Gardner v. State

196 P. 750, 27 Wyo. 316, 15 A.L.R. 1040, 1921 Wyo. LEXIS 18

• Court: Wyoming Supreme Court
• Decided: April 4, 1921
• Docket: No. 960
• Status: Published

Opinion

Blydenburgh, J.

The plaintiff in error, Lee Gardner, was informed against jointly with one Charles Netterfield, in the District Court of Laramie County, for the larceny of fifty bushels, of macaroni wheat and four sacks of grain screenings, of the total value of $100, the property of George P. Chap-pell. The plaintiff in err or, 'having demanded a separate trial, was separately tried by a jury which rendered a verdict of guilty. A motion for a new trial was filed,, argued and denied, an exception to the ruling being duly taken and preserved, .and the plaintiff in error sentenced to a term in tlie penitentiary. Nothing appears in the record to show what became of the case against the joint defendant, Charles Netterfield.

The petition in error filed in this court assigns as error only the denying of the motion for a new trial and the rendering of the judgment. The reasons stated in the motion for new trial are as follows •.

1. That the verdict of said jury is not sustained by sufficient evidence.

2. That said verdict is contrary to law and the instructions of the court.

3. For errors of law occurring at the trial as follows:

a. The court erred in overruling the defendant’s motion for a directed verdict made on the close of the state’s evidence.

b. The court erred in overruling the motion made by defendant at the close of the defendant’s case and before the case was submitted to the jury, to the overruling of said motions, and each of them, the defendant duly excepted at the time.

c. The court erred in overruling the motion made by defendant after the close of the case, and before the jury was instructed, for the court to instruct the jury upon the effect of possession or lack of possession of alleged stolen personal property, and with reference to the necessity of the proof where the evidenc is wholly circumstantial, said motion being as follows, to-wit: “The defendant now moves the court to instruct the jury specifically on the question as to the importance of the question of possession or lack of possession of said property in defendant, and to instruct the jury that unless they shall find that the defendant was in possession of the property, that his possession was exclusive and conscious, that there could be no conviction.”

d. The court erred in refusing to give instruction No. 15 asked by the defendant, exception to which refusal was duly taken by the defendant, said Instruction Number 15 being as follows, to-wit: “In order to convict the defendant in this ease it will be essential for you to find from the evidence beyond a reasonable doubt that the defendant did steal, take and carry away the grain of George' If. Chappell in the manner as set forth in the information herein. It is not sufficient that he might have been guilty of the crime, nor could you convict him if you merely found that he was probably guilty thereof, the evidence must point unerringly to his guilt, and must be irreconcilable with innocence. If under the evidence in this case any other person might have been guilty of the crime instead of the defendant, you must acquit the defendant, and unless the entire chain of circumstantial evidence is so connected, complete and compelling as to satisfy your minds of defendant’s guilt beyond a reasonable doubt, then you should acquit him. ’ ’

It will be seen from the foregoing that although the motion for a new trial alleged error in the court’s ‘£ overruling the motion made by defendapt after the close of the case, and before the jury was instructed, for the court to instruct the jury upon the effect of possession or lack of possession of alleged stolen personal property, and with reference to the necessity of the proof where the evidence -is wholly circumstantial”, the motion as set out in the motion for new trial make no mention of the matter of circumstantial evidence other than the possession or lack of possession of the property. The errors alleged therefore, are that the court erred in refusing to give Instruction Number 15 as set out in the motion for new trial, and that the evidence is insufficient to convict the defendant Gardner of the larceny, and that the court therefore erred in not granting the motion for a directed verdict of acquittal, although a large portion of the brief of defendant in error is directed to the question of circumstantial evidence.

The evidence in the case at bar was wholly circumstantial, and was of such a character as to authorize the jury in finding beyond a reasonable doubt that the wheat in question had been stolen from George F. Chappell and transported to the ranch or farm owned or occupied by Mrs. Sadie Netterfield, and was there found in a wagon on the morning after the theft, whose tracks had been followed from the Chappell place to the Netterfield place. The court not only refused to give the requested instruction Number 15, but did not give any instruction on the law governing circumstantial evidence. It is held by the best and weight of authority that the law of circumstantial evidence in criminal cases is that “in order to convict on circumstantial evidence, it is held necessary, not only that the circumstances all concur to show that the prisoner committed the crime, but that they all be inconsistent with any other rational conclusion. * * * Again, if the circumstances, no matter how strong, can be reasonably reconciled with the theory that some other person may have done the act, the defendant should not be convicted, and a verdict of guilty will be set aside as contrary to law. * * * "While the evidence must lead to the conclusion so clearly and strongly, where the evidence is purely circumstantial, as to exclude every reasonable hypothesis consistent with innocence, still, it is not necessary that the evidence should produce absolute certainty in the minds of the jurors, or that it should dissipate mere conjectures and speculative doubts,: — for metaphysical and demonstrative certainty is not essential to proof by circumstances. It is sufficient if the evidence produce moral certainty, to the exclusion of every reasonable doubt. 8 R. C. L. 225. “While absolute certainty is not essential, yet the evidence must be of such a character as to satisfy the jury of defendant’s guilt, and to exclude every other hypothesis to a moral certainty beyond a reasonable doubt; evidence creating a mere probability of guilt is not sufficient; much less is evidence which gives rise to nitre suspicion or conjecture of guilt.” 16 C. J. 766. In Davis v. State, 193 Pac. 746, the court said:

“ It is a well-established rule of law that,- where circumstantial evidence alone is relied upon, the circumstances when considered together must point clearly and conclusively to the guilt of defendant and exclude every reasonable hypothesis other than that of guilt.” And see Dossett v. U. S. (Okla.) 41 Pac. 608. And in Horn v. State, 12 Wyo. on page 157, the following instruction was approved:

“To authorize a conviction upon circumstantial evidence alone, the circumstances must not only all be in harmony with the guilt of the accused, but they must be of such a character that they cannot reasonably be true in the ordinary nature of things and the defendant be innocent.” 'The jury must be convinced beyond all reasonable doubt but not beyod all possible doubt. “While the evidence must lead to the conclusion so clearly and strongly, where the evidence is purely circumstantial, as to exclude every reasonable hypothesis consistent with innocence, still, it is not necessary, that the evidence should produce absolute certainty in the minds of the jurors, or that it should dissipate mere conjectures and speculative doubts, — for metaphysical and demonstrative certainty is not essential to proof by circumstances. It is sufficient if the evidence produce moral certainty, to the exclusion of every reasonable doubt.” 8 R. C. L. 227. In Cornish v. the Territory, 3 Wyo. 95, on page 97, where an instruction contained the words “must be absolutely incompatible with the innocence of the accused,” they were said to be equivalent to that the defendant’s guilt must be established beyond the possibility of a doubt, and declared that was not the law, but quoted with approval from the case of Poole v. People, 80 N. Y. 646: ‘‘Such a degree of certainty is rarely attainable in the administration of justice. It is sufficient that all the material circumstances point to guilt, and that they are inexplicable upon the theory of innocence. The guilt must be established beyond a reasonable, but not beyond a possible, doubt. ’ ’

While the requested instruction No. 15, the refusal to give which is claimed as error in this ease, is in the main a correct statement of the law as regards circumstantial evidence, the use of the words “The evidence must point unerringly to his guilt, and must be irreconcilable with innocence”, is equivalent to absolute certainty, and renders the requested instruction erroneous. The dictionary defines “unerring” as “incapable of error or failure; certain; sure,” and the synonym for “unerringly” is given as “infallible.” It is not incumbent upon the court to give an instruction which states an erroneous statement of the law and “a reversal will not be directed because of the refusal to give an instruction unless it is strictly and entirely accurate.” The court therefore did not err in refusing to give requested Instruction No. 15. The other errors alleged in the motion for a new trial relate to the sufficiency of the evidence to convict, and the failure to grant the motion for a directed verdict, which involves the same thing. We are convinced, after a careful examination of the evidence that the case must be reversed on these grounds. This is not a case of conflicting evidence where the jury have decided the conflict and the supreme court will not disturb the findings, but although there is sufficient evidence to prove the theft, there is absolutely no evidence to connect the defendant in error therewith. The only facts in the case that can even throw suspicion on this defendant, if that can be called a suspicious circumstances, is that he was employed as a farm hand by Mrs. Netterfield, at whose place the stolen wheat was found. It was in evidence that a foot-print was seen in the bin at the Chappell place that was larger than-Chappell’s foot, and that there was a small heel track as if made by a smaller heeled cowboy boot, where the driver of the-wagon in which the wheat was taken had gone and gotten,' some gasoline from a truck that was in the road, on the way to the Netterfield place. But there is nothing in the. evidence to show the size of defendant’s foot, or that he wore or was seen wearing any such boots, or to connect him with this evidence in any way. There is nothing in the evidence to show that he left the Netterfield ranch on the night of the theft, or that he knew what was in the wagon in which the stolen wheat was found at the Netter-field place the next morning. No conversation or remarks by the defendant that were even suspicious were proven, and no suspicious acts on his part are in evidence. When seen the next morning he was attending to his regular occupation and later in the morning when arrested for this offense he was in the field working. No conference or attempted conversation with Charles Netterfield, who was joined with him in the information; no claim by defendant in error to the stolen wheat, and no reason or object shown why he should have taken it. Where circumstantial evidence is relied upon for conviction it must be of such a character that it leads to but one fair and reasonable conclusion, pointing to the defendant to the exclusion of all others as the guilty person. 16 C. J. 774. In State v. Sieff, 168 Pac. (Mont.) 524, it is said: “By the widest stretch of the imagination these facts cannot be so arranged that it can be said they point unmistakably to defendant’s guilt, and are altogether irreconcilable with any other rational hypothesis; and this is the test in this state applicable to every criminal case in the trial of which the state relies, as in this instance, upon circumstantial evidence. * * * At most, it doe's not do more than east a suspicion upon the defendant, and mere suspicions or probabilities, however strong, are not sufficient basis for a conviction.” In McLaughlin v. State, (Okla.) 193 Pac. 1010, it is said:

“If the evidence introduced by the state fails to incriminate the defendant, or as a matter of law is insufficient to show that he is guilty of the offence charged, it is not only the right but the duty of the trial court to advise the jury to return a verdict of acquittal'. * * * It is unquestionably the law that crime may be established by circumstantial evidence, otherwise society would be at the mercy of the criminal classes, but it is also uniformly held that the circumstantial evidence must go beyond mere suspicion and conjecture, and where circumstantial evidence solely is relied on for a conviction the circumstances tending to show guilt must be consistent, the one with the other, and point so strongly to the guilt of the defendant as to exclude every other reasonable hypothesis except that of guilt. Can it reasonably be said that the fact that this defendant was riding in the stolen car with one who was confessedly the thief was sufficient to show his complicity in the crime charged? It seems to us clearly that it was not, and, for this reason, when the state closed its case in chief, the instruction asked by the defendant directing the jury to return a verdict of acquittal should have been given at that time. ’ ’ See also State v. Mullan, (Mont.) 173 Pac. 788; State v. Suitor (Mont.) 114 Pac. 112; Iowa v. Johnson, 19 Iowa 230. The court should have granted the motion for a directed verdict made at the close of the evidence for the prosecution, and for the error in denying said motion and the insufficiency of the evidence, the ease must be reversed and a new trial granted.

There is another question to which a large portion of the brief of defendant in error is devoted and that is the failure of the court to instruct at all on the law of circumstantial evidence, and as the case must be sent back for new trial, this matter ought to be considered. The court did not, anywhere in the instructions, given, inform the jury of the character or sufficiency or effect of this character of evidence, although this was a case on which the prosecution relied wholly upon circumstantial evidence. The defendant however did not except or object to the charge on this ground, or request any other instruction in writing, except in regard to instruction Number 15, above considered, and it is held in Smith v. State, 17 Wyoming, on page 489, “that it is not enough to merely state to the court that the party' desires the court to instruct, on a certain point; but he must present to the court what he claims to be the law.” It is generally held that “where the prosecution relies wholly or substantially upon circumstantial evidence, or conviction may be had upon such evidence alone, the court should instruct upon the law relating to such evidence,” 16 C. J. 1008. “Where all the evidence is circumstantial, the court should instruct that the circumstances, to warrant a conviction, must be consistent with each other, must tend to prove guilt, and not only must be consistent with the hypothesis of defendant’s guilt, but must be inconsistent with every other reasonable hypothesis, including the hypothesis of his innocence.” 16 C. J. 1011. “Where the evidence is entirely circumstantial the court should instruct that in order to convict the circumstances must be so strong as to exclude every reasonable hypothesis except defendant’s guilt. Defendant is entitled to an instruction on circumstantial evidence where the state relies solely on recent unexplained possession, or where the cases rests merely upon circumstances.” 25 Cyc. 150. In Territory v. Lermo, (N. Mex.) 46 Pac. 16, it is said: “The facts in the case being purely circumstantial, it was the duty of the court to instruct the jury fully on the law of circumstantial evidence. This the record shows the trial court did not do, and, by reason of such failure, manifest error, prejudicial to the rights of the defendant, has intervened, and the case must be reversed. Counsel for appellant requested the court to give the following instruction, to-wit: ‘ The court instructs the jury that, where circumstances alone are relied upon by the prosecution for a conviction, the circumstances must be such asp to apply exclusively to the defendant, and :such as are reconcilable with no other hypothesis than the defendant’s guilt, and they must satisfy the minds of the jury of the guilt of the' defendant beyond a reasonable doubt.’ 'This instruction fairly stated the law, and the -weight to be given to]circumstantial evidence where there-is no direct evidence; and to exclude it from the jury was error, especially where there is no other instruction given substantially covering the same subject. The history and experience of criminal jurisprudence establishes that two essential elements in the case must be proved: First, the identity of the corpus delecti; and, second, the identity of the accused, — before a conviction in any grade is warranted. 3 Greenl. Ev. 30. And, while these essential facts may be proved by circumstantial evidence, yet it is a well-established principle that it is necessary to caution the jury, in a proper instruction, as to the weight and effect to be given the circumstances detailed by the witnesses, to establish these first and most important elements tending to establish the crime as charged. Turner v. State, 4. Lea. 206; Dossett v. U. S. (Okla.) 41 Pac. 608; Com. v. Webster, 5 Cush. 317; Graves v. People (Colo. Sup.) 32 Pac. 63; People v. Murray, 41 Cal. 66. ‘We are further of the opinion that, inasmuch as the evidence in the case was wholly circumstantial, the jury should have been instructed as to the nature and conelusiveness of that character of testimony to warrant a conviction upon it.’ Struckman v. State, 7 Tex. App. 581; People v. Phipps, 39 Cal. 326.” See Turner v. State, 72 Tenn. 206. It is generally considered that it is the duty of the court to instruct the jury on the essential law of the ease, and of such matters of law without which the defendant will not receive a fair trial, or without which a jury of laymen would be apt to go wrong. Our statute governing instructions in criminal eases is subdividion 6 of §7532, Comp. Stat. 1920, and is as follows: “Before the argument of the case is begun the court shall immediately and before proceeding with other business, charge the jury, which charge, shall be reduced to writing by the court, if either party request it, and such charge or charges or any other charge or instruction provided for in this section, when so written or given, shall in no case be orally qualified, modified, or in any manner explained to the jury by the court, and all written charges and instructions, shall be taken by the jury in their retirement and returned with 'their verdict into court and shall remain on file with the papers in the case. ’ ’ It will be seen that it is mandatory upon the court to “charge the jury” and can mean nothing less than that the court shall instruct the jury as to the essential law of the case, although unless requested to do so by either party, the judge is not compelled to reduce the charge to writing, but it has become the uniform practice in this state to do so, and we believe it to be the better practice to have all of the courts charge in writing. While it is generally considered that a request for instruction should be made and an exception to a refusal taken, in order for a defendant to avail himself of the error in the supreme court, this is not the universal rule and there are exceptions to it, especially where the matter is fundamental and goes to the gist of the case. The rule is stated in Thompson on Trials, §2341, that mere non-direction, partial or total, is not ground for a new trial unless specific instructions, good in point of law and appropriate to the evidence, are requested and refused. This rule, however, has been referred to in two opinions in this court. In the case of Union Pac. Ry. Co. v. Jarvi, 3 Wyo. 375, it was said in the opinion by Judge Corn, and concurred in by Chief Justice Van Devanter, in referring to this rule from Thompson: ‘ ‘ But the rule as stated by Thompson, even if applicable to this case, is not the rule in this jurisdiction Subdivision 5, §2553, Rev. Stat. of Wyoming, provides that in civil cases ‘before the argument of the case is begun, the court shall give such instructions upon the law to the jury as may be necessary;’ and his duty to do this is not excused by the failure of counsel to request ‘specific instructions, good in point of law, and appropriate 'to the evidence. ’ ” In the case of Hay, Executor, v. Peterson, 6 Wyo. 419, on page 441, Chief Justice Groesbeck stated this rule of Thompson with approval, but as no reference is made to the Jarvi case where this rule is disapproved, we must assume that that case was not called to the court’s attention when considering the Hay ease. However, having the two cases in this court holding diametrically opposite to each other in regard to this rule, we would be inclined to follow the holding of Judges Corn and Van Devanter in the Jarvi case rather than the mere statement of the rule from Thompson in the Hay v. Peterson case. This court, in Parker v. State, 24 Wyo. 498, on page 500, said: “However, if it clearly appears from the record that such fundamental and prejudicial error has been committed as to amount to a denial of substantial justice, or to deprive the defendant of a fair trial, the court should not hesitate to reverse the judgment and grant a new trial, although proper exceptions were not taken at the time.” And in the case of Chama v. State, 24 Wyo. 513, where no exceptions were taken, this court reversed the case for fundamental errors preventing the defendant from having a fair trial. It has been considered in a number of jurisdictions that the failure to instruct on the law of circumstantial evidence when the case was one wholly dependent on such evidence, was fundamental error, so as to require a reversal, even when no exception is taken to such failure of the trial court. In Utah, the statute governing instructions in criminal cases is subdivision 6, §5033, Vol. 2, Compiled Laws of Utah, and is as follows:

“The judge may then charge the jury, and must do so on any points pertinent to the issue if requested by either party; and he may state the testimony and declare the law; and in each case he shall inform the jury that they are the sole judges of the credibility of the witnesses, of the weight of the evidence, and of the facts. If the charge be not given in writing, it must be taken down by the phonographic reporter.”

This can hardly be said to be as strong as our statute, but the supreme court of Utah in People v. Scott, 37 Pac. 335, on page 336, said:

“When the testimony in a criminal case is entirely of a circumstantial character, as it was in this case, and a request is made to charge upon the subject of circumstantial evidence, but such request is erroneous, it is still the duty of the court to give the law upon the subject. (Comp. Laws, § 5033, subd. 6; People v. Murray, 72 Mich. 10, 40 N. W. 29; Ward v. State, 10 Tex. App. 293; Crowell v. State (Tex. App.) 6 S. W. 318; Willard v. State, (Tex. App.) 9 S. W. 358; Crowley v. State, (Tex. App.) 10 S. W. 217; Barr v. State, 10 Tex. App. 507.) In a criminal case the court should see that the ease goes to the jury in a clear and intelligent manner, so that they may have a correct understanding of what it is that they are to decide, and it should state to them fully the law applicable to the case. It is to the court that the accused has a fight to look .to see that he has a fair trial. Circumstantial evidence may be quite as conclusive as direct evidence, but it is incumbent upon the prosecution, not only to show by a preponderance of evidence that an offense was committed, and that the alleged facts and circumstances are true, but they must also be such facts and circumstances as -are incompatible, upon any reasonable hypothesis, with the innocence of the accused, and incapable of explanation upon any. reasonable hypothesis other than the defendant’s guilt. The chain of circumstances must be complete and unbroken. A jury of inexperienced laymen could hardly be expected to apply the rules applicable to this class of testimony without some assistance from the court”

And, again, in State v. Romeo, (Utah) 128 Pac. on page 538, it is said:

“The rule obtains in this jurisdiction that'in a criminal case, when the evidence on the part of the prosecution is alone of a circumstantial character, it is the duty of the court to state to the jury the rules applicable to that kind of evidence. (People v. Scott, 10 Utah 217, 37 Pac. 335; State v. Brown, 115 Pac. 996.) This for the reason that a jury of inexperienced laymen without assistance from the court could hardly be expected to properly apply the rules applicable to that kind of evidence, and, if not so instructed and warned, there is danger of incorrect inferences and illogical conclusions from jurors.”

In the note to Beason v. State, 69 L. R. A. on page 217, in reference to the necessity for such instructions, it is said:

"The rule would appear to be that a failure so to instruct the jury whether requested or not is material error with the exception of a single case.” and cites Hamilton v. State, 96 Ga. 301, 22 S. E. 528; Hunt v. State, 7 Tex. App. 212; Barr v. State, 10 Tex. App. 507; Ward v. State, 10 Tex. App. 293; Ray v. State, 13 Tex. App. 51; Leftwich v. State, 34 Tex. Cr. Rep. 489; 31 S. W. 395; People v. Scott, 10 Ut. 217, 37 Pac. 335; Polanko v. State, 33 Tex. Cr. Rep. 634, 28 S. W. 541. In 97 Am. St. Rep., in a note to State v. Hudson, on page 790, it is said:

"In order to secure justice it is the duty of the trial judge, even without request, to instruct the jury as to this kind of evidence, where the ease is based entirely thereon. (Hamilton v. State, 96 Ga. 301, 22 S. W. 528; State v. Elsham, 70 Iowa 531, 31 N. W. 66; State v. Brady (Iowa) 91 N. W. 801; McDowell v. Commonwealth, 4 Ky. Law Rep. 353; Territory v. Lermo, 8 N. Mex. 566, 46 Pac. 16; Struckman v. State, 7 Tex. App. 581; Barr v. State, 10 Tex. App. 507); and a failure to charge thereon is reversible error; (Polanka v. State, 33 Tex. 7r. App. 634, 28 S. W. 541; Willard v. State, 26 Tex. App. 126, 9 S. W. 358; Hanks v. State, (Tex. Cr. App.) 56 S. W. 922); whether excepted to at the proper time or not; (Connor v. State, 17 Tex. App. 1).”

In State v. Brady, (Iowa) 91 N. W. 801, the court said : on page 806:

"In submitting a case in which the question of guilt depends entirely upon circumstantial evidence, the jury should not be given loose rein, but should have careful direction as to the quantom of proof which will justify a conviction. (State v. Johnson, 19 Iowa 230; People v. Cunningham, 6 Parker Cr. Rep. 398; Dreessen v. State, 38 Nebr. 375, 56 N. W. 1024).”

In State v. Miller, (Kan.) 114 Pac. 855, the court said:

“Although the particular instruction requested was faulty, as pointed out in the former opinion, it was as said in a recent case, ‘sufficient at least to challenge the court’s attention to the only defense upon which (appellant) relied,’ and in support of which there was some substantial evidence offered. (State v. Turner, 83 Kans. 183, 109 Pac. 983.) As no instruction was given which in any manner stated the law in reference to appellant’s sole defense, the error must be regarded as prejudicial. ’ ’

In Welland v. State, (Tex.) 9 S. W. 359, it is said:

“The conviction is based wholly upon circumstantial evidence, and the court having failed to instruct the jury with regard to that character of evidence committed error for which the conviction must be set aside. ’ ’

In Cowley v. State, (Tex.) 10 S. W. 217, the court said:

“There is no evidence that is not circumstantial and connects him with the original taking of the animal. Such being the character of the evidence, the trial court committed a material error in failing to charge the jury with reference to circumstantial evidence, and- for this error alone the judgment is reversed and the case remanded.”

In Crowell v. State, (Tex.) 6 S. W. 319, the court said:

“It is only proved circumstantially and the case is therefore one resting solely upon circumstantial evidence. This being the character of the evidence, it is material error to omit to charge the jury upon the rules relating to circumstantial evidence. ’ ’

In a recent ease in Tennessee, in connection with a discussion of the necessity of an instruction as to the weight to be given to a dying declaration in a. homicide'case although not requested, the court referred to the rule in that state requiring an instruction upon circumstantial evidence by saying: “It has been held by this court to be error not to instruct the jury with respect to circumstantial evidence, where the ease is dependent entirely upon circumstances.” (Pearson v. State, 226 S. W. 538.)

This case is reversed for lack of evidence to connect the defendant with the taking or asportation of the wheat, hut we give our views on the question of instructions' regarding circumstantial evidence where such evidence is wholly relied upon for conviction as a guide in case of a new trial of this case, and in other such eases in the state, and we believe that the courts should, in such eases, instruct on the law regarding circumstantial evidence whether requested to or not, as being fundamental to the defendant’s having a fair trial, such as the constitution and laws guarantees to him.

But to justify a reversal for an absolute failure to give such an instruction, where it appears that there was otherwise a fair trial, it should be found to have been prejudicial, and, as a general rule, there should be an exception properly presenting the question.

Reversed and remanded for new trial.

Potter, G. J., and Kimbaijd, J., concur.