officers only after notice of authority and purpose. The officer here announced his authority but not his purpose before forcing entry. After knocking on the door, Sergeant Hamby heard a male voice ask, “Who is it?” To this Sergeant Hamby replied, “Sheriff’s Department.” He then heard movement inside which other officers described as running and scuffling and a loud noise in the house.

The burden of making an express announcement of authority and purpose is slight and under ordinary circumstances this must be done. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). The United States Supreme Court, however, recognizes exceptions under exigent circumstances to the strict requirement of “knock and announce.” Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. See also Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828.

Where officers have a valid search warrant in their investigation of narcotic offenses and make an initial but defective announcement of their purpose which is followed by the sounds of the occupants running and scuffling, the officers may readily conclude that the drugs are being destroyed or flushed down the toilet. Under these circumstances they may force entry without further announcement. See State v. Young, 76 Wash.2d 212, 455 P.2d 595 (1969); People v. Clay, 273 Cal.App.2d 279, 78 Cal.Rptr. 56 (1969); Commonwealth v. Dial, 445 Pa. 251, 285 A.2d 125 (1971); State v. Carufel, 112 R.I. 664, 314 A.2d 144 (1974).

This assignment is overruled.

Bolden challenges the sufficiency of the evidence to show that the substance seized was heroin. He contends that Ham-by gave a field test on the substance which turned blue and that the state’s expert testified that heroin turns reddish-purple. The expert testified that the substance she tested was heroin and the chain of custody shows that this was the substance seized. This assignment is without merit.

Keith complains that Bolden’s statement implicated her in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.

At the scene an officer, after proper warnings, asked Bolden about the heroin, to which he replied, “Yes, part of it (heroin) is mine.” This statement cannot be read as implicating Keith. She was one of seven people in the room. This does not indicate that the rest of heroin belonged to her. Bruton does not apply.

Bolden challenges the introduction of the statement on the ground that he had not been furnished the names and addresses of the witnesses to it in accordance with TCA 40-2441. This again is an assignment not called to the attention of the trial judge in the motion for a new trial.

The record does not show that Bolden demanded this information in accordance with the statute. This assignment is overruled. Morelock v. State, 3 Tenn.Cr.App. 292, 460 S.W.2d 861.

Bolden questions the constitutionality of the inference permitted under TCA 52-1432(a)(2) from the amount of the controlled substance possessed that it was possessed with the purpose of selling or otherwise dispensing. This was not raised in the motion for a new trial. We upheld this section against constitutional attack in Williams v. State, Tenn.Cr.App., 506 S.W.2d 193. This assignment is meritless.

Keith says the court erred in not requiring the state to produce the name of the informant in the search warrant. There was no showing that the informant was a material witness whose identity should have been disclosed. The court did not err here. Wells v. State, Tenn.Cr.App., 509 S.W.2d 520.

Keith contends that the court erred in permitting the jury to fix her punishment in the same manner as it did for Bolden. This was not raised at trial or in the new trial motion. She cites no authority. She received the minimum for the offense of which the jury found her guilty and we find no error in any event.

Likewise without merit is Keith’s claim that the court should have instructed the jury on the punishment and place of confinement for misdemeanors. Since the jury found her guilty of a felony before deliberating on punishment, the court was not required to instruct on misdemeanors.

The evidence fully supports the convictions.

All assignments are overruled and the judgment is affirmed as to both appellants.

DWYER and O’BRIEN, JJ., concur.


text:
    Glen Daniel PRINCE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 13, 1976.
    Certiorari Denied by Supreme Court Oct. 4, 1976.

      Edward Michael Ellis, Knoxville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., B. Rex McGee, Asst. Dist. Atty. Gen., Knoxville, for appel-lee.
   OPINION

WALKER, Presiding Judge.

The appellant, Glen Daniel Prince, was found guilty of robbery by use of a deadly weapon and sentenced to ten years in the penitentiary. We affirm.

In this appeal in error, the appellant challenges the sufficiency of the evidence to support the jury’s verdict. He specifically contends that the record shows that he did not have the intent to deprive the owner permanently of his property.

The state’s evidence showed that on January 25, 1975, at about 1:30 a. m., the appellant went to Dunkin Donuts in Knoxville and remained there about an hour and one-half during which time he had coffee and doughnuts and talked with some girls. After going to the rest room he returned to the counter and ordered more doughnuts from Ms. Leigh Dettmering. When she turned to put the doughnuts in a bag, he said: “This is a stickup, give me all your money.” He pointed a pistol at her and she gave him about $80. He then told her: “Give me five minutes, don’t call the police or I’ll be back to get you.”

When the appellant walked out, Ms. Dett-mering notified the night manager, Jack Smith, who found him backing his car out. Mr. Smith pulled his pistol on the appellant, stopped him and took the appellant’s pistol from his coat pocket. The appellant took from his pocket the money he had taken and laid it on the counter.

After being advised of his rights, the appellant admitted the robbery. He said he sat in the shop 30 or 40 minutes and finally decided to rob the place; that he pulled a gun and robbed the girl. He was entirely sober.

Testifying in his own defense, the appellant, age 20, said that he suffers from hypoglycemia, a medical condition caused by low blood sugar which requires expensive diets. It causes him to become either very depressed or very happy. He had been suffering from a mental depression over financial affairs. He quarrelled with his wife, left home and drove to his sister’s home. He asked his sister to go to a movie. When she was unable to accompany him to the movie, he took his brother-in-law’s pistol, with the intention of firing it, getting arrested and being placed in jail. In his depression, he thought the only place for him was jail.

After going to the movie alone, by his testimony, the appellant went to the doughnut shop for coffee. He locked his car before going in. He says he made no effort to escape and did not want to get away; that he told Mr. Smith he had had a quarrel with his wife, didn’t want to hurt anyone, and that all he wanted was to go to jail. He returned the money and sat down waiting for the police to arrive. He felt that he was worthless and needed help and therefore wanted to go to jail. According to his testimony, he had no intention of keeping the money but was in a confused state of mind and only wanted to go to jail.

The appellant’s mother and father testified to the depression and nervous condition he had from the effects of his physical condition and ailment. No expert witness testified on this subject.

A number of character witnesses testified as to the appellant’s good reputation for honesty and truthfulness.

In his contention that he did not have sufficient intent to commit armed robbery, the appellant first argues that from his condition of hypoglycemia he did not have the capacity to form the intent to steal. Since robbery is an aggravated larceny, this intent is required.

Prince testified he wanted to go to jail. He knew the difference between right and wrong and had the capacity to commit the crime.

He next insists he was prompted by a desire to go to jail for treatment and consequently did not form an intent to permanently deprive the owner of his property.

Intent can be inferred from all the facts and circumstances. Hall v. State, Tenn., 490 S.W.2d 495. In this case Prince used a pistol to commit the robbery. The use of force or a firearm may be circumstantial evidence of larcenous intent. Hall v. State, supra.

Furthermore, when he left the shop Prince made a threat of violence to Ms. Dettmering if she reported the crime. Although he surrendered and returned the money when apprehended by the armed night manager, this does not necessarily indicate he had no intent to permanently deprive the owner of the money.

From these facts the jury was warranted in finding the appellant guilty of armed robbery.

Affirmed.

GALBREATH and TATUM, JJ., concur.


author: DANIEL, Justice.

text:
    In the Matter of the ESTATE of M. L. WOODS, Deceased.
    No. B-5900.
    Supreme Court of Texas.
    Oct. 20, 1976.
    Rehearing Denied Nov. 24, 1976.
    McMillan & Lewellen, C. 0. McMillan, Stephenville, Dewey Cox, Jr., Ranger, for petitioner.
    Bill B. Hart, Eastland, for respondent.
   DANIEL, Justice.

This is a will contest in which the plaintiff-contestant alleges that the testator, M. L. Woods, was acting under undue influence when he executed his will in 1964 and a codicil in 1972, and that he was also of unsound mind when he executed the codicil in 1972.

The will and codicil were admitted to probate by order of the County Court of Eastland County. The contestant, Orville Lucille Brown, a niece of the testator, filed suit in the same court to set aside the order. This resulted in a take nothing judgment against the contestant. Upon appeal to the District Court, with jury findings favorable to the contestant, the order of the County Court probating the will and codicil was set aside and canceled. The Court of Civil Appeals affirmed. 533 S.W.2d 38. The only question here is whether there was any evidence of probative force to support the findings of the jury. Finding none, we reverse the judgment of the Court of Civil Appeals and affirm the judgment of the County Court.

On August 7, 1964, when M. L. Woods was about 81 years of age, he executed a will prepared for him by an Eastland attorney. It was typewritten and was attested by the attorney and another witness. The will left the surface estate of his home place of about 300 acres to Owen E. Rose and wife, Beatrice Rose, subject to a life estate in his stepson, Robert Stephens. Mr. and Mrs. Rose and their family lived on the Woods place, and helped to look after him, Rose having been employed to help care for Mr. Woods’ farming and ranching business from 1963 until Mr. Woods’ death in 1973. Robert Stephens, the son of Mr. Woods’ deceased wife, had lived in the same house with Woods for many years. The will left the surface of other lands owned at the time of his death to the four children of Owen and Beatrice Rose and to Susie Maurine Bratton, share and share alike. The residue of his property was left to Mr. and Mrs. Rose, the four Rose children, and Susie Maurine Bratton, share and share alike. The latter, Mrs. Bratton, was Owen Rose’s sister. She had worked in various capacities for Mr. Woods from 1956 to 1972. The will named as independent executor, Fred McCright of Cisco, a friend whom Mr. Woods had personally asked to serve.

On May 16, 1972, Mr. Woods executed before witnesses a typewritten codicil which was prepared by an attorney in Stephen-ville. The codicil referred to his will of August 7, 1964, and provided “I now desire to change such will to the extent only of excluding Susie Maurine Bratton as a beneficiary of such will.” He left to her “the sum of One Dollar and no more out of my estate” and provided “in all other respects my original will as written shall remain in full force.” The codicil was acknowledged by a self-proving affidavit signed and sworn to by Mr. Woods and the two subscribing witnesses, whose residences were shown to be in Stephenville.

M. L. Woods was a widower without any children or grandchildren. He had two stepchildren, the Robert Stephens heretofore mentioned and Mrs. Tollie Norton, who were the children of his deceased wife. His wife died in 1962, devising her half of the community property to these two children. As heretofore indicated, Robert Stephens was a beneficiary in the 1964 will. Mrs. Tollie Norton, although not a beneficiary, appeared as a witness for the proponents. Other relatives were brothers, nieces and nephews, but only one niece contested the will.

The contestant, Orville Lucille Woods Brown, is a niece who had been named along with Susie Maurine Bratton as sole devises in an earlier will of M. L. Woods prepared by a lawyer in Ranger and executed before witnesses on March 21, 1962. Orville Lucille is the daughter of O. H. Woods, a surviving brother of M. L. Woods.

M. L. Woods died on May 8, 1973. The 1964 will and 1972 codicil were admitted to probate May 22, 1973, by order of the County Court of Eastland County. On the next day the contestant, Orville Lucille Brown, filed suit in the same court to set aside the order on the grounds heretofore mentioned. After a hearing her plea was denied and a take nothing judgment was rendered against her on August 8, 1973. Upon appeal to the District Court she obtained jury findings that (1) “at the time M. L. Woods executed the Last Will and Testament dated August 7, 1964 ... he was acting under the undue influence of Owen E. Rose, Beatrice L. Rose, Robert Stephenson [sic], Carolyn L. Braddock, Neita Faye Rose Melton, Johnnie Owen Rose, Shirley Ann Rose, or by some other person or persons acting in concert or in privity with them . . (2) a similar finding with respect to the codicil dated May 16, 1972; and (3) a finding that M. L. Woods was not of sound mind when he executed the codicil.

When undue influence is alleged as a grounds for setting aside the probate of a will, the burden is upon the contestant to prove the allegation by a preponderance of the evidence. Rothermel v. Duncan, 369 S.W.2d 917, (Tex.1963); Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, 1036 (1939). The same is true when the contestant alleges testamentary incapacity. Lee v. Lee, 424 S.W.2d 609 (Tex.1968). As far as the question of testamentary capacity is relevant to this case, there was no allegation or proof that M. L. Woods lacked testamentary capacity when he executed the will dated August 7, 1964. On the contrary, six witnesses who knew and observed him during the years of 1964 and 1972 testified that in their opinion he was of sound mind during both of those years. There was no evidence or expression of any opinion to. the contrary. The only allegation of testamentary incapacity related to the codicil executed on May 16, 1972. A careful search of the record reveals no evidence in support of the jury’s finding that Woods was not of sound mind when he executed the codicil.

We have arrived at the same conclusion with reference to the jury’s findings on undue influence. In this “no evidence” determination, we have considered only the evidence and inferences which tend to support the jury findings and have disregarded all evidence and inferences that would lead to contrary findings. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974); Lindley v. Lindley, 384 S.W.2d 676 (Tex. 1964). We find no evidence, circumstantial or otherwise, of the existence and operation of any undue influence on Mr. Woods at the time of the execution of the will and codicil.

The rule stated in Rothermel v. Duncan, supra, is as follows:

“. . . Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. See: Stewart v. Miller, Tex.Civ.App. (1925), 271 S.W. 311, wr. refused; Olds v. Traylor, Tex.Civ. App. (1944), 180 S.W.2d 511, wr. refused.
“The burden of proving undue influence is upon the party contesting its execution. It is, therefore, necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above stated elements of undue influence. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138.”

For similar holdings as to the necessity of proof of the effective operation of a subverting or overpowering influence on the mind of the testator at the time of the execution of the instrument see Pearce v. Cross, 414 S.W.2d 457 (Tex.1966); Boyer v. Pool, 154 Tex. 586, 280 S.W.2d 564 (1955); Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138 (1914); and Burgess v. Sylvester, 177 S.W.2d 271 (Tex.Civ.App.1944), affirmed in 143 Tex. 25, 182 S.W.2d 358 (1944). For the same holding with respect to proof of undue influence in the execution or delivery of other instruments, see Dulak v. Dulak, 513 S.W.2d 205, 209 (Tex.1974); Besterio v. Besterio, 65 S.W.2d 759 (Tex.Comm.App.1933, holding approved).

The most that can be said of the evidence favorable to the contestant in this case is that circumstantially it supports one element of undue influence — the existence of an opportunity on the part of the proponents to exert an influence on Mr. Woods. Such evidence is reviewed at length in the printed opinion of the Court of Civil Appeals. We need not repeat it here. By way of summary, there was no direct evidence that the Roses, the stepson, or anyone else ever tried to persuade or influence Woods to execute the will of August 7,1964 or the codicil of May 16, 1972. The evidence favorable to the jury findings on undue influence consisted principally of proof that Woods was 81 years of age, was hard of hearing, had poor eyesight, and was unable to read or write anything but his name in 1964; that his physical condition continued to deteriorate and was worse in 1972; that after Owen Rose was employed by Woods in 1963, he and Mrs. Rose and their daughters were often at the Woods’ home attending to his needs or taking directions as to farm and ranch duties; that during all of these years, Woods’ stepson, Robert Stephens, lived in the house with him; that Owen Rose kept the will in his possession and refused to let his sister, Susie Maurine Bratton, or the independent executor, Fred McCright, see the will prior to Mr. Woods’ death; that during Woods’ last illness, his brother and sister-in-law (parents of the contestant) did not get to visit him often, because Mr. and Mrs. Rose and Mrs. Norton (Woods’ stepdaughter) stayed with him and turned down offers of help. Undoubtedly, this circumstantial evidence constituted proof that the Roses and Robert Stephens had the opportunity to exercise their influence on Woods. The record is silent, however, as to any of them attempting to do so, except for Owen Rose persuading him to sell his cattle at auction each year rather than continue sales to a long-time friend and cattle buyer.

There was also evidence as to the earlier will executed by Mr. Woods on March 21, 1962 and revoked by his 1964 will. It was prepared by his “regular attorney” in Ranger; it left everything to the contestant and Susie Maurine Bratton, share and share alike. Soon after its execution he told them and contestant’s mother about the will. The latter testified that Woods told her that he wanted his place to stay in the family and that “as long as I’ve got my sound mind there’ll [sic] never be a change made in that will.” She said he asked her to fight it if anybody ever came up with another will. The same witness (contestant’s mother) testified that Mr. Woods told her about three weeks before his death about signing “some papers”; that he said, “I never did know what I signed . I couldn’t read and I just signed what they told me to.” This last conversation occurred nine years after the execution of the 1964 will had been executed and a year after it had been affirmed, except for one change, by the 1972 codicil.

There is no evidence in the record as to the planning, preparation and execution of the will and codicil, or that the mind of Mr. Woods was in fact subverted or overpowered by one of the proponents at the time of the execution of either of the instruments in question. According to Rothermel, supra, this is an essential element of undue influence which a contestant must prove in order to prevail on an allegation of undue influence. It is not enough to show that proponents had ample opportunity to exert influence upon Mr. Woods as to the execution of the instruments. This Court said in Rothermel:

“. . . It is the law in Texas that a will cannot be set aside on proof of facts which at the most do no more than show an opportunity to exercise influence. Burgess v. Sylvester, Tex.Civ.App. (1944), 177 S.W.2d 271; affirmed, 143 Tex. 25, 182 S.W.2d 358. The establishment of the circumstances of having an opportunity to exert such influence due to being in a position of caring for the person upon whom the influence is supposed to be exerted is equally consistent with the theory of innocence as it is with the theory of wrongdoing. Price v. Taliaferro, Tex.Civ.App. (1952), 254 S.W.2d 157, wr. ref. n. r. e. The exertion of influence that was undue cannot be inferred alone from opportunity, but there must be some testimony, direct or circumstantial, to show that influence was not only present but that it was in fact exerted with respect to the making of the testament itself.”

In Boyer v. Pool, supra, in which there was evidence of the contestants’ opportunity to exert influence on the testator but no evidence of the circumstances under which the will was planned or prepared, this Court said:

“. . . Contestants must go forward and prove in some fashion that the will as written resulted from the daughters [proponents] substituting their mind and will for that of the testator. Here the will and the circumstances raise suspicion, but it does not supply proof of the vital facts of undue influence — the substitution of a plan of testamentary disposition by another as the will of the testator.”

In the present case, it is not shown whether one of the Roses, Robert Stephens, or anyone else accompanied Woods to the lawyer’s office in 1964 or in 1972. There is no evidence that either of the proponents suggested what should be written into the instruments. As far as this record shows, Woods could have acted in accordance with his own personal plan of testamentary disposition on the occasions when he had attorneys prepare the will and codicil. As indicated, we find no evidence that, at the time of the execution of the instruments in question, either of the proponents or anyone else used his or her influence so as to subvert or overpower the mind of the testator or so as to substitute the plan of testamentary disposition of another as the will of the testator.

Accordingly the judgment of the Court of Civil Appeals is reversed and the judgment of the County Court is affirmed.