author: CRIST, Presiding Judge.

text:
    Donald V. STEWART, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39211.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 27, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 16, 1979.
    Application to Transfer Denied April 10, 1979.

      Robert C. Babione, Public Defender, James B. Ashwell, Frank R. Fabbri, III, Asst. Public Defenders, St. Louis, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, John M. Morris, III, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for respondent.
   CRIST, Presiding Judge.

Appeal from Rule 27.26 proceeding. Movant appeals from part of an order of the Circuit Court of the City of St. Louis denying relief following an evidentiary hearing with assistance of counsel. Movant was convicted by a jury of attempted armed robbery and carrying a concealed weapon. He received consecutive sentences of eight years on the robbery charge and two years on the concealed weapon charge. The Circuit Court granted partial relief by ordering that the sentences be served concurrently.

Movant first claims that he was denied effective assistance of counsel in that his counsel failed to assert a valid defense to the charge of carrying a concealed weapon. The Rule 27.26 hearing evidence established that at the time of movant’s arrest he had been appointed, from time to time, to serve as a special process server for the Magistrate Court of the City of St. Louis. He was prosecuted on the concealed weapon charge under § 564.610 RSMo 1969, which excludes from its provisions “legally qualified sheriffs, police officers and other persons whose bona fide duty is to execute process, civil or criminal . . ..”

Counsel does have a duty to make a reasonable investigation of the facts of a case. Jackson v. State, 465 S.W.2d 642 (Mo.1971); Walker v. State, 511 S.W.2d 859 (Mo.1974). Counsel must of necessity, however, rely on information furnished by the client, and cannot be expected to be clairvoyant. Further, the act or omission on which the claim is based must be such as to suggest a deliberate and conscious dereliction of duty. Knight v. State, 491 S.W.2d 282, 285-286 (Mo.1973); Johnson v. State, 479 S.W.2d 416 (Mo.1972); State v. Garrett, 510 S.W.2d 203, 207 (Mo.App.1974).

There was little probability that movant, charged under the concealed weapon statute, was a process server. If he were carrying a weapon pursuant to that capacity, it is not unreasonable to assume he would disclose that information. His attorney testified that he discussed the case with him on many occasions. Pre-trial motions were filed. A detailed study of the police report was made. Upon learning that movant was a licensed watchman, his attorney contacted the police department to determine if he had a license to carry the weapon. We reject movant’s contention that he did discuss with his attorney “the fact that I had a file folder of subpoenas in the car” at the time of his arrest, “but he just glossed over that. ... I believe I did mention it to him; yes, sir.” His trial attorney testified that he was not made aware of movant’s contention that he was carrying subpoenas at the time of his arrest. The alleged subpoenas were never produced. The credibility of witnesses in a proceeding under Rule 27.26 is an issue for the trial court to determine. We defer to its judgment here. Campbell v. State, 515 S.W.2d 453 (Mo.1974).

Movant was not acting as a process server at the time of his arrest. He was, to the contrary, involved in an attempted armed robbery. Nothing surrounding his activities at the time of his arrest would have suggested this possible defense. This ground for reversal is denied.

Movant also alleged that he was denied due process of law by the trial court giving its own version of MAI-CR 1.02, the required instruction after the jury panel is sworn for voir dire. The substituted MAI-CR 1.02 was substantially identical to the one given in State v. Clifton, 549 S.W.2d 891, 897 (Mo.App.1977). Accordingly, this excursion from the approved MAI-CR 1.02 would have been grounds for a new trial had the point been preserved on appeal. It was not. State v. Stewart, 537 S.W.2d 579 (Mo.App.1976). Stewart was decided before Clifton. Apparently, prior to Clifton, many trial judges thought it was permissible to deviate from MAI-CR 1.02.

The well-recognized rule is that instruction error is trial error not cognizable in a Rule 27.26 proceeding. State v. Smith, 411 S.W.2d 208, 210 (Mo.1967); Campbell v. State, 515 S.W.2d 453, 456 (Mo.1974); Young v. State, 547 S.W.2d 146 (Mo.App.1976). Movant concedes this principle, but relies on the language in Rule 27.-26(b)(3): “trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal.” A constitutional error is one that is so glaring as to cause a substantial deprivation of the right to a fair trial. O’Neal v. State, 486 S.W.2d 206, 208 (Mo.1972); Edwards v. State, 535 S.W.2d 124 (Mo.App.1976). See Milentz v. State, 545 S.W.2d 688, 690 (Mo.App.1976).

We believe that the straying from MAI-CR 1.02 was error, but one not affecting constitutional rights. The error was not “so unfair as to deny Movant due process of law.” Thompson v. State, 569 S.W.2d 380, 382 (Mo.App.1978); O’Neal, 486 S.W.2d at 208. This ground for relief is denied.

Movant states as a separate point that the Rule 27.26 court applied an incorrect guideline in resolving this ground for relief. Our only inquiry is the correctness of the result reached by the court and a proper result will be affirmed even though an incorrect guideline was used. Turner v. State, 559 S.W.2d 555 (Mo.App.1977).

The judgment is affirmed.

SMITH, J., and ALDEN A. STOCKARD, Special Judge, concur.


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    Earl CLARK, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39393.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 27, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 16, 1979.
    Jay R. Burns, Bridgeton, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, John M. Morris, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard Poehling, Asst. Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

A Rule 27.26 appeal.

Movant was convicted on October 30, 1973 by a jury on two counts of robbery in the first degree by means of a deadly and dangerous weapon. He was sentenced to fifteen years on each count in the Missouri Department of Corrections, with the sentences to run consecutively. His conviction was affirmed on appeal. State v. Clark, 522 S.W.2d 332 (Mo.App.1975). Reference is made thereto for a more detailed statement of facts.

Movant filed a Rule 27.26 Motion to vacate his sentences. In his motion, movant alleged ineffective assistance of counsel in that his lawyer (1) failed to investigate and discover witnesses for the defense that would substantiate his claim of an alibi, (2) failed to discover through consultation with the police department the existence of other persons resembling movant and employing the same modes of operation used in the robbery and (3) failed to object to cumulative testimony by a police officer as to the lineup identification by the State’s witnesses.

The trial court dismissed his motion without appointment of counsel and without an evidentiary hearing.

Movant contends that the trial court erred in dismissing his Rule 27.26 Motion for the reason that (1) there was no return of service, answer or request for dismissal by the State and the dismissal was on the merits without notice and an opportunity to be heard, (2) movant was not afforded an opportunity to amend his motion, (3) his motion stated facts and not conclusions and (4) his motion stated grounds for relief and he was entitled to a hearing and appointment of counsel. We disagree.

We first deal with movant’s contention that his Rule 27.26 Motion alleged both ultimate facts and evidentiary facts that stated grounds for relief, and that he was thereby entitled to appointment of counsel and an evidentiary hearing. The allegation that his trial counsel failed to discover three possible alibi witnesses was conclusional and void of any supporting facts. The three witnesses were named and their affidavits attached to the motion; however, such affidavits merely stated that they were available on the day of the trial. There were no detailed facts presented to show in what manner the witnesses could have specifically assisted movant in his claimed alibi. It was not shown what these witnesses would have said to aid movant in his defense. He failed to allege that trial counsel could have discovered these witnesses through reasonable investigation, that they were willing to testify, or as to what facts would have been presented by such witnesses. Shields v. State, 491 S.W.2d 6, 9 (Mo.App.1973); Sherrill v. State, 515 S.W.2d 611, 613 (Mo.App.1974); Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974).

His allegation that his trial counsel failed to discover through consultation with the police department the existence and identity of other suspects fitting the same general description as appellant with similar modes of operation as used in the crime in question is also without merit. There was no factual allegation that such persons of similar description and modes of operation existed. He did not state that a reasonable investigation would have uncovered such evidence. Neither did he specify how such information would have benefited his defense. The record clearly establishes that his defense counsel did indeed investigate police evidence. Voegtlin v. State, 546 S.W.2d 40, 41 (Mo.App.1977).

Movant’s allegation that his trial counsel failed to object to the'testimony of the police officer as to the lineup identification is also contrary to the record. In any event, the mere failure to make objections does not constitute ineffective assistance of counsel. Nelson v. State, 537 S.W.2d 689, 695 (Mo.App.1976). The failure to object to cumulative testimony does not result in a substantial deprivation of the right to a fair trial.

Movant’s allegations did not present questions of law or issues of fact cognizable under Rule 27.26. He was thus not entitled to counsel nor an evidentiary hearing. There was no denial of his constitutional rights. Crawford v. State, 554 S.W.2d 491 (Mo.App.1977). Vogel v. State, 541 S.W.2d 87 (Mo.App.1976).

Did the court err in dismissing his motion without notice to movant, without request or answer by the State and without giving movant an opportunity to amend or be heard? Movant contends that the action of the trial court is contrary to the Rules of Civil Procedure. First, movant did not allege sufficient facts to entitle him to appointment of counsel and to an evidentiary hearing. Secondly, a Rule 27.26 Motion is unique.

The court in Bonner v. State, 535 S.W.2d 289, 291-292 (Mo.App.1976) held that a Rule 27.26 Motion is indeed a motion in form. This case is determinative and we quote therefrom:

“Rule 27.26(a) does provide that Rules of Civil Procedure shall apply insofar as applicable. State v. Edmondson, 438 S.W.2d 237 (Mo.1969). However, the initial pleading required under Rule 27.26 is a motion. The pleadings required under the Rules of Civil Procedure are set out in Rule 55.01. This Rule does not require a party to file a responsive pleading to a motion.”

Movant relies on Wheatley v. State, 559 S.W.2d 526 (Mo. banc 1977). Wheatley is distinguishable for the reason that movant therein had alleged sufficient facts to entitle him to an appointed counsel. Such counsel had in fact been appointed and was therefore entitled to notice.

There could be no prejudice to movant, for the reason that he was not entitled to the appointment of counsel nor to an evi-dentiary hearing. His last contention is without merit.

The judgment is affirmed.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: GUNN, Judge.

text:
    STATE of Missouri, Respondent, v. William IVORY, Appellant.
    No. 40052.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 27, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 16, 1979.
    Application to Transfer Denied April 10, 1979.

      Blair K. Drazic, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Appellant William Ivory was convicted of armed bank robbery in violation of 18 U.S.C. §§ 2113(a), (d) and (e) (1970) and was sentenced to thirty years imprisonment by the U. S. District Court for the Eastern District of Missouri. Subsequently, he was tried in state court for the same offense, convicted of robbery in the first degree, in violation of §§ 560.120 and 560.135, RSMo 1969 and sentenced to five years probation, with a suspension of the execution of the sentence for five years. Appellant argues that the latter conviction breaches both the state and federal ban against double jeopardy and, further, that the additional sentence in state court transgresses due process. He does not challenge the fact that he was guilty of the bank robbery. We affirm.

The crux of the appellant’s complaint is that his successive prosecution, conviction and sentence in state court was unlawful in light of his prior federal conviction. Though the issue was ruled upon adversely to appellant’s position in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), appellant maintains that the Bartkus decision is no longer valid. In support of that contention, he cites Justice Douglas’ opinion in Smith v. United States, 423 U.S. 1303, 1307, 96 S.Ct. 2, 4, 46 L.Ed.2d 9, 13 (1975):

Double jeopardy might also preclude state prosecution. That kind of objection may, in time, be resolved upon an appropriate motion before state tribunals. I mention the matter because of the Double Jeopardy Clause of the Fifth Amendment was held applicable to the States in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Benton may cast doubt upon the continuing validity of Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), which found that successive state and federal prosecutions upon substantially similar charges do not violate the Double Jeopardy Clause.

Since the Smith decision in 1975, any remaining doubt cast upon the validity of the Bartkus decision seems to have been resolved against the appellant. Most recently, in United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), the Supreme Court reiterated that the state and federal governments of our nation are separate political entities:

* * * State and Federal Governments “deriv[e] power from different sources,” each from the organic law that established it. United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141 [142], 67 L.Ed. 314. Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each “is exercising its own sovereignty, not that of the other.” * * 435 U.S. at 320, 98 S.Ct. at 1084, 55 L.Ed.2d at 310.

Consequently, no double jeopardy attaches, and the rule in Bartkus, always the rule in Missouri, remains effective. See, State v. Turley, 518 S.W.2d 207 (Mo.App.1974), cert. denied, 421 U.S. 966, 95 S.Ct. 1956, 44 L.Ed.2d 454 (1975).

As an extension of this argument, appellant complains that the subsequent state prosecution violated both the state and federal requirements of due process. Relying on the due process ban against criminal law procedures which “shock the conscience,” Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), appellant argues that the state court’s sentence of a 52 to 54 year old man to an additional 5 years probation beyond his 30 year federal sentence is unconstitutional.

Implicit in the acceptance of dual sovereignty is the recognition that state and federal governments have separate and independent interests in enforcing their laws, even when a single illegal act is an infraction against both authorities. Consistent with this notion are the sentences imposed upon the appellant for the single act of bank robbery. It is clear from the transcript that the trial judge thoughtfully considered both the status of appellant and the interest of the state when he determined the appropriate sentence:

I have also read State v. Turley, Mo.App., 518 S.W.2d 207, previously cited by the State, which recognizes the principle of dual sovereignty. It is true that in the Turley case the defendant had been acquitted in Federal prosecution. In any event, the reason for granting the defendant the minimum sentence with probation is because I feel that the State’s interest in this matter has already been satisfied. As I understand it, Mr. Ivory is either 52, 53 or 54 years old. It would seem to me a 30 year sentence for this act is sufficient punishment and that Mr. Ivory should not receive any additional punishment. It is not a situation where he was acquitted in Federal Court. It is also not a situation in which he was given a minimum sentence in Federal Court. I feel as though it would be cruel and unusual punishment, beyond the circumstances warranted, to sentence him to any more time than 30 years, considering his age, the nature of offense and punishment already imposed.

The trial court’s action in sentencing appellant was not improper.

Judgment affirmed.

REINHARD, P. J. and CLEMENS, J., concur.

      . The Bartkus decision reaffirmed the well established concept of dual sovereignty:
      Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. 359 U.S. at 131, 79 S.Ct. at 682, 3 L.Ed.2d at 691, quoting Moore v. Illinois, 55 U.S. (14 How.) 13, 20, 14 L.Ed. 306 (1852).

        See also: Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922).


author: REINHARD, Presiding Judge.

text:
    Thomas White SELVEY, Appellant, v. STATE of Missouri, Respondent.
    No. 40534.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 23, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 16, 1979.

      Bradford A. Brett, Mexico, for appellant.
    John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for respondent.
   REINHARD, Presiding Judge.

Movant appeals from the denial of his Rule 27.26 motion. A jury found him guilty of uttering a forged prescription for Phen-metrazine under § 195.170(5), RSMo. (Supp. 1975), the penalty section being § 195.-200(1). The court sentenced movant under the Second Offender Act to serve a term of two years.

As movant’s sole point on appeal, he states that the trial court erred in denying his motion, “because the information was fatally defective in that it listed Phenme-trazine as a Schedule II controlled substance and charged movant-appellant with a violation of RSMo., § 195.170(5) (1969) when Phenmetrazine is a Schedule III controlled substance and movant could have only been charged with a violation of RSMo., § 195.250 (1969).” We find no merit in movant’s contention.

In a 27.26 motion we must affirm the findings, conclusions, and judgment of the trial court unless they are “clearly erroneous.” Rule 27.26(j); Maggard v. State, 471 S.W.2d 161, 166 (Mo.1971); Bonner v. State, 535 S.W.2d 289, 297 (Mo.App.1976).

Appellant correctly states that by a statute passed in 1970, Phenmetrazine was originally listed as a Schedule III controlled substance. Section 195.017(6)(2)(b), RSMo. (Supp.1975). However, prior to the offense in question, the Federal Director of the Bureau of Narcotics and Dangerous Drugs rescheduled Phenmetrazine from Schedule III to Schedule II (36 Fed.Reg. 20, 686 (1971)) and subsequent to that federal action, the Missouri Division of Health registered with the Secretary of State new Schedules which listed Phenmetrazine as a Schedule II controlled substance.

Appellant argues that the Division of Health has no authority to “shift” a substance from one Schedule to another and that any attempt to do so usurps the legislative power of the General Assembly. This argument completely ignores the legislative scheme of the Narcotic Drug Act (§§ 195.-010-195.210) as well as the intentional interplay between the federal and state drug enforcement systems. The same statutory section which originally listed Phénmetra-zine as a Schedule III controlled substance empowers the Division of Health to “revise and republish” the Schedules. Section 195.-017.11, RSMo. (Supp.1975). Further, § 195.-015.1 specifically grants the Division of Health the power to “add” substances to the Schedules found in Chapter 195. Section 195.015.4 mandates that when a substance has been designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof has been given to the Division of Health, said Division should likewise designate, reschedule or delete the substance under §§ 195.010 to 195.-320. Movant does not contest that the Division failed to follow the statutory procedure. The statutory power of the Department of Health to reschedule Phenmetra-zine is beyond dispute. State v. Winters, 525 S.W.2d 417, 421 (Mo.App.1975).

This was not an improper delegation of legislative authority. See State v. Davis, 450 S.W.2d 168, 170 (Mo.1970); State v. Bridges, 398 S.W.2d 1, 5 (Mo. banc 1966).

Several cases refer to Phenmetrazine as a Schedule II controlled substance. See State v. Holden, 548 S.W.2d 194, 195 (Mo.App.1977); State v. Williams, 546 S.W.2d 533, 537 (Mo.App.1977); State v. Mulkey, 523 S.W.2d 145, 147 (Mo.App.1975).

Affirmed.

CLEMENS and GUNN, JJ., concur.


author: STEWART, Judge.

text:
    Richard C. ZIEBELL, Petitioner-Appellant, v. Joyce E. Ziebell McCLURE, Respondent.
    No. 39443.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.
    Application to Transfer Denied April 10, 1979.

      Murry A. Marks, Clayton, for petitioner-appellant.
    James F. Koester, St. Louis, for respondent.
   STEWART, Judge.

Richard C. Ziebell (husband) appeals from the judgment of the trial court denying his motion to modify decree of dissolution so as to eliminate maintenance awarded to Joyce E. Ziebell McClure (wife).

We affirm.

The four year marriage of husband and wife was dissolved on May 7, 1975. The proceeding for dissolution was uncontested. The parties informally agreed that wife should receive the sum of $1,200.00 in gross, $300.00 per month maintenance and $600.00 attorney fee. The court entered a decree in accordance with the request of the parties.

Husband filed a motion to modify on December 30, 1976, approximately a year and a half after the marriage was dissolved. He alleged that wife was gainfully employed with earnings sufficient to sustain herself and that husband had remarried and as a result had added financial responsibilities. Wife filed a counter motion seeking an increase in maintenance.

In the year 1975 husband had a gross income of $34,596.00 with a net, after business expenses, of $27,552.00. In 1976 he had a gross income of $40,452.00. His testimony indicated that his net income would be $23,543.00. Husband has three daughters by a previous marriage. One of the daughters is emancipated.' He pays support of $100.00 per month for each of the younger girls and an additional $1,680.00 per year for educational expenses for the second child. He listed his living expenses at $1,795.00. These included the child support, payment of a debt to his father and the payment of maintenance to wife. His present wife, whom he married on December 23, 1976, assists with household expenses and is not a financial burden.

Wife had been employed prior to the marriage and earned $500.00 per month. She was not employed during the marriage. At the time of the hearing on the motion wife was employed as a bookkeeper with an income of $9,825.00 per year. Her gross pay per month was $818.75. Her monthly net was $575.00. She testified to specific increases in the cost of food, utilities, insurance and other items for a total increase of approximately $185.00 per month.

The parties had lived in the home owned by wife upon which there was an obligation of $17,000.00.

The court denied husband’s motion to modify and wife’s request for attorney fees. It also denied wife’s motion to modify.

The court was not asked to make findings of fact and conclusions of law and no findings and conclusions were made. Factual issues are deemed to be found in accordance with the result reached. In Re Marriage of Prenavo, 556 S.W.2d 463, 465 (Mo.App.1977). Our review is further governed by the principles of Murphy v. Carron, 536 S.W.2d 30 (Mo.1976), which have been so often repeated that they need no exposition here.

We agree with husband, as conceded by wife, that the award of maintenance in this case is decretal and not contractual, and that it is subject to modification. To warrant modification of a decree awarding maintenance there must be “a showing of changed circumstances so substantial and continuing as to make the terms [of the decree] unreasonable.” § 452.370. The award of maintenance as agreed upon by the parties is res judicata as to the need for maintenance in accordance with the formula of § 452.335.1(1), (2). Seelig v. Seelig, 540 S.W.2d 142 (Mo.App.1976).

The burden was upon the husband to show a change in circumstances such as would warrant elimination of maintenance to wife. Seelig.

It is clear, as noted by the trial court, that the award of $300.00 per month maintenance was not intended to meet wife’s reasonable needs. It was contemplated that wife would return to work and that the maintenance would supplement her income toward meeting her reasonable needs. This is borne out by the testimony of husband at the dissolution hearing. His counsel asked: “And you do understand that the three hundred dollars a month will continue after she goes to work and earns her own money?” Husband answered: “Unless she gets married or something.”

In 1970, before the marriage, wife had been earning approximately $500.00 per month. At the time of the motion to modify in 1977 she was earning a little over $800.00 per month with a take home pay of $575.00 per month. Considering the inflationary state of the economy her present rate of pay is comparable to her rate of pay in 1970. The parties in agreeing upon the amount of decretal maintenance understood that wife was employable and capable of earning an amount comparable to that which she had earned before marriage. The court could reasonably find that there had been no substantial change in wife’s situation so as to make the terms of the decree unreasonable.

Husband would argue that he has had a decrease in income. In his brief he states that his net income after business expenses in 1975 was $27,552.00 before a tax refund of $625.00, and that his net income for 1976 was $23,543.39. We note from husband’s tax return for 1975 that he had a gross income of $34,596.80 with business expenses of $7,044.52 resulting in the net income of $27,552.28. With respect to 1976, husband testified, “I have a breakdown on my gross, your Honor, of net income after business expenses was $23,543.39. My gross income was $40,452.73, less taxes and then less my business expenses.” Subsequently the court questioned husband as follows:

“Q. (by the court) The only thing we wanted to know is in 1976 your gross income was about $40,453? A. That is correct.
Q. And you had business expenses, however, in 1976 of approximately 68—
A. That is based on the — I haven’t completed my 1976 income tax forms yet, but that is based on what I have out of my ledger sheet that I maintain.
Q. Those are the expenses you are going to claim?
A. Yes; plus there are a few other miscellaneous ones.
Q. All right. About $6,859; is that correct?
A. That is correct, sir.”

In comparing the income for 1975 and 1976 the same criterion for determining net income should be used. In 1975 the criteria was gross income less business expenses resulting in a figure of $27,552.00 which husband termed his net income. Using the same criteria for 1976, reducing the gross of $40,453.00 by $6,859.00, the resulting figure would be $33,594.00.

Husband, a salesman, is given a base salary plus 2% of his sales for each month and a percentage of the margin of profit for each quarter of the year. His income and expense statement filed on February 21, 1977 shows monthly gross income before taxes, of $2,336.94 or an annual gross of $28,-043.28. This could not be based on the previous year’s income of $40,453.00. The only possible explanation that would be apparent to the trial court is that this figure represented husband’s income for the first month of the year 1977. This figure, of necessity, could not have included the percentage of net income for the first quarter of 1977.

Husband’s income and expense statement lists his monthly take home pay after taxes and business expenses as $1,961.86. We have extended this amount for a twelve month period and noted that the figure of $23,542.32 is practically the same figure given in husband’s brief as his net income for 1976. This may account for an apparent misunderstanding when husband first testified to a net of $23,543.00 on gross income of $40,453.00.

Even taking the view most favorable to husband, with a net income of $1,961.86 per month husband lists his monthly expenses at $1,795.00. His monthly expenses include the payment of maintenance in the same of $300.00. It thus appears that husband can meet his own needs and still meet the needs of wife. See Seelig, supra.

The trial court could reasonably find that there had been no substantial and continuing change as to wife’s needs, her ability to meet those needs as reasonably anticipated by the parties or in husband’s ability to meet those needs. See Plattner v. Plattner, 567 S.W.2d 139 (Mo.App.1978) and Seelig, supra.

The judgment of the trial court is affirmed.

STEPHAN, P. J., and KELLY, J., concur.


author: BILLINGS, Judge.

text:
    WHALEN CONSTRUCTION AND EQUIPMENT COMPANY, INC., Plaintiff-Respondent, v. GRANDVIEW BANK AND TRUST COMPANY and Robert B. Riss, as Executors of the Estate of Richard R. Riss, Sr., Robert B. Riss and Louise Wells, Individually, and Robert B. Riss and Grandview Bank and Trust Company, as Trustees under the Will of Richard R. Riss, Sr., Defendants-Appellants.
    Nos. 10531, 10543.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 20, 1979.
    Thomas E. Ruzicka, Olathe, Kan., John W. Fink, Joplin, for plaintiff-respondent.
    Robert C. Barry, Kansas City, for defendants-appellants.
   BILLINGS, Judge.

Suit in quantum meruit and for mechanic’s lien for improvements to land. Counterclaim for breach of contract. Trial was to the court and plaintiff was awarded damages and a lien. Judgment was entered against defendant on his counterclaim. Both parties appealed. We reverse the judgment entered on plaintiff’s petition and affirm as to the counterclaim.

Plaintiff is a Kansas corporation, solely owned by Earl Whalen, with its principal place of business at Shawnee, Kansas. The corporation engages in various types of construction work, including the building of lakes and dams. Defendant, a Missouri resident, owned several ranches in southwest Missouri in Dade and Barry counties.

Plaintiff’s president, Whalen, learned defendant was interested in having dams constructed on his ranches- and contacted defendant. Thereafter, Whalen met with defendant at the latter’s Dade County ranch. This meeting resulted in an agreement for plaintiff to perform dam work for defendant, certain terms and conditions having been agreed upon. The trial testimony was in conflict as to what agreement was actually reached between the parties and it appears that they contemplated the execution of a written agreement embodying the terms and conditions. Shortly after the oral agreement was made, plaintiff moved equipment to the Dade County dam site and sent a crew of men to commence work. After some work had been performed, but before completion of the dam, Whalen and defendant became engaged in a verbal war as to what they agreed to initially and as a result plaintiff stopped work and removed his crew and equipment from defendant’s premises. This suit followed.

By an unavailing motion to dismiss plaintiff’s claim and as an affirmative defense, defendant challenged plaintiff’s standing to maintain its suit, contending that plaintiff’s noncompliance with Missouri statutes [§ 351.570-351.650, RSMo 1969 & Supp. 1975] governing foreign corporations doing business in this state was expressly penalized by § 351.635. The pertinent part of that statute provides: “[N]o foreign corporation, failing to comply with this chapter, can maintain any suit or action, either legal or equitable, in any of the courts of this state, upon any demand, whether arising out of the contract or tort, while the requirements of this chapter have not been complied with.”

In his appeal, defendant continues to advance the foregoing contention. On the other hand, plaintiff completely ignores the issue even though at trial it stipulated it was a noncomplying foreign corporation. Plaintiff’s brief does not address the question and has made no response to the point raised in defendant’s brief.

On the record presented and the law applicable to a decision, we conclude defendant’s position is well taken and § 351.635 bars maintenance of plaintiff’s claim. The initial-agreement which sparked this litigation had its beginning in Dade County, Missouri. Plaintiff’s proposed written agreement, executed by it but rejected by defendant, called for plaintiff to construct a total of four dams in Dade and Barry Counties. Pursuant to the oral agreement, plaintiff caused various articles of its construction equipment to be moved to the Dade County dam site and furnished a crew to operate the equipment.

The general rule is that a foreign corporation which engages in doing construction work within the state becomes subject to state laws regulating the doing of business therein by foreign corporations. “The performance of such work is not deemed to fall within the rule that a single or isolated transaction will not amount to doing business. Nor is it taken out of the scope of the statutes regulating the doing of business, by virtue of the commerce clause, merely because supplies, materials, and articles involved in the work, and laborers to perform it, are, as provided in, or contemplated by, the contract, brought in from other states, since that they may be regarded as an incident of a contract for labor within the state . . ..” 36 Am. Jur.2d, Foreign Corporations, § 351 (1968); Annot., 55 A.L.R. 726 (1928); Kansas City Structural Steel Co. v. Arkansas, 269 U.S. 148, 46 S.Ct. 59, 70 L.Ed. 204 (1925); and see Western Outdoor Advertising Co. v. Berbiglia, Inc., 263 S.W.2d 205 (Mo.App.1953).

We hold plaintiff’s failure to comply with the statutes governing foreign corporations doing business in this state precludes maintenance of its claim against the defendant and that the trial court erred in not sustaining defendant’s motion to dismiss the petition.

Western Outdoor Advertising Co., supra, is authority for the proposition that a counterclaim can be maintained against a noncomplying foreign corporation and, accordingly, we have reviewed the evidence on the counterclaim in view of defendant’s averment that the court below erred in entering judgment for plaintiff. The trial judge was at liberty to believe or disbelieve the proffered testimony in support of the counterclaim. Our review leads to the conclusion there was substantial evidence to support the court’s judgment and no error of law appears.

The judgment entered in favor of plaintiff on its petition is reversed and the petition ordered dismissed. The court’s ruling on the counterclaim is affirmed pursuant to Rule 84.16(b).

HOGAN and TITUS, JJ., concur.

MAUS, J., not participating.

      . Since this appeal defendant R. R. Riss, Sr. has died and the parties shown as defendants have been substituted. For brevity, “defendant” as used in this opinion refers to R. R. Riss, Sr.


text:
    Larry GILMORE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40343.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 21, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.
    Application to Transfer Denied April 10, 1979.

      Gary L. Robbins, Public Defender, Jackson, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Brenda Farr Engel, Asst. Attys. Gen., Jefferson City, Bradshaw Smith, Pros. Atty., Cape Girardeau, for respondent.
   CRIST, Judge.

On November 7, 1977, movant pled guilty to armed robbery. He was sentenced to a prison term of fifteen years.

Movant has now appealed denial of his Rule 27.26 motion without a hearing. He claims that he was deprived of effective assistance of counsel in that counsel failed to adequately investigate his case, did not interview defense witnesses, including his alibi witness, and in general failed to explore the defense of alibi. He also claims that counsel misrepresented to him that his “co-defendant and potential ‘alibi’ witness” would testify for the State.

The appeal must be denied. These contentions come within the rule that once a guilty plea has been entered the effectiveness of counsel is reviewable only to the extent it affected the voluntariness and understanding of the plea. Morris v. State, 552 S.W.2d 243 (Mo.App.1977). Contentions such as these relative to failure to interview witnesses and statements concerning evidence that would have been introduced at trial have been held not to warrant vacation of a plea otherwise voluntarily and understandingly made. See Bolin v. State, 552 S.W.2d 58, 59 (Mo.App.1977); Taylor v. State, 539 S.W.2d 589, 590 (Mo.App.1976).

The record further shows that an evidentiary hearing was not required because movant’s allegations were refuted by the plea hearing record in the trial court. Perry v. State, 565 S.W.2d 464 (Mo.App. 1978). At the guilty-plea proceeding the court meticulously established that defendant knowingly, understandingly, and voluntarily entered his plea of guilty. He was represented both by his own retained counsel, an Illinois lawyer, and by a public defender appointed by the court to insure the presence of a local lawyer. At the hearing movant stated that he was guilty of the charge of armed robbery in that he had participated in its planning, he had furnished a gun to his accomplice, that he was to be entitled to a share of the profits, and that he was about a block away at the time of the actual robbery. He acknowledged that his attorney had done all that he had wanted him to do and that he was satisfied with his services. He had not been threatened or forced in any way and his plea of guilty was freely and voluntarily entered. Movant, in addition, presented a verified petition to the trial court in support of his statements made at the plea hearing. It recounted his satisfaction that retained counsel had done all that he could in the case and that defendant had joined in the planning and preparation of the armed robbery.

Movant relies on Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973). However, in Fontaine the defendant was not represented by counsel at the guilty-plea proceeding. Further, petitioner therein alleged direct acts of coercion going to the voluntariness of the plea that were not refuted by the record. See also Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).

The trial court did not err in denying movant’s motion without an evidentiary hearing.

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: COOPER, Justice. COOPER, Justice.

text:
    James A. TRUAN, Petitioner, v. Terry K. SMITH and Roy S. Smith, Respondents.
    Supreme Court of Tennessee.
    Feb. 12, 1979.
    Rehearing Denied March 19, 1979.

      W. P. O’Neil, O’Neil, Parker & Williamson, Knoxville, for petitioner.
    Oliver A. Smith, III, James W. Justice, Knoxville, for respondents.
   OPINION

COOPER, Justice.

This is an action by a patient and her husband against a treating physician for damages alleged, to have been the result of malpractice by the physician in the examination, diagnosis and treatment of breast cancer. The trial court approved a jury verdict awarding the patient, Terry K. Smith, $150,000.00 in damages, and her husband $35,000.00, and entered judgment in accord with the verdict. The Court of Appeals, with one judge dissenting, concluded there was material evidence to support the verdict of the jury and that no prejudicial error was committed, either in the admission of evidence or in instructions to the jury, and affirmed the judgment. We granted certiorari primarily to examine the record to ascertain whether it discloses evidence of malpractice on the part of Dr. James A. Truan, which proximately caused or accelerated the death of Mrs. Smith.

In reviewing a case where the judgment is based on the jury’s verdict, we do not weigh the evidence to determine the preponderance thereof, nor do we decide the credibility of witnesses. McAmis v. Carlisle, 42 Tenn.App. 195, 300 S.W.2d 59 (1956). Our review is limited to a determination of whether there is any material evidence to support the verdict, and “it [our review] must be governed by the rule, safeguarding the constitutional right of trial by jury, which requires us to take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict.” D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897 (1947). If there is material evidence to support the verdict, we are required to affirm it. City of Chattanooga v. Ballew, 49 Tenn.App. 310, 354 S.W.2d 806 (1961), and numerous cases there cited.

Considering the evidence in this cause in the light of the above authorities, we find that Dr. Truan, who had treated members of the Smith family since 1966, became the complete family physician for the Smith family on November 13, 1973, when he accepted responsibility for Mrs. Smith’s gynecological care. The initial physical examination given Mrs. Smith revealed no abnormalities or conditions worthy of comment, except the fact that Mrs. Smith had had implants inserted in her breasts in 1962 for cosmetic purposes. In January or February of 1974, Mrs. Smith noticed a change in the size and firmness of her left breast, which she attributed to the implant. Her breast continued to increase in size and firmness, and there was discoloration in the nipple area and pain on pressure. On March 25, 1974, while being examined by Dr. Truan for a stomach or colon disorder, Mrs. Smith called Dr. Truan’s attention to her breast and her symptoms but received no significant response from him. Dr. Truan made no examination of the breast at that time.

Mrs. Smith testified that the changes in her breast became more noticeable with the passage of time, and that she called the changes to the attention of Dr. Truan for the second time on May 6, 1974. Dr. Truan’s records show that Mrs. Smith then was complaining of discoloration in the nipple area, discomfort, numbness and sharp pain in her left breast. Dr. Truan examined the breast using the palpation method and discovered no discoloration, but did find there had been a 10 to 15 percent enlargement of the left breast since November, 1973. He found no delineated mass or lump, though the breast as a whole was larger and firmer than the other breast. Dr. Truan testified that “more material [was] palpable in the left side than in the right” but that the left breast was best described as “more like a swollen or enlarged area.”

On the basis of the examination, Dr. Truan made a “differential” or “working” diagnosis that Mrs. Smith’s complaints were attributable to either (1) foreign body reaction, (2) mastitis, (3) carcinoma, (4) benign tumor, or (5) fibrocystic disease. This “differential” diagnosis was not communicated to Mrs. Smith. Dr. Truan did advise Mrs. Smith to observe the left breast for 30 days for a change in symptoms and gave her an appointment for June 3, 1974. Mrs. Smith testified that Dr. Truan also stated he would consult with a plastic surgeon regarding implant behavior. No comment was made concerning the possibility of cancer.

During the 30 day observation period, Mrs. Smith noticed no change in her symptoms. On the morning of the appointment, she called Dr. Truan’s office, informed the nurse that there had been no change in her symptoms since her examination by Dr. Truan and asked if she should keep the appointment. According to Mrs. Smith,

They said they would give him the message, and I was left with the assumption that if it was necessary for me to go on in somebody would call me back.

No one from Dr. Truan’s office ever called Mrs. Smith.

In late June, Mrs. Smith’s symptoms became more acute, the pain became more intense and a rash appeared on her left breast. She called Dr. Truan’s office, found that he was out of the city at a medical convention, and was given an appointment for July 8th. In the following week, when the symptoms did not subside, Mrs. Smith made an appointment with a plastic surgeon, Dr. Knowling, for July 10th.

When Dr. Truan examined Mrs. Smith on July 8th he noted in his records that she had more swelling and tenderness in the left breast. Mrs. Smith testified that when Dr. Truan examined her, the left breast was feverish, the nipple area was noticeably darker, a rash was beginning to appear, and a slightly hard mass was present directly behind the nipple. Dr. Truan performed no tests on this examination, explaining that Mrs. Smith was to see a specialist in two days.

Dr. Knowling, on examining Mrs. Smith on July 10th, had her admitted to St. Mary’s Hospital, where a mammogram revealed the mass in the breast. A biopsy was performed which confirmed that the mass was malignant. A radical mastectomy was performed by Dr. Whittington on July 18th. The cancerous mass removed from the breast was 3.5 to 4.5 centimeters in size, Microscopic analysis of Mrs. Smith’s lymph nodes revealed metastasis from the primary breast cancer to 24 of the 40 lymph nodes.

Dr. Cyril H. Wecht was convinced from the size of the tumor removed on July 18, 1974, and the smallness of Mrs. Smith’s breast, that the tumor was palpable in November, 1973, when Dr. Truan undertook to give Mrs. Smith a complete physical examination, in March, 1974, when Mrs. Smith called Dr. Truan’s attention to changes in her breast, and certainly on May 6, 1974, when Dr. Truan first examined Mrs. Smith’s breast.

Dr. Wecht and Dr. Thompson expressed the opinion the cancer had not metastasized at the time of the examination on May 6th, 1974. Dr. Wecht also expressed the opinion that having embarked on a “wait and see” program as an aid in diagnosis of changes in a patient’s breast, the doctor should follow his patient.

The record further shows that following the mastectomy, Mrs. Smith was treated by radiation and chemotherapy. She also had a therapeutic hysterectomy. In addition she was hospitalized on several occasions for the removal of fluid from her lungs, and underwent a pericardiectomy to relieve pressure from the accumulation of fluid around the heart. The excess fluids resulted from the cancer.

At the time of the trial, Mrs. Smith’s prognosis was poor and, in fact, she died from cancer within weeks of the conclusion of the trial.

A physician is under the duty to exercise reasonable and ordinary care and diligence in the exertion of his skill and the application of his knowledge, and is required to exercise his best judgment as to the treatment of the case intrusted to him. See Blankenship v. Baptist Memorial Hospital, 26 Tenn.App. 131, 168 S.W.2d 491 (1942). Where there is a difference of opinion among physicians as to the treatment to be given in a particular case, a physician is not guilty of malpractice if he follows the course of treatment advocated by a considerable number of physicians of good standing. Ball v. Mallinkrodt Chemical Works, 53 Tenn.App. 218, 381 S.W.2d 563 (1964); McPeak v. Vanderbilt University Hospital, 33 Tenn.App. 76, 229 S.W.2d 150 (1950); Blankenship v. Baptist Memorial Hospital, supra. A caveat or limitation in the application of this rule is set out in Casenburg v. Lewis, 163 Tenn. 163, 40 S.W.2d 1038 (1930), as follows:

It is the physician’s privilege to decide between one of two or more courses in the treatment of his patient and, as said by the Court of Appeals, he could not be held responsible for an erroneous exercise of judgment. That rule is subject, however, to the limitation that before exercising judgment the physician should inform himself by proper examination so as to ascertain the facts and circumstances on which a reasonable exercise of judgment might rest, (emphasis supplied)

There was a consensus among the physicians testifying that when changes in the breast of a patient are noted by a physician on examination, or are called to the physician’s attention by a patient, one of several acceptable medical procedures is for the doctor to observe the patient for a period of time, variously fixed by medical witnesses at from four to eight weeks, and to predicate his later actions on what he observes. Dr. Wecht indicated that the kind and severity of symptoms relative to the breast have an impact on the need for and time to be devoted to observation of symptoms before the physician moves on to other diagnostic procedures.

There also was a consensus among the physicians that testified that the earlier cancer is treated the better the prognosis of the patient, and that the patient’s chances for survival decline drastically on the metastasis of the cancer. This, of course, places a premium on early and correct diagnosis and treatment of cancer in a patient.

Dr. Truan insists that since the procedure he followed after the May 6, 1974, examination — of instituting an observation period — was an accepted medical procedure, he cannot be guilty of malpractice and that a verdict must be directed for him. We disagree. Dr. Truan’s contention makes no allowance for his actions, or lack of action, prior to May 6, 1974, nor for his failure to follow up on the observation period instituted by him on May 6th. The jury had before it testimony that the mass in Mrs. Smith’s breast was of sufficient size to be palpable by a competent physician as early as November 12, 1973 — and, of course, at all times thereafter — but that Dr. Truan failed to detect the mass when he examined her breast in November. In addition, there was testimony that Dr. Truan took no action on Mrs. Smith’s report to him, on March 25, 1974, that she had noticed marked changes in her left breast, when, as was previously mentioned, the consensus of medical testimony was that, on learning of such changes, a physician should make some effort to determine their cause. Finally, there Was medical testimony that metastasis had not occurred on May 6, 1974, and that, had the cancer been treated before that date, Mrs. Smith’s chances of either remission or recovery would have materially increased. From these facts, we think the jury reasonably could conclude that, in failing to detect the breast mass when he had an opportunity to do so on both November 12, 1973, and March 25, 1974, and in failing to act on the patient’s complaints on March 25, 1974, Dr. Truan did not exercise that degree of care and diligence required of him in providing medical care to Mrs. Smith, and that this lapse either materially increased the chances of or accelerated Mrs. Smith’s death.

We are also of the opinion — as was the majority of the Court of Appeals— that the jury reasonably could find that Dr. Truan was guilty of actionable negligence in failing to follow his patient through and after the period of observation prescribed by him at the time of the May 6th examination. Dr. Truan testified he thought the condition he found on examination of Mrs. Smith “could be, probably” serious. Despite this belief, he did not’ inform Mrs. Smith that cancer was a possible cause of her complaints, nor did he make any effort to see that Mrs. Smith returned for evaluation at the end of the observation period. This theory was submitted to the jury, as was the issue of whether Mrs. Smith was guilty of contributory negligence in failing to keep the June 3,1974, appointment. The jury resolved both issues in favor of Mrs. Smith and the findings, in our opinion, are supported by evidence.

Several assignments of error questioning the admission in evidence of answers of expert witnesses to hypothetical questions, instructions to the jury, and the refusal of the Court of Appeals to consider action of the Tennessee Board of Medical examiners against a medical witness subsequent to the trial in this cause, also were included in the petition for certiorari. We have reviewed these assignments since they could conceivably affect the issue of whether there is material evidence to support the jury’s verdict against Dr. Truan. On doing so, we concluded that the Court of Appeals correctly ruled on each of the assignments.

Judgment affirmed. Costs are adjudged against Dr. James A. Truan and his surety.

FONES, BROCK and HARBISON, JJ., and ALLISON B. HUMPHREYS, Special Justice, concur.

OPINION ON PETITION TO REHEAR

COOPER, Justice.

Dr. James A. Truan has filed a petition to rehear taking issue with this court’s holding that the evidence supports the jury’s finding that petitioner was guilty of malpractice which proximately caused or accelerated the death of Mrs. Smith. Petitioner’s attack on the holding is two pronged. First, petitioner insists the Court of Appeals exonerated him of negligence in the treatment of Mrs. Smith up to and including May 6, 1974, and, absent an assignment of error by respondent directed to this holding, this court is limited to consideration of evidence of negligence from and after May 6, 1974. Second, petitioner insists there is no material evidence to support a finding that the activities after May 6, 1974, proximately caused or proximately contributed to respondent’s damages. Both of these issues were considered by this court in affirming the judgment of the Court of Appeals, and were decided adversely to petitioner. In our opinion, the petition and briefs filed in this court — as did the assignments of error in the Court of Appeals — fairly presented the issue: Does the record contain evidence of malpractice on the part of petitioner which proximately caused or accelerated the death of Mrs. Smith? Of necessity, the resolution of the issue required this court to review all evidence, not just the evidence the Court of Appeals concluded supported the jury’s verdict. On doing so, we found ourselves in agreement with the Court of Appeals that the jury reasonably could conclude from the evidence that petitioner was guilty of “actionable negligence in failing to follow his patient through and after the period of observation prescribed by him at the time of the May 6th examination.” We also concluded that the evidence of treatment prior to May 6th, 1974, detailed in the opinion of the court, would support the jury’s finding that Dr. Truan did not exercise that degree of care and diligence required of him in providing medical care to Mrs. Smith and that his failure to do so either materially increased the chances of or accelerated Mrs. Smith’s death. We still are of the opinion that there is material evidence in the record to support the jury’s finding that Dr. Truan was guilty of malpractice which proximately caused or accelerated the death of Mrs. Smith.

The petition to rehear is denied. Costs incident to the filing of the petition are adjudged against petitioner and his surety.

FONES, BROCK and HARBISON, JJ., and ALLISON B. HUMPHREYS, Special Justice, concur.


author: HENRY, Chief Justice. FONES, Justice,

text:
    Carolyn Tramill MOORE et al., Petitioners, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    March 5, 1979.

      J. Fred Friedman, Memphis, for petitioners.
    Brooks McLemore, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Hugh Stanton, Jr., Dist. Atty. Gen., James W. Harrison, Asst. Dist. Atty. Gen., Memphis, for respondent.
   OPINION

HENRY, Chief Justice.

This is another case involving a construction of the somewhat nebulous provisions of § 40-1131, T.C.A. While the entire section is involved, we are particularly concerned with the limitations set forth in the last sentence of the second paragraph.

This issue arose in a case in which criminal defendants were indicted during a continuance of their preliminary hearing, but more than thirty (30) days after their initial arrest.

In sustaining a plea in abatement the trial judge held that the 30 day limitation began to run in this case upon the defendants’ arrest pursuant to capias. The Court of Criminal Appeals reversed, holding that the time began to run on the date of initial arrest on warrant. We granted certiorari to construe the somewhat troublesome and ostensibly ambiguous language of this statute.

While we do not agree with the trial judge in holding that the time limitation begins to run with arrest on capias, neither do we agree with the Court of Criminal Appeals that the limitation of the statute demands, without qualification, and under all circumstances, that a criminal defendant loses his statutory right to a preliminary hearing, through no fault of his own, and by virtue of the passage of time alone. Accordingly, we reverse.

I.

Procedural Background

Petitioners were arrested on or about June 1, 1975, on an arrest warrant, issued after the execution of a search warrant.

Three versions of what transpired at the preliminary hearing on June 11, 1975 appear in the record. All are consistent.

Counsel for petitioners, by affidavit, says that he appeared in General Sessions Court for the purpose of participating in the preliminary hearing. Under his version:

They were arrested pursuant to a Search Warrant . . . authorizing a search for a defendant male white known as “Chickenhawk” who is five (5) feet eleven (11) inches tall, 165 pounds, medium build and brown hair. The officer who executed the Search Warrant and was in a position to testify personally to the material facts was not present or available. Counsel objected to hearsay testimony. The Court was displeased. The Attorney General threatened to have the matter taken to the Grand Jury pending the preliminary hearing. The matter was reset as best I recall until December of this year; the date is not clear, A preliminary hearing was demanded, and the matter was submitted to the Grand Jury while the preliminary hearing was being continued. (Emphasis supplied)

The Assistant District Attorney General’s version corroborates counsel for petitioners:

The preliminary hearing was continued till June the 11th, 1975. At that time the State attempted to put on hearsay proof. Mr. Friedman objected. There was a disagreement between the. Judge, Judge Stinson and Mr. Friedman, as to the sufficiency of the evidence at the preliminary hearing, at which point the case was reset indefinitely according to what our proof will show. Subsequently to that, on October 7, 1975, these two defendants were indicted. . . . (Emphasis supplied)

The trial judge’s finding, specifically verified by the Assistant District Attorney General:

[According to the affidavit, of Mr. Friedman’s, that they were taken before Judge Stinson. Even though their names were not on the search warrant, they were arrested by the officers who executed the search warrant and evidently were charged with an offense. And . Mr. Friedman at that time . . . demanded a preliminary hearing. And the Attorney General threatened to have the matter taken to the Grand Jury pending the preliminary hearing. And he did in fact do that. The Judge granted a continuance in the case and while the preliminary hearing was pending, the case was taken before the Grand Jury.
* * * * * *
Am I correct about that Gentlemen?

The Assistant District Attorney General answered in the affirmative and then addressed the court, making the representation heretofore quoted along with others.

Six facts are clear from this record:

First, the petitioners were arrested on warrants.

Second, they demanded a preliminary hearing.

Third, the State sought to present hearsay testimony:

Fourth, Counsel for petitioner objected. Fifth, the case was continued indefinitely-

Sixth, during the continuance, petitioners were indicted.

Thus the posture of the case was that they had no reason for a motion to abate until the 30-day limitation technically had expired. Petitioners were indicted on October 7, 1975. Capias was issued on October 8, 1975 and served on October 9, 1975. They filed their motions to grant a preliminary hearing and/or to abate the indictment on October 10, 1975, one day after service of the capias and two days after indictment.

Under these circumstances, the trial judge abated the indictment and remanded to the General Sessions Court for a preliminary hearing. The Court of Criminal Appeals reversed.

II.

Sec. 40-1131, T.C.A.

This section, at all times pertinent to this inquiry, read as follows:

In all criminal cases, prior to presentment and indictment, whether the charge be a misdemeanor or a felony, the accused shall be entitled to a preliminary hearing upon his request therefor, whether the grand jury of the county be in session or not.
If the accused is indicted during the period of time in which his preliminary hearing is being continued, or at any time before accused has been afforded a preliminary hearing on a warrant, whether at his own request or that of the prosecutor. he may abate the indictment upon motion to the Court. PROVIDED, HOWEVER, THAT NO SUCH MOTION FOR ABATEMENT SHALL BE GRANTED AFTER THE EXPIRATION OF THIRTY (30) DAYS FROM THE DATE OF ACCUSED’S ARREST. (Underscored matter was deleted by Ch. 760, Acts of 1976; capitalization is for emphasis)

It is settled law in this jurisdiction that while a preliminary hearing is not constitutionally required, it is a critical stage of a criminal prosecution mandated by statutory law, and is an adversary proceeding at which the usual rules of evidence apply. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Waugh v. State, 564 S.W.2d 654 (Tenn.1978); McKeldin v. State, 516 S.W.2d 82 (Tenn.1974).

It is equally well settled that a preliminary hearing is mandated only in those cases wherein the defendant has been arrested — with or without a warrant — and is not a demandable right where the prosecution originated by presentment or indictment. It is the prerogative of the District Attorney General and law enforcement personnel to omit the arrest procedure and take prosecutions directly to the grand jury. Vaughn v. State, 557 S.W.2d 64 (Tenn.1977); Harris v. State, 534 S.W.2d 868 (C.C.A.Tenn.1975).

The first paragraph of § 40-1131, T.C.A. originated in Chapter 245, Acts of 1971. It mandates a preliminary hearing irrespective of the convention of the grand jury. The same act repealed Chapter 16 of the Acts of 1899, appearing as Section 11575 in Williams Tennessee Code and in the Code Supplement of 1950 as § 40 — 402 (original volume), which provided, in substance, that if the grand jury was in session the justice of the peace could only try the case upon a plea of guilty. Absent such plea he could only take bond pending an investigation by the grand jury. Thus § 40-1131, T.C.A. was intended to insure that a criminal defendant obtain a preliminary hearing, without regard to grand jury sessions.

The second paragraph of § 40-1131, T.C.A. simply provides a mechanism for the enforcement of a right to a preliminary hearing. It is the last sentence that creates the difficulty:

Provided, however, that no such motion for abatement shall be granted after the expiration of thirty (30) days from the date of the accused’s arrest.

When consideration is given to the context of this section, and to its historic purpose, the word “arrest” must be construed to mean a conventional arrest, with or without a warrant and prior to indictment. To construe this to mean and include arrest on capias does violence not only to the plain intent of the statute and its manifest purpose, but also to our statutory scheme wherein a capias serves a specified and unique purpose.

Under our criminal procedure, a ca-pias is a mesne or intermediate process having the sole purpose of securing the presence of the defendant. When a defendant has been arrested, and placed in jail or released on bond, and bound to the grand jury, no process is necessary to bring him in following an indictment. It is only when he is not in actual custody, or on bond, or on his own recognizance, or when bail has been forfeited, or recognizance has been revoked, or there is a void or voidable bond, that a capias issues. §§ 40 — 1901, 40 — 1902, T.C.A. Thus a capias may or may not issue following indictment.

The effect of holding that the words “arrest” and “capias" are synonymous would be to place defendants on a different legal footing, depending upon the issuance of a capias.

But this does not end the inquiry.

The statute articulates loudly and clearly the public policy of this state that a preliminary hearing is mandatory without regard to the convention of the grand jury. To accomplish this purpose it provides for an abatement if an indictment is returned during the period of time in which the preliminary hearing is being continued, or before a defendant has been afforded a preliminary hearing. However, it further provides that no indictment shall be abated unless within thirty (30) days after the initial arrest.

It is our duty to construe this statute with the saving grace of common sense. The legislature obviously intended to afford a preliminary hearing but did not intend to sanction dilatory action and placed a heavy penalty on delay. But the statute must be given a reasonable construction and one by which it may be upheld. Obviously, the Court may not take a seasonably made motion under advisement, hold it until the thirty (30) days shall have expired, and then use the limitation to defeat an otherwise meritorious motion.

In the instant case, the record shows that a preliminary hearing was scheduled ten (10) days after arrest. The prosecution “attempted to put on hearsay proof” and the case was reset indefinitely.

The statute contemplates good faith. The defendant had a right to assume that his re-scheduled hearing would be conducted. He had a right to demand that a lawful preliminary hearing be conducted. He had a right to assume that public officials would perform their sworn duty.

In the leading case of Waugh v. State, supra, we held unequivocally that “probable cause to bind over the defendant to the grand jury must be based upon legally competent evidence which would be admissible at trial.” (Emphasis supplied) Otherwise, we said, “the hearing will fail in its function of screening out unfounded charges.” 564 S.W.2d at 659.

While the record is meager in this respect, it is patently obvious that this case raised critical evidentiary questions. There were serious questions about the validity of the search. The seizure was in doubt. Petitioners did not have a possessory interest in the searched premises and their connection therewith was open to question. This was a typical case wherein a careful, adversary-type preliminary hearing was demanded.

For us to hold that a criminal defendant who is denied a valid preliminary hearing, is promised a future hearing, and is thereafter indicted pending that hearing, may not proceed under § 40-1131, T.C.A. would make a mockery out of the clear mandate of our statute and would place the imprimatur of this Court upon raw, arbitrary, and unrestrained circumvention of the orderly processes of our Court.

We hold that the 30-day limitation imposed by the last paragraph of § 40-1131, T.C.A. is applicable only when all parties— including the defendant, who must act promptly — have acted in good faith and in compliance with the statute. The failure of the court or the prosecution to exercise good faith and to abide the law operates to toll the statute and preclude its invocation. Any other construction would emasculate the statute and nullify the intent of the legislature. The result would be that the State would have a death grip on preliminary hearings. The circumvention of the statute and the defeat of the defendant’s right to a preliminary hearing would be the inevitable result.

We reiterate that in this case petitioners were indicted at a time when they had been led to believe they would be given a preliminary hearing and after the 30 days had passed. Sanctioning such procedure would be callous and unconscionable.

While the trial judge technically was incorrect, it is clear from the record that he recognized the manifest injustice of the State’s position. The decision of the Court of Criminal Appeals is reversed, the indictment is vacated and the petitioners will be afforded an immediate and valid preliminary hearing, if the State elects to proceed with this prosecution.

COOPER, BROCK and HARBISON, JJ., concurring.

FONES, J., dissenting.

FONES, Justice,

dissenting.

I dissent.

Construing T.C.A. § 40 — 1131, the majority held in Waugh v. State, 564 S.W.2d 654 (Tenn.1978), that when proceedings begin with a presentment or an indictment without the accused being in custody or upon bail for the offense charged, the accused is not entitled to a preliminary hearing. In short, a preliminary hearing is available only when the first step in the prosecutorial process is an arrest, with or without a warrant. I concurred in that part of the opinion.

In Waugh the Court expressly pretermit-ted any consideration of the issue that confronts us in this case, referring to it as the “curious time limitation contained in the last sentence of T.C.A. § 40 — 1131.” Id. at 661.

Here, that “curious” time limitation is described as “the somewhat troublesome and ostensibly ambiguous language of this statute.”

We are concerned here with the last sentence of the statute wherein the only conceivable ambiguity is whether the phrase “the accused’s arrest” refers to the initial arrest or an arrest on capias. The majority opinion resolves that question, and I am in full accord with the conclusion that the phrase refers to the initial arrest only.

As for the effect of the unambiguous thirty-day limitation, the majority opinion does not deny its existence or attempt to alleviate its application based upon any language of the statute. The thrust of the opinion, as I understand it, is simply that in the interest of fair play we should abrogate the thirty-day limitation, except “[w]hen all parties — including the defendant, who must act promptly — have acted in good faith and in compliance with the statute.”

This is pure court-decreed legislation. If this Court is of the opinion that preliminary hearings are exclusively within the purview of the judicial department of government, then we should say so, ignore the statute, and write our own rules governing such hearings. In my view, it is not appropriate for this Court to continue the statutory amending process begun in Waugh.

The realities of the statute are that the Legislature, irrespective of the quality of draftsmanship, granted a very limited preliminary hearing right, applicable in the first instance only to defendants arrested, with or without a warrant, prior to presentment or indictment, and limited in the second instance to a period of thirty days immediately following the date of arrest by the device of allowing a motion to quash any indictment returned within that period.

While the statute does not expressly prohibit the holding of a preliminary hearing more than thirty days after the date of arrest, the state is free to indict after that period; and, when, and if, an indictment is returned the preliminary hearing is rendered moot. That is because of the fundamental law of this state that a defendant can only be brought to trial by indictment or presentment of a grand jury and that a magistrate’s decision that there is no probable cause does not preclude an indicted defendant from going to trial. Tenn.Const., Art. I, § 14; T.C.A. §§ 40-301, 302; State v. D’Anna, 506 S.W.2d 200 (Tenn.Cr.App.1973).

In my view, the Legislature simply did not intend to grant an accused an inalienable right to a preliminary hearing irrespective of time limitations or action by the grand jury on the offense charged, but instead knowingly and expressly limited that right. It is our duty to interpret applicable statutes as written, not as we would have authored them.

I would affirm the Court of Criminal Appeals and remand for trial upon the indictments.


author: COOPER, Justice. HENRY, Chief Justice,

text:
    Maurice HOWARD, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    March 5, 1979.

      W. Walker Gwinn, Chief Appellate Counsel, Edward G. Thompson, Shelby County Public Defender, Memphis, for petitioner.
    Charles L. Lewis, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen., Nashville, for respondent.
   COOPER, Justice.

OPINION

The petition for certiorari was granted in this case so that we might consider whether it is error for the trial judge to refuse to charge the jury on criminal trespass upon the trial of an indictment for third degree burglary, where the proof is susceptible to the inference that the lesser offense had been committed.

As background, the petitioner was brought to trial on an indictment for third degree burglary, which charged that he broke into and entered a school building with the intent to steal. At the close of the proof, counsel for the petitioner requested that the jury be instructed concerning the offense of criminal trespass. The trial judge refused. Subsequently, the petitioner was convicted of an attempt to commit a felony. On appeal, the Court of Criminal Appeals affirmed.

The petitioner’s claim of error is grounded upon his belief that a defendant is entitled, on request, to an instruction on any offense that is made out in proving the indicted offense. This rule has been adopted, with variations, in several jurisdictions. See, e. g., People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974); State v. Boyenger, 95 Idaho 396, 509 P.2d 1317 (1973); United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314 (1971). We do not think it would be appropriate for us to follow these courts on this question, even assuming it would be possible for us to construe the applicable statutes so as to permit us to do so. The adoption of such a rule would permit the defendant to request instructions on various offenses not described in the indictment, offenses that could not be charged at the request of the state, for the latter would be restrained by the constitutional requirement that a defendant be given notice of the offenses with which he is charged. See Tennessee Constitution Article 1 § 14. While we most emphatically do not embrace the “sporting theory” of criminal justice, we believe that, in this instance, justice would be better served by a rule that more evenly balanced the rights of the defense and the prosecution than would that advanced by the petitioner. In particular, we are concerned that, if the petitioner’s theory is adopted, trial judges will receive “requests for instructions limited only by the imagination and ingenuity of the defendant,” to the ultimate confusion of the jury and frustration of the judicial process. State v. Washington, 273 Or. 829, 543 P.2d 1058 (1975).

Other jurisdictions whose relevant statutes are similar to our own that have addressed this problem have, in general, adopted two positions in addition to the one described above. A number hold that an offense is necessarily included in, or a lesser included offense of, the indicted offense only if it is logically impossible to commit the indicted offense without committing the lesser offense, under any set of facts that might be imagined. See, e. g. State v. Arnold, 223 Kan. 715, 576 P.2d 651 (1978); State v. Redmon, 244 N.W.2d 792 (Iowa 1976); State v. Leeman, 291 A.2d 709 (Me.1972); Raymond v. State, 55 Wis.2d 482, 198 N.W.2d 351 (1972). Others hold that an offense is included in another if it is impossible to commit the greater offense in the manner in which that offense is set forth in the indictment without committing the lesser. See, e. g., Christie v. State, 580 P.2d 310 (Alaska 1978); State v. Neve, 174 Conn. 142, 384 A.2d 332 (1977); People v. St. Martin, 1 Cal.3d 524, 83 Cal.Rptr. 166, 463 P.2d 390 (1970); State v. Magai, 96 N.J.Super. 109, 232 A.2d 477 (1967).

This State has yet to adopt a definitive position on this question, although a number of decisions have used language, or reached results, that are consistent with one or the other of the two approaches just discussed. See, e. g., Wright v. State, 549 S.W.2d 682 (Tenn.1977); Spencer v. State, 501 S.W.2d 799 (Tenn.1973); Johnson v. State, 217 Tenn. 234, 397 S.W.2d 170 (1965). We believe that the better rule, and the one to be followed henceforth in this State, is the rule adopted implicitly by this court in Wright v. State, supra, that, in this context, an offense is necessarily included in another if the .elements of the greater offense, as those elements are set forth in the indictment, include, but are not congruent with, all the elements of the lesser. If there is evidence to support a conviction for such a lesser offense, it must be charged by the trial judge. T.C.A. § 40-2519; Whitwell v. State, 520 S.W.2d 338 (Tenn.1972).

Applying that rule to the instant case, it is apparent that the trial judge was correct in not instructing the jury concerning the crime of criminal trespass, for an element of that crime — that the defendant’s conduct be a breach of the peace — was not alleged in the indictment in the course of setting forth the elements of third degree burglary. Accordingly, the defendant’s conviction is affirmed.

PONES, BROCK and HARBISON, JJ., concur.

HENRY, C. J., dissents.

HENRY, Chief Justice,

dissenting.

Because the majority misconstrues our recent holding in Wright v. State, 549 S.W.2d 682 (Tenn.1977) and then proceeds to misapply its own construction, I must dissent.

The majority asserts:

We believe that the better rule, and the one to be followed henceforth in this State, is the rule adopted implicitly by this court in Wright v. State, supra, that, in this context, an offense is necessarily included in another if the elements of the greater offense, as those elements are set forth in the indictment, include, but are not coextensive with, all the elements of the lesser. (Emphasis supplied)

This is s 180 degrees removed from our holding in Wright, wherein we actually adopted the evidentiary test for determining what constitutes a lesser included offense. Sub silentio we rejected the statutory test which is roughly equivalent to the criteria quoted from the majority opinion. We held:

The true test of which is a lesser and which is a greater crime is whether the elements of the former are completely contained within the latter, so that to prove the greater the State must first prove the elements of the lesser. (Emphasis supplied) 549 S.W.2d at 685-86, quoting from Johnson v. State, 217 Tenn. 234, 243, 397 S.W.2d 170, 174 (1965).

It is. a matter of proof and not the contents of the indictment.

In reaching this conclusion we were careful to point out that we were dealing with a shoplifting case and that proof was necessarily considered in making the lesser included offense determination. It is evident from a careful reading of Wright that every larceny would not necessarily embrace or include shoplifting but, we said:

it would be utterly impossible to make out a case of petit larceny of merchandise from a retail mercantile establishment without establishing shoplifting. 549 S.W.2d at 685.

Thus, we applied the evidentiary test, rejecting the statutory test of Yearwood v. State, 2 Tenn.Cr.App. 552, 455 S.W.2d 612 (1970), as applied by the Yearwood Court. We pointed out that:

proof of larceny of merchandise from a retail establishment perforce of necessity involves proof of the essential elements of shoplifting. 549 S.W.2d at 686.

Under the statutory test the elements of the two offenses, as reflected in the respective statutory provisions, are considered in the abstract, wholly apart from the facts established by the proof.

When we apply the statutory test to the instant case it becomes clear that criminal trespass is not a lesser included offense to the crime of third degree burglary. The elements of third degree burglary are breaking and entering with felonious intent. § 39-904, T.C.A. The elements of criminal trespass are a forceable and unlawful entry constituting or calculated to constitute a breach of the peace.

But when we apply the evidentiary test we may get an entirely different result.

In the context of this case, wherein petitioner threw a brick through a schoolhouse window and thus gained entry into the building, the elements of criminal trespass are fully satisfied as are the elements of burglary. Therefore, applying the eviden-tiary rule, criminal trespass was a lesser included offense.

It is true that burglary does not necessarily include criminal trespass, in all cases, because entry by force and violence sufficient to create or tend to create a breach of the peace is not a requirement of burglary. Thus every burglary need not include criminal trespass and every criminal trespass is not per se burglary. However, every burglary committed “with force amounting to a breach of the peace . . . [or] calculated to produce a breach of the peace” necessarily encompasses and includes criminal trespass.

In the context of this case, and applying the Wright rule, the right result is that petitioner was guilty of third degree burglary or criminal trespass. It was for the jury to say which; but only after being charged as to these options.

I deplore the statement in the majority opinion that trial judges will receive “requests for instructions limited only by the imagination and ingenuity of the defendant.” I have an abiding confidence in the trial bench and bar. Criminal defense lawyers and trial judges know that the charge, to include special requests, is circumscribed by the proof. The suggestion made by the majority is a reflection on the trial bench and bar and is unsupported and unsupportable.

The majority opinion, immediately after giving an incorrect construction of the holding in Wright, asserts:

If there is evidence to support a conviction for such a lesser included offense, it must be charged. (Emphasis supplied)

Amen! That is what this dissent is all about. There was such evidence.

Applicable statutory and decisional law required that criminal trespass be charged in this case. Section 40-2518, T.C.A., provides:

It shall be the duty of all judges charging juries in cases of criminal prosecutions for any felony wherein two (2) or more grades or classes of offense may be included in the indictment, to charge the jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so.

Section 40-2520, T.C.A., in pertinent part provides:

Upon an indictment for any offense consisting different degrees, . . . the defendant may ... be found guilty of any offense the commission of which is necessarily included in that with which he is charged, Whether it be a felony or misdemeanor.

In State v. Staggs, 554 S.W.2d 620 (Tenn.1977), we quoted with approval from Strader v. State, 210 Tenn. 669, 682, 362 S.W.2d 224, 230 (1962):

He had the right to have all the law as to these different grades of offenses explained to the jury, in order that they might apply the law in determining whether he was guilty of any one or none of such offenses. He had this right because the statute (T.C.A., Sec. 40-2518) gave it to him, and because it was a part of his constitutional right of trial by jury to have every issue made by the evidence tried and determined by the jury under a correct and complete charge of the law given by the judge. (Emphasis supplied) 554 S.W.2d at 626.

In considering this duty to charge, our courts have consistently applied an eviden-tiary test, i. e., there is no duty to instruct on a lesser included offense where there is no evidence to support such a charge. See, State v. Staggs, supra; State v. Mellons, 557 S.W.2d 497 (Tenn.1977); Whitwell v. State, 520 S.W.2d 338 (Tenn.1975); Carmon v. State, 512 S.W.2d 595 (Tenn.Cr.App.1974).

I also would note that the Model Penal Code adopts the evidentiary test. Section 1.07(4)(a) states that an offense is a lesser included offense when “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” The Comment in Tent. Draft No. 5, p. 40 (1956), characterizes this rule as the “majority view.”

Here the evidentiary test was met and the charge should have been given.

I would reverse and remand for a new trial.

      . Criminal trespass is now made an offense by statute, T.C.A. § 39-5305.

      . In pertinent part those statutes provide:
      T.C.A. § 40-2518: It shall be the duty of all judges ... in cases of criminal prosecutions ... to charge the jury as to all the law of each offense included in the indictment, without any request on the part of the defendant to do so.
      T.C.A. § 40-2520: . . [Tjhe defendant may ... be found guilty of any offense the commission of which is necessarily included in that with which he is charged .

      . Some commentators have sought to distinguish between “necessarily included” and “lesser included” offenses. See 8 Moore, Federal Practice § 31.03. However, for the most part, any such distinction has been ignored by the courts. See Olais-Castro v. United States, 416 F.2d 1155 (9th Cir. 1969); State v. Washington, 20 Or.App. 350, 531 P.2d 743 (1975).

      . It should be noted that this definition of included offenses is not necessarily that used in the analysis of double jeopardy claims, as the rights involved are not the same. Compare State v. Black, 524 S.W.2d 913 (Tenn.1975).

      . Criminal trespass is defined in § 39-5305:
      It is declared to be a misdemeanor for any person to unlawfully enter upon the premises of another, and against his consent, with force' amounting to a breach of the peace, or such as is calculated to produce a breach of the peace.