666 S.W.2d 305 (1984)
Mary Jane RODRIGUEZ, Appellant,
v.
The STATE of Texas, Appellee.
No. 04-81-00326-CR.
Court of Appeals of Texas, San Antonio.
January 25, 1984.
*307 Oliver S. Heard, Jr., San Antonio, Thomas Goggan, Roy E. Greenwood, Austin, for appellant.
Bill White, Criminal Dist. Atty., Elizabeth Taylor, Sam Ponder, Hipolito Canales, Jr., David Berchelmann, Jr., Jerry Rosson, Asst. Criminal Dist. Attys., San Antonio, for appellee.
Before CADENA, CANTU and DIAL, JJ.

OPINION
CANTU, Justice.
Appellant was convicted, by a jury, of murder under TEX.PENAL CODE ANN. § 19.02(a)(2) (Vernon 1974).[1] Punishment was assessed by the trial court at imprisonment in the Texas Department of Corrections for a term of twenty-five years.
The sufficiency of the evidence is not challenged but a brief recitation of the facts is necessary to effectively address appellant's contentions.
The evidence reflects that on February 10, 1978, at approximately 6:15 p.m., medical technicians with the Emergency Medical Services of the City of San Antonio responded to a poisoning call at 502 Frio Street. As the EMS vehicle pulled up, a woman later identified as appellant, brought a child wrapped in a blanket out to the vehicle. The child was semi-conscious and bore numerous bruises on her arms, legs, back and buttocks.
Appellant initially suggested to the EMS technicians that the child had swallowed "Pine-Sol" cleaning fluid and had fallen down some stairs.
The child died at the Bexar County Hospital after being treated by Dr. David Oberndorf. According to Dr. Oberndorf the child had suffered a ruptured spleen, a ruptured liver, a skull fracture and various other internal injuries. Cause of death was thought to be due to massive internal bleeding and shock.
On February 11, 1978, Homicide detective Abel Juarez spoke with appellant and, following a Miranda[2] warning, he obtained a statement from appellant.[3]
*308 As a result of the statement, detective William Wolfe went to appellant's home and obtained a belt and a board that had been mentioned in appellant's statement.
Dr. Ruben Santos, the Bexar County Medical Examiner, confirmed the cause of death to be the result of internal bleeding and serious internal injuries.
Appellant relied upon the defense of alibi and upon the declaration of a third party admitting guilt through the judicial confession of Andrew Lara, appellant's thirteen year old mentally retarded brother. Appellant did not testify.
By her first ground of error, appellant claims the trial court erred in denying her motion for mistrial urged during final arguments when the State prosecutor allegedly commented on her failure to testify.
It was the defense's theory that appellant's brother Andrew, a mental retardate who suffered seizures, had inflicted the injuries resulting in the child's death during one of these seizures at a time when appellant, her mother and grandmother were away from the home.
The State countered with the theory that, Andrew had been instructed by someone to take the blame for the homicide so as to exonerate appellant.
During final jury arguments the prosecutor argued:
(Prosecutor): Thank you. But, then, of course, the catch-all in this is, well, don't worry about Roland and Andrew's story not jiving, because poor Andrew probably just couldn't remember, this is a part of his disease. Well, you know, that's just really convenient. I mean, that just plugs in everything. When in doubt, well, he can't remember, so it's all right, skip over that, or perhaps he is not remembering it right. Well, that's ridiculous, too. Please don't brand Andrew as a murderer. This woman did it and she should be found guilty of it.
Also, remember the picture that was painted of Andrew by others. The one thing we do know, he did have a grand mal seizure. No one is contesting that. But he had it as a result of a drug given to him before surgery. Since that time, the only rage, only seizure we know about that they say they know about is the beating death of Valerie. Did you hear anyone else every talk about how he smashes things, how he becomes irritable, can't sleep? All you heard about was from the doctor. Did his family get up there and say that? No. They didn't. Did you hear about any other rages he has had, any other attacks on children? No. In fact, Ms. Callaway told you, well, we have got this little dwarf, eight year old girl that's about the size of a one year old, and what does Andrew do? He helps her, picks her up so she can drink water. And what did Andrew tell you about what happens when people pick on him? I go to another place to think. That's not a boy that could do what was done to Valerie. Not Andrew Lara.
The doctor also made a point of he had hoped a question would be asked while Andrew was rubbing his head and looking confused, because maybe he was having a petit mal seizure. Well, if that's indication of seizure, I think there are an awful lot of us that are in trouble. An awful lot of us, including myself. Because I often do that. But I would suggest to you when Andrew did that what he was doing was trying to remember what he had been told to say. And don't misunderstand me, I am not accusing Mr. Heard or Mr. Goggan of doing this, no. But he does have a family, and we haven't heard from all of the family. And

*309 MR. HEARD: Your Honor, that's a comment on the failure of the defendant to testify and we move a mistrial. We object to it and we ask for a ruling on the objection.
THE COURT: All right. The jury will be instructed to disregard the last comment by the prosecutor with the regard to comment that she made about the family.
MR. HEARD: Your Honor, for the reasons previously stated, we must now move for a mistrial.
THE COURT: Overruled. (Emphasis supplied.)
Appellant argues that the comment, "... we haven't heard from all the family" necessarily amounts to a direct comment upon appellant's failure to testify under the facts and circumstances presented in the case.
From the defense's evidence it was established that only three persons, besides the deceased, were at the scene of the homicide, thirteen year old Andrew Lara, his nine year old brother Roland Arriaga and appellant's four year old son. Since Andrew and Roland testified, appellant reasons only she remained as a potential witness because four year old Johnny was not a competent witness and thus the prosecutor's argument necessarily referred to her. We do not view the prosecutor's argument in the same light as does appellant nor do we think the jury naturally and necessarily took it to be a comment on appellant's failure to testify.
It is basic and fundamental constitutional and statutory law in this State that the failure of an accused to testify during his trial may not be the subject of direct or indirect comment by a prosecuting attorney during his final jury argument. See Angel v. State, 627 S.W.2d 424 (Tex.Cr.App.1982); TEX. CONST. art. I, § 10; TEX.CODE CRIM.PROC.ANN. art. 38.08 (Vernon 1979).
A direct comment upon a defendant's failure to testify will result in a reversal unless the error is shown to be harmless beyond a reasonable doubt.
For an indirect comment to constitute reversible error, it must call for a denial of an assertion of fact by contradictory evidence that only the defendant is in a position to offer. Nickens v. State, 604 S.W.2d 101 (Tex.Cr.App.1980, En Banc).
The statute is not shown to have been infringed by disclosing that counsel, in argument, used language which might be construed as an implied or indirect allusion to the failure of the accused to testify. To come within the prohibition, the implication must be a necessary one, that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own. Where there is other evidence to the absence of other evidence, to which remarks may reasonably have been applied by the jury, the statute is not transgressed. Garrett v. State, 632 S.W.2d 350 (Tex.Cr.App.1982).
The test employed is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the accused's failure to testify. Bird v. State, 527 S.W.2d 891 (Tex.Cr.App. 1975).
In applying this test, the facts and circumstances of each case must be analyzed to determine whether the language used was of such character. Nickens v. State, supra.
The reference by the prosecutor, to not having heard from all the family, contrary to appellant's contention, did not address potential witnesses to the assault. Rather, it is evident, the prosecutor was arguing that there were several family members who might have influenced Andrew to testify in a manner exonerating appellant. When considered in its entirety, the prosecutor's argument was not manifestly intended nor was it of such character that the jury would naturally and necessarily take it to be a comment on the accused's failure to testify.
*310 There were two adult family members who the jury knew about that did not testify and who were in a position to exert influence upon Andrew. According to Andrew, his mother, his grandmother and appellant were all away from home at the time of the incident. Thus, while Andrew's mother and grandmother could not shed light on the assault, both or either might have shed light on Andrew's manner of testifying, and could have offered contradictory evidence to the effect that Andrew was not told to perjure himself.
We hold that the language complained of is not a direct comment nor does it necessarily refer to appellant's failure to testify by implication.
We further note that the cautious trial court immediately instructed the jury to disregard any reference to family members. Although we hold the argument to be proper, any possibility of error was cured by the trial court's instruction. Anderson v. State, 633 S.W.2d 851 (Tex.Cr. App.1982). Appellant's first ground of error is overruled.
By her second ground of error, appellant alleges that the trial court erred in overruling her objection to improper jury argument by the prosecutor. It is contended that the trial court's ruling constituted a comment on the weight of the evidence.
During final jury arguments, the prosecutor stated:
And please remember one of my last questions to Andrew was, Andrew, you really didn't hit her, did you, and in a very small voice he said `no.' Please remember that question and answer.
Counsel for appellant immediately objected to the prosecutor's argument, with the following objection:
Your Honor, we object to that. That's not the testimony. The jury should be instructed to go by what they remember.
The objection was overruled and no instruction was given. Appellant contends that the action by the trial court in overruling her objection and in refusing the instruction requested constituted a comment on the weight of the evidence amounting to error of constitutional dimension.
TEX.CODE CRIM.PROC.ANN. art. 38.05 (Vernon 1979) provides:
In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.
Appellant's contention that the trial court's ruling was, in effect, equivalent to informing the jury that it was the court's recollection that the prosecutor's version of the facts was correct is without merit.
The court's ruling in this case was nothing more than the court carrying out its duty to rule on objections without embellishment or unwarranted comment. Smith v. State, 595 S.W.2d 120 (Tex.Cr.App.1980), rev'd on other grounds sub nom. Ex parte Smith, 650 S.W.2d 68, 70 (Tex.Cr.App.1982) (en banc opinion after remand).
The record reflects the following testimony during the trial:
(PROSECUTOR):
Q: Andrew, you really didn't hit Valerie, did you?
A: On the wall?
Q: No, anytime?
A: No.
The record supports the prosecutor's version of the facts. The trial court correctly ruled on the objection without invading the jury's province as fact finders and judges of the credibility of the witnesses and without giving credence to the State's version of a disputed fact issue. Appellant's second ground of error is overruled.
Appellant, in her third ground of error, urges that the trial court erred in failing to sustain her timely objection to what she contends were inflammatory and prejudicial photographs.
*311 The photographs complained about are of the deceased child taken by the treating physician and depict the bruised body of the child as seen at the hospital.[4] The two EMS technicians testified that the photographs accurately depicted the condition of the child at the time they responded to the Frio Street address. The photographs were admitted into evidence following verbal descriptions of the deceased's physical appearance.
The admissibility of a photograph is conditioned on its identification by a witness as an accurate portrayal of facts relevant to the issue and on verification by such witness or a person of knowledge that the photograph is a correct representation of such facts. Goss v. State, 549 S.W.2d 404 (Tex.Cr.App.1978).
Though the photographs are gruesome, they are competent, material, relevant to the issues of identification of the deceased and the cause of death, and admissible the same as a verbal description of the body of the victim. Moreno v. State, 587 S.W.2d 405 (Tex.Cr.App.1979); Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972), overruled on other grounds, Jackson v. State, 548 S.W.2d 685, 690 (Tex.Cr.App. 1977), dism'd w.o.j., 409 U.S. 1021, 93 S.Ct. 469, 34 L.Ed.2d 312 (1972). Appellant's third ground of error is overruled.
In her fifth ground of error, appellant complains of the trial court's ruling admitting her written confession into evidence. Appellant asks us to hold that her written confession was inadmissible, as a matter of law, because the medical testimony indicates that she suffered from diminished capacity and could not have voluntarily given a written confession.
Prior to trial, a Jackson v. Denno[5] hearing on the voluntariness of the confession was conducted.
Detective Juarez testified that he came in contact with appellant at the police station on February 11, 1978 at about 9:45 a.m. After he administered the Miranda warning to her, he ascertained that she understood the meaning of the warning. Juarez, while communicating with appellant in English and in Spanish, commenced to reduce her statement to writing. Detective Lloyd R. Brown then read the statement back to her slowly in English and appellant verified that the statement was true and correct. Appellant signed the statement in his presence and in the presence of two other lay witnesses.
Appellant, testifying in her own behalf, admitted telling Detective Juarez that she had beaten her child. She further admitted signing the confession in his presence and in the presence of two other lay witnesses after it was read back to her by Detective Brown. She, however, denied that the statement was true.
Appellant also called as her witness, Dr. Betty Lou Schroeder, a clinical psychologist, who testified she had performed several tests on appellant designed to measure her mental ability. According to Schroeder, appellant possessed a numerical IQ of 56 but was capable of understanding the meaning of a jury trial, and the right to maintain her silence. Schroeder believed appellant was capable of knowingly waiving these rights and further believed that appellant understood the meaning of the charges against her and could assist her attorney in the preparation and trial of her case. Schroeder concluded that, in her opinion, appellant was capable of giving a voluntary confession.
Appellant's mother and brother, Andrew, testified and related aspects of appellant's prior medical history.
After the testimony, the trial court found, beyond a reasonable doubt, the following:
1) On February 10, 1978, at 6:55 P.M., Emergency Medical Service Personnel answered an emergency call at the home of Mary Jane Rodriguez. The Defendant *312 brought to the Emergency Medical Personnel a semi-conscious child, that appeared to be seriously beaten. That child, Valerie Rodriguez, the daughter of the Defendant died that day from internal injuries.
2) On February 11, 1978, the Defendant was in custody of San Antonio Police at the County Jail.
3) Appellant[6] speaks and understands the English language but does not read.
4) At 9:45 P.M., on February 11, 1978, Detective Abel Juarez just came into contact with the Appellant at the Police Station and informed the Appellant of her rights by reading those rights from a San Antonio Police Department Warning Card as follows:
... Before you are asked any questions, it is my duty as a Police Officer to advise you of your rights and to warn you of your rights and to warn you of the consequences of waiving those rights.
Number 1: You have the right to remain silent.
Number 2: You do not have to make any statement, oral or written, to anyone.
Number 3: Any statement you make will be used in evidence against you in a Court of Law at your trial.
Number 4: You have the right to have a lawyer present to advise you before and during any questioning by either police officers or attorneys representing the State.
Number 5: You may have your own lawyer present or if you are too poor to hire a lawyer, then the court will appoint a lawyer for you free of charge now or at any other time.
Number 6: If you decide to talk with anyone, you can or you can stop talking to them at anytime you want.
Number 7: The above rights are continuing rights which can be urged by you at any stage of the proceedings.
When asked if she understood these rights, the appellant said she did and she willingly answered questions of Detective Juarez. Appellant never attempted to exercise any of the aforementioned rights.
5) Just prior to the taking of the written statement, Detective Juarez again advised her of her rights as were contained on State's Exhibit No. 1.
6) At the Police Station, the Appellant's statement was reduced to typewritten form and was signed by the Appellant. Prior to the Appellant signing the statement, Detective Lloyd R. Brown read the Appellant's statement back to her slowly from top to the bottom of the page.
The Appellant stated that she did understand the statement and that it was true and correct. Two (2) civilian employees of the San Antonio Police Department as well as Detective Juarez and Detective Brown witnessed Appellant's signature at 10:25 A.M.
7) No force, threats, persuasion, or promises nor any form of coercion were used in obtaining Defendant's confession.
8) While the Appellant has less than normal intelligence, she was knowledgeable of the situation and was mentally capable of knowingly and intentionally waiving her right to remain silent and to make a knowing and voluntary confession.
9) There is evidence beyond a reasonable doubt that the confession was freely and voluntarily given and with a complete understanding by the Appellant of her federal and state constitutional rights which had been read to her.

CONCLUSIONS OF LAW
The court concludes as matters of law.
1) The Defendant, after repeated warnings, knowingly, intelligently and voluntarily waived her rights under TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon 1979).
2) The Defendant's confession was not the product of force, threats, persuasion, *313 intimidation, or promises, but was freely and voluntarily given.
3) The Defendant's voluntary confession was therefore admissible in evidence as a matter of law.
The record fully supports the findings of the trial court.
Appellant's contention that the evidence showed that her mentality was such that she could not, as a matter of law, knowingly and intelligently waive her right to remain silent is not supported by the record.
The testimony of officer Juarez and others who came into contact with appellant at the time of the execution of the written confession as well as appellant's own testimony at the hearing belies her contention that she, as a matter of law, was of abnormal mentality which prevented her from understanding the meaning and effect of her confession. Cf. Grayson v. State, 40 Tex.Cr.R. 573, 51 S.W.2d 246 (1899).
In determining the admissibility of a confession of a crime, the fact that it was made by one whose mentality was at a lower than normal level is to be taken into consideration and viewed as a factor indicating, although not establishing, that the confession was lacking in voluntariness. Casias v. State, 452 S.W.2d 483 (Tex.Cr. App.1970); Hanus v. State, 104 Tex.Cr.R. 543, 286 S.W. 218 (1926).
A confession is not inadmissible merely because the accused, who is not claimed to be insane, is of less than normal intelligence. See Vasquez v. State, 163 Tex.Crim. 16, 288 S.W.2d 100 (1956).
Although the record verifies that appellant is of low mentality we cannot say that, as a matter of law, her low mentality is such as prevents her from knowingly and voluntarily giving and acknowledging her written confession. Appellant's fifth ground of error is overruled.
The fourth ground of error alleges that the trial court erred in excluding from evidence a tape recording of a conversation between appellant's expert witness and Andrew Lara.
Appellant argues the admissibility of the taped conversation as an oral confession pursuant to the provisions of TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon Supp.1982-83), as invited evidence and as impeachment evidence.
Appellant called Dr. Larry Aniol, a clinical psychologist, as a defense witness. Dr. Aniol described the psychological makeup of Andrew Lara. During cross-examination by the State, the doctor was asked whether he believed or disbelieved Andrew's incriminating story. Dr. Aniol testified that Andrew's admission of guilt was consistent with the evidence, was reasonable and in his mind created a doubt that appellant committed the murder. During redirect, Dr. Aniol related that he had been in the courtroom throughout Andrew's entire testimony. He further testified, without objection, that the version of the events testified to by Andrew was consistent with the previous conversation he had with Andrew wherein guilt had been admitted by Andrew.
Dr. Aniol revealed that he had tape recorded his interview with Andrew. The tape was marked and offered as defense exhibit number 4 but was not received into evidence by the trial court. Appellant was then permitted to ask Dr. Aniol whether Andrew's testimony was consistent with the contents of the recording. Dr. Aniol replied in the affirmative and offered the opinion that Andrew was telling the truth both from the witness stand and during the interview.
The State offered, in rebuttal, the testimony of Detective Frank Castillon who submitted a prior written statement made by Andrew which was inconsistent with his testimony given at trial and which corroborated appellant's confession.
Appellant then sought to reoffer the taped recording as a "prior consistent statement" seeking to rebut a prior inconsistent statement. This second tender was withdrawn by appellant prior to a court ruling and with the stated purpose of preserving error only as might have occurred *314 due to the trial court's denial of the initial tender.
We focus our attention, in reviewing appellant's alleged error, only upon the circumstances and facts comprising the initial tender and the corresponding court ruling.
The record reflects the following relative to the tender of the tapes:
(DEFENSE ATTORNEY)
MR. HEARD: We now offer in evidence the tape identified as Defendant's Exhibit No. 4.
* * * * * *
THE COURT: I don't know what the purpose of the offer is.
MR. HEARD: Ask for it to be received in evidence. That's the purpose of the offer, your Honor.
* * * * * *
MR. HEARD: We believe they have opened the door to it asking his opinion as to truthfulness and so on and so forth. We want to go into that and want to show what the children told him, want to show how it all developed.
THE COURT: Well, you have the opportunity ofhad the opportunity to ask him whether what they said then corresponded with what they say now, and I don't know whether you have covered it adequately to satisfy yourself. To go and play these tapes at this time withoutfor the purpose that you enumerate, I am not
MR. HEARD: Your Honor, we think they are relevant and we don't know of any possibility under which they could be excluded in evidence.
THE COURT: I don't know what part of them you claim are relevant. I don't know what the tapes say. I have no way of knowing. They are just tapes. I can't read them, I can't look at them.
MR. HEARD: Well, we suggest that they be received in evidence and played to the court and jury. If they want to interpose an objection
THE COURT: That will be overruled.
MR. HEARD: Okay. Then I will examine him concerning them, Your Honor.
* * * * * *
Following the trial court's ruling, appellant was permitted to inquire of the witness into those matters forming the basis for the prior tender of the taped recordings.
Appellant, presumably, was satisfied with the scope of examination permitted. We note that the objectives sought to be achieved by appellant, as enumerated to the court during the tender, were met.
Since the taped recordings were never offered into evidence on a bill of exception, this court is in no position to determine the nature of the evidence sought to be admitted. We are relegated to the purposes stated by defense counsel as sought to be achieved and we are convinced that those purposes were met through the testimony of Dr. Aniol.
Appellant recognizes that, in Texas, declarations of a third party admitting guilt of a crime for which another is on trial are admissible only when the State is relying upon circumstantial evidence, when the guilt of such party is inconsistent with the guilt of the accused, and when the facts show that such third party was so situated that he might have committed the crime. Ramirez v. State, 543 S.W.2d 631 (Tex.Cr. App.1976).
Appellant recognizes that the existence of the written confession poses a barrier and removes the case from the realm of circumstantial evidence but asks this court to engraft an exception because "the State's case would have been wholly insufficient had the confession not been available." We disagree.
Aside from the confession of appellant, there is other evidence in the record supporting a finding that Andrew did not strike the child and that appellant committed the acts. Still, the confession is alone sufficient to prevent the rule in Ramirez from rendering admissible appellant's tender of proof.
Nor do we believe the recordings were admissible because the State opened the *315 door or invited the evidence. Appellant seems to be arguing that because the trial court offered her wide latitude in permitting her to prove up the desired testimony from Dr. Aniol in lieu of admitting the recordings that cross-examination of the witness by the State constituted a waiver of objection by the State as to the admissibility of the recordings.
Appellant candidly suggests that since Dr. Aniol testified that he believed Andrew was telling the truth, she should be permitted to further demonstrate the basis for Dr. Aniol's ability to determine the credibility of his patient. We believe that appellant's stated intent was to bolster the testimony of Dr. Aniol and nothing more. Still, in the absence of a bill of exception, we are in no position to determine what effect, if any, the recordings may have had and, therefore, appellant has not demonstrated that the admission of the recordings would have achieved the result she now advocates. For the same reason, we are constrained to hold that appellant is precluded from contending that the recording constituted a prior consistent statement. But if it did, the testimony of Dr. Aniol developed in lieu of the recording certainly meets the declared desired result and we can perceive no harm to appellant by the trial court's exclusion of the recording. Appellant's fourth ground of error is overruled.
We find no error calling for reversal and the judgment of the trial court is, therefore, affirmed.
NOTES
[1]  "A person commits an offense if he:

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; ..."
[2]  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[3]  Omitting the warnings and formal parts, appellant's extrajudicial confession reads as follows:

I would like to state, that Friday, 2/10/78, at around 5:30 P.M. I was at home with my two brothers, Andrew, Roland, my son Juan and my daughter Valerie. All four of them were outside playing and it was getting late, so I called them, to come inside. They all came inside the house, went to the bathroom and closed the door. I started wondering, what they were doing inside the bathroom, so I opened the door. I saw Valerie, hugging and kissing my son Juan. I hate for her to kiss him and I have told her many times not to kiss him, because it makes me mad, he is only three years old. I then grabbed Valerie by the arm and took her inside my bedroom and then slapped her on the face, several times. Then I got a belt and I hit her several times with it, all over her body, head, arms, legs, etc. I don't know how many times I hit her, but I do know, it was a lot of times. I then stopped hitting her with the belt but I was still mad at her. She kept on screaming and crying and when I told her to be quiet, she kept on and would not stop. So, then I got a board, that we use to bolt the door with, to keep it from opening. I then hit her with it a lot of times, all over her body and did not stop hitting her, until she stopped screaming. I don't remember how many times I hit her, but I do know I hit her for a long time. She laid down on the mattress, after I stopped hitting her and she went to sleep.
I then got scared, because I thought I might have hurt her and I tried to wake her up. I could'nt [sic] get her to wake up and this is when I went outside, walked to a nearby garage and told the mechanic to call an ambulance, that my baby was sick. I then went home and waited for the ambulance. After a few minutes, E.M.S. and the Police arrived. I told them that my baby had accidently drank Pine Sol and did not tell them the truth, because I was scared. The E.M.S. men, then took me and my baby to the Bexar County Hospital and later on, a Police officer, took me to the Homicide Office. There I talked to the Detectives and I told them that my husband Francisco Rodriguez, who is in Mexico, had beat up my daughter. He was always hitting her, the last time he came to visit us and this was about three weeks ago.
This is the truth and exactly what happened to my daughter. I have not been promised anything for giving this statement. This statement was read back to me in english [sic] by Sgt. L. Brown, because I do not know how to read in english [sic]. Everything he has read back to me is exactly what I told Det. Juarez and it is the truth.
[4]  They are not photographs taken after an autopsy. Cf. Terry v. State, 491 S.W.2d 161 (Tex. Cr.App.1973).
[5]  378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
[6]  The trial court in its findings refers to the appellant as both, defendant and appellant.


473 F.2d 679
Rubin DAVIS, Petitioner-Appellant,v.C. Murray HENDERSON, Warden, Louisiana State Penitentiary,Respondent-Appellee.
No. 72-2516 Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
Jan. 16, 1973.

Lawrence A. Durant, Baton Rouge, La.  (Court-appointed), for petitioner-appellant.
William P. Guste, Atty. Gen., S. J. Dileo, Jr., Asst. Atty. Gen., L. J. Hymel, Jr., Baton Rouge, La., for respondent-appellee.
Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.
PER CURIAM:

1
While serving a 15-year sentence for an unrelated crime, petitioner and a fellow inmate in the Louisiana State Prison where he was incarcerated became embroiled in a heated quarrel.  During the course of the fight that ensued, petitioner pulled a knife from underneath his pillow and stabbed his card partner to death.

2
Petitioner was indicted for first degree murder as a result of his action and was arraigned, tried, convicted, and sentenced to life imprisonment on November 9, 1962.  The only people present at petitioner's trial were the trial judge, the prosecuting attorney, and a recorder who jotted down minute notes of the proceedings.  Those notes indicate that the petitioner waived his right to counsel, pled guilty to murder (thereby waiving other precious Fifth and Sixth Amendment rights) and waived the mandatory 24-hour delay provided by statute between conviction and sentencing in this proceeding.

3
Upon petitioner's application for a writ of habeas corpus, the district court below granted an evidentiary hearing and allowed the petitioner to present evidence from two psychiatrists who had examined him.  Both doctors testified that he could have intelligently understood the magnitude of his action if-and only if-they were simply and clearly explained.  The court below found the minute entries indicating that the petitioner had waived his constitutional rights to be controlling.  We disagree.

4
In short, this is what the record demonstrates: a nonverbatim minute report taken during the defendant's trial indicates that a marginally competent inmate pleaded guilty to murdering a fellow inmate under circumstances which could have been manslaughter, if not justifiable homicide, and received a life sentence without so much as a bat of the eye.  This conduct does not comport with the stringent due process requirements imposed upon the states by Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

5
There is a strong presumption against the waiver of vital constitutional rights.  Upon the record before us, we are unable to state that the defendant intelligently and voluntarily abandoned a known constitutional right or privilege.  Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.  Therefore, petitioner must be given the opportunity to plead anew.

6
Reversed and remanded.

*
 Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I


               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                           No. 01-41110
                         Summary Calendar

UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GERALD GALLAWAY,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 1:00-CR-62-1
                       --------------------
                           May 23, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

     Gerald Gallaway appeals his 151-month sentence following his

jury-trial conviction for conspiracy to distribute and possession

with the intent to distribute cocaine base and heroin, in

violation of 21 U.S.C. §§ 841(a)(1) and 846.   Gallaway contends

that his sentence was imposed in violation of Apprendi v. New

Jersey, 530 U.S. 466 (2000).

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 01-41110
                                 -2-

     Gallaway did not challenge his sentence on these grounds in

the district court, thus, this court reviews his assertion for

plain error only.   See United States v. Vasquez-Zamora, 253 F.3d

211, 213 (5th Cir. 2001).   Because Gallaway was sentenced below

the statutory maximum for the offense charged in his indictment,

there was no Apprendi violation.   See United States v. Keith, 230

F.3d 784, 787 (5th Cir. 2000), cert. denied, 531 U.S. 1182

(2001); United States v. Randle, 259 F.3d 319, 322 (5th Cir.

2001).   Gallaway has not shown plain error; indeed, he has not

shown any error at all.   Accordingly, we AFFIRM.

     AFFIRMED.


767 F.2d 930
Taylorv.Smith
85-1282
United States Court of Appeals,Eighth Circuit.
6/26/85

1
W.D.Mo.

AFFIRMED


119 P.3d 877 (2005)
STATE of Washington, Appellant,
v.
Jacob James POTTER, Respondent.
No. 23371-5-III.
Court of Appeals of Washington, Division 3, Panel One.
September 13, 2005.
*878 Kevin M. Korsmo, Deputy Prosecuting Attorney, Spokane, WA, for Appellant.
William D. Edelblute, Attorney at Law, Spokane, WA, for Respondent.
SWEENEY, J.
¶ 1 Police must have probable cause to believe a crime has been or is being committed to arrest. But even a state statute which is ultimately determined to be unconstitutional can support that probable cause determination. Here, police arrested Jacob Potter for driving while his license was suspended. Two related statutes (but not the one Mr. Potter violated) had been ruled unconstitutional. Mr. Potter nonetheless claims that his arrest was unlawful. We conclude that the statute provided ample probable cause for Mr. Potter's arrest. And we reverse the trial court's decision suppressing the drugs seized pursuant to that arrest.

FACTS
¶ 2 A police officer stopped Jacob Potter while driving his vehicle. The officer checked the status of Mr. Potter's license; it was suspended. The officer arrested Mr. Potter, searched him incident to the arrest, and found methamphetamine.
¶ 3 The State charged Mr. Potter with possession of a controlled substance. Mr. Potter moved to suppress the drug evidence pursuant to City of Redmond v. Moore and State v. White.[1] The court granted Mr. Potter's motion and dismissed the prosecution. The State appeals.

DISCUSSION
¶ 4 The State contends that the trial court confused the issues of probable cause to arrest and the constitutional validity of a statute necessary to convict. It argues that the validity of an arrest turns on whether an officer had probable cause that a crime had been committed at the time of the arrest, not some later decision as to the constitutionality of a statute.
¶ 5 Mr. Potter responds that the State must show that the warrantless search of Mr. Potter was conducted incident to a lawful arrest. And it did not do that here because it did not show that his arrest fell outside the unconstitutional statutory provisions in Moore.
¶ 6 We review the trial court's decision to suppress evidence de novo. State v. Myers, 117 Wash.App. 93, 96, 69 P.3d 367 (2003), *879 review denied, 150 Wash.2d 1027, 82 P.3d 242 (2004).
¶ 7 The court in Moore held two license suspension statutes unconstitutionalformer RCW 46.20.289 (2002) (mandatory suspension of a driver's license) and former RCW 46.20.324(1) (1965) (no formal hearing for a mandatory suspension of a driver's license). City of Redmond v. Moore, 151 Wash.2d 664, 667, 91 P.3d 875 (2004). It then affirmed the dismissal of the charges against the defendants (driving with a suspended license) based on the way those licenses were suspended. Id. at 677, 91 P.3d 875.
¶ 8 Mr. Potter's license was apparently suspended under the mandatory provisions in former RCW 46.20.289 and former RCW 46.20.324(1). Mr. Potter argues in his trial brief that "[h]e was arrested and searched pursuant [to] RCW 46.20.289." Clerk's Papers at 6. The State acknowledged Mr. Potter's argument and did not challenge it.
¶ 9 So the question, then, is whether the subsequent decision in Moore affected the validity of Mr. Potter's initial arrest (for driving with a suspended license). It did not.
¶ 10 Warrantless searches are presumed unconstitutional. State v. Gaddy, 152 Wash.2d 64, 70, 93 P.3d 872 (2004). Exceptions to this rule are narrowly drawn. Id. But police may search following a lawful arrest. Id. The State, however, must show that a search falls within this exception. State v. Leach, 113 Wash.2d 735, 738, 782 P.2d 1035 (1989).
¶ 11 It must show that the officer had probable cause to make a lawful arrest. RCW 10.31.100(3)(e); Gaddy, 152 Wash.2d at 70, 93 P.3d 872; State v. Mance, 82 Wash.App. 539, 542, 918 P.2d 527 (1996). Probable cause requires "facts or circumstances, based on reasonably trustworthy information, sufficient to cause a reasonable officer to believe a crime has been committed." Gaddy, 152 Wash.2d at 70, 93 P.3d 872. The facts and circumstances must be known to the officer at the time of arrest, not later. Id.; Mance, 82 Wash.App. at 541-42, 918 P.2d 527.
¶ 12 And an officer may rely on the statutes as written to determine whether a crime has been committed. State v. Branch, 129 Wash.2d 635, 648, 919 P.2d 1228 (1996); State v. White, 97 Wash.2d 92, 103-04, 640 P.2d 1061 (1982). So an arrest is not invalid for lack of probable cause simply because the criminal statute a defendant is arrested under is later found to be unconstitutional. Michigan v. DeFillippo, 443 U.S. 31, 37-38, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); see White, 97 Wash.2d at 103-04, 640 P.2d 1061; 2 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 3.3(b), at 91 (2d ed.1999). Conviction for a crime based on an unconstitutional statute will not stand. But the validity of an arrest based on the statute generally remains unaffected:
Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionalitywith the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.
DeFillippo, 443 U.S. at 38, 99 S.Ct. 2627 (emphasis added).
¶ 13 The facts here are not challenged. The State showed that an officer stopped Mr. Potter while driving. The officer checked the status of Mr. Potter's license. It was suspended in the third degree. The officer arrested Mr. Potter for driving with a suspended license. He searched Mr. Potter incident to arrest and found methamphetamine.
¶ 14 The trial court then should not have suppressed this evidence. White, 97 Wash.2d at 103-04, 640 P.2d 1061; Mance, 82 Wash.App. at 542, 918 P.2d 527. The police had probable cause to arrest Mr. Potter and therefore search him. Gaddy, 152 Wash.2d at 70, 74, 93 P.3d 872. The procedural provisions in RCW 46.20.289 and .324(1) (that we assume led to the suspension of Mr. Potter's license) were valid at the time of arrest, and were not so "flagrantly unconstitutional" as to require notice by this officer. White, 97 Wash.2d at 103, 640 P.2d 1061. The arrest was lawful. DeFillippo, 443 U.S. at 37-40, 99 S.Ct. 2627; White, 97 Wash.2d at 103-04, 640 P.2d 1061.
*880 ¶ 15 We reverse the dismissal and remand for trial.
WE CONCUR: KATO, C.J., and BROWN, J.
NOTES
[1]  City of Redmond v. Moore, 151 Wash.2d 664, 91 P.3d 875 (2004); State v. White, 97 Wash.2d 92, 640 P.2d 1061 (1982).


85 F.2d 478 (1936)
SABINE TOWING CO., Inc., et al.
v.
BRENNAN et al.[*]
VAN BEECK
v.
SABINE TOWING CO., Inc., et al.
Nos. 7876, 7977.
Circuit Court of Appeals, Fifth Circuit.
August 14, 1936.
*479 *480 M. A. Grace and Edwin H. Grace, both of New Orleans, La., for Sabine Towing Co., Inc., and others.
M. G. Adams, of Beaumont, Tex., H. C. Hughes and J. W. Lockhart, both of Galveston, Tex., and W. M. Crook, of Beaumont, Tex., for Sophia Brennan and others.
M. G. Adams, of Beaumont, Tex., and H. C. Hughes, of Galveston, Tex., for Charles Van Beeck.
Before FOSTER, SIBLEY, and WALKER, Circuit Judges.
FOSTER, Circuit Judge.
These cases present an appeal and cross-appeal in admiralty from a judgment awarding damages for the death of certain members of the crew of the tugboat Edward F. Coney, owned by appellant, Sabine Towing Co., Inc., hereafter called the company, which vessel foundered in the Gulf of Mexico on January 28, 1930, with the loss of her entire crew of 14. The company filed a petition for limitation of liability which was denied, on the ground that the vessel was lost because unseaworthy, to the knowledge of her owners. (C.C.A.) 72 F.(2d) 490. Claims were filed in that proceeding by personal representatives of 8 members of the crew, hereafter called claimants, and were referred to a Commissioner to take the evidence and recommend the amounts to be recovered. In due course the Commissioner reported. Exceptions to the report were filed by the *481 company, on the ground that the awards were too high. The claimants also excepted to the report on the ground that the awards were too low. All exceptions to the Commissioner's report were overruled and the amounts he recommended were adopted by the court, except as to one claim which was disallowed. Judgment was entered accordingly.
So far as he discussed it, the Commissioner correctly interpreted the law. He reviewed the evidence to some extent in making his report but did not specifically find the facts as to any claim. It is not clearly shown what formula he used in determining the amounts to be awarded.
The law is well settled. The claimants are entitled to recover in admiralty, under the provisions of section 33 of the Merchant Marine Act of June 5, 1920 (46 U.S.C.A. § 688), which incorporates the provisions of the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.) by reference. Lindgren v. U. S., 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686. There may be only one recovery by the personal representative of the deceased for the benefit of all the persons entitled to damages under the act. The measure of damages is compensation for the deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased. In estimating this the earning power of money must be considered and an amount determined, which, capitalized at a reasonable rate of interest, would yield annually the same income the person injured might have expected from the deceased, using the interest and part of the capital from year to year. To determine this amount standard tables prepared by actuaries may be used. Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117, L.R.A.1917F, 367.
Pecuniary loss to be recovered may include damages, "when the beneficiary is a child, for the loss of that care, counsel, training, and education which it might, under the evidence, have reasonably received from the parent, and which can only be supplied by the service of another for compensation." Michigan Central R. Co. v. Vreeland, 227 U.S. 59-71, 33 S.Ct. 192, 196, 57 L.Ed. 417.
There are certain features common to all the claims. Claimants offered an insurance actuary as a witness. He testified as to the joint expectation of life of the deceased and beneficiary. Since there is no evidence in the record to the contrary, we must accept that testimony as part of a reasonable basis for the determination of the amount to be awarded in each case. The actuary also testified as to the present value of money capitalized at 3½ and 4 per cent. per annum interest. On this testimony claimants contend that they should have been awarded damages on the present value of the amount of annual income lost for the joint expectancy of life, capitalized at 3½ per cent.
Six claims were presented for the benefit of the widows of the deceased seamen. Every widow testified, in substance, that her husband was strong and healthy, sober and industrious and devoted to his wife and family; that he turned over his entire wages to her every month and used not over $10 to $15 per month for his personal expenses. However, it also appears that the wives paid all the bills for the support of the family and, in some instances, installments on articles bought on time. Three of these claims were also for the benefit of minor children. There is nothing in the evidence, except the general statement of the widow that the father was devoted to his children and gave them his care and affection when at home, to show the pecuniary value of his services to the children or that another would of necessity have to be employed to furnish the same care.
We must endeavor to do justice between the parties, the company as well as the claimants. There is no mathematical formula for exactly determining the loss. Any amount fixed is of necessity hypothetical. We may not consider what might happen in the future. The earnings of the deceased might have increased or diminished had they lived. Some beneficiaries might squander their recovery in a year or two. Others might preserve it intact for many years, using only the annual interest, or by successful business ventures double it. All this is too speculative to have a place in determining the award.
The legal rate of interest in Texas is 10 per cent. per annum. Doubtless many well-secured loans are made at that rate. United States bonds as a rule do not pay more than 3 per cent., but there are many state bonds and sound industrial securities that pay at least 6 per cent. per annum interest. Courts are not bound to adopt either the highest or the lowest rate of *482 interest in determining the amount to be awarded. In Ramjak v. Austro-American S. S. Co., 186 F. 417, we adopted the rate of 6 per cent. per annum as reasonable in determining the decreased earning capacity of a passenger injured on a vessel. In U. S. v. Boykin, 49 F.(2d) 762, we again adopted the rate of 6 per cent. per annum in awarding damages to a father for the death of his son. We consider that rate just and reasonable.
Assuming the testimony of the widows to be truthful, it is beyond dispute that the husbands, upright, faithful, and devoted, derived as much benefit from the upkeep and happiness of the family as did the wives. We consider it to be a fair estimate to say the family had lost an amount equivalent to one-half of what the husband and father earned.
We may take up the various awards in the order in which they appear in the judgment, allowing recoveries in round figures to conform as near as they may to a fair estimate of the damages suffered.
William Brennan was master of the tug. His wages were $200 per month at the time of his death. His average earnings for thirteen months had been $161.58 per month. A claim was filed for the benefit of his widow, Sophie Brennan, and three minor children, Audrey, aged 8, William aged 6 and Gloria, aged 3. Judgment was rendered for $21,000 in proportions of $15,000 to the widow, $1,500 to Audrey, $2,000 to William and $2,500 to Gloria. Fixing the loss to the widow and children at $1,200 per annum, an amount of $15,250, capitalized at 6 per cent. for the life expectancy, which was 24 years, would fully cover the loss. The statute does not require that the court should apportion the recovery among the beneficiaries, Central Vermont Railway Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252, but it is usually done. Where there are a number of beneficiaries in the class entitled to recover, and the evidence discloses that their expectancies are different, it is proper to do so. In the case of a recovery for the benefit of a widow and her minor children, there is hardly any need to apportion the amount between them. Naturally, the minor children will receive full benefit from any award made to the mother. However, the District Court has seen fit to do so in this case. Appellant has no interest as to this and appellee has made no objection. We do not consider that any distinction should be made between the children because of the difference in their ages. The amount apportioned to them will probably be administered by the mother, as guardian or trustee. The only practical result of the apportionment would be to have the amount set aside to them, to be available when they reach majority. We consider that the apportionment of $1,000 to each of the children would be proper. This will be sufficient to include any theoretical pecuniary recovery for the loss of the father's care and guidance.
Orville Glenn Pyle was chief engineer of the tug. His wages were $190 per month at the time of his death. For 13 months his earnings had averaged $182.31 per month. A claim was filed for the benefit of his widow, Bertha M. Pyle. There were no children, issue of the marriage. Judgment was rendered for $20,000. The life expectancy was 25 years. Whether there be one or many of the class entitled to recover is not material. Fixing her loss at $1,140 annually, she is entitled to an award of $14,750.
Cyrus Durio was steward and cook on the tug. His wages were $85 per month. His average for 13 months was $86.95. A claim was filed for the benefit of his widow, Mrs. Adolphine Durio, and three minor children, Mildred, aged 16, Earline, aged 13, and Joseph, aged 9. Judgment was rendered for $9,000 in proportions of $7,300 to the widow, $400 to Mildred, $500 to Earline and $800 to Joseph. The life expectancy was 15 years. Fixing the loss at $510 annually, $5,250 would be an ample recovery on this claim. Considering the advanced ages of the children, it should be apportioned $3,750 to the widow and $500 to each of the children.
Stewart J. Causey was classed as a sailor on the tug. His wages were $65 per month at the time of his death. For 12 months his earnings had averaged $57.68 per month. He left as beneficiaries his father and mother. A claim was filed for their benefit and judgment was rendered for $3,000, proportioned $1,500 to each. The father testified that his son was 19½ years of age at the time of his death. The parents lived in Amite county, Miss., and owned a farm of 172 acres, of which they cultivated 14 acres and rented 14 acres. The son had been living at Port Arthur, Tex., with his sister and her husband and had gone to school there. It is not shown how long he had been away from home, but *483 it is reasonably certain that he had been away for several years. His father testified that his son regularly sent him $20 a month, and sometimes would make it $25 but there is nothing to show this but his own testimony. He introduced two letters from his son. In one, dated October 29, 1929, about three months before his death, he apologized for not writing, told about a trip he had taken to New Orleans, Jacksonville, and Miami, complained about the cost of living and said he could not save anything but was going to send his father and mother $20 and would send them another $25 for Christmas, and that was the best he could do. In the other letter, dated January 25, 1930, a few days before his death, he again apologized for not having written before, said he was going to make a trip to Pensacola and Tampa and would not be back for some time, but he would write them. He made no mention in this letter of having complied with his previous promise or about making any further contributions. The testimony of the father that his son sent him from $20 to $25 a month has little probative weight. Living away from home, paying all his own expenses and earning only $65 a month, it was highly improbable that he could have managed to send his father and mother as much as $20 a month. It is apparent that the father and mother had very little expectation of pecuniary benefit from their son. They were not entitled to recover for his services during minority. New York Central & Hudson River R. Co. v. Tonsellito, 244 U.S. 360, 37 S.Ct. 620, 61 L.Ed. 1194. To fix their estimated loss at $100 a year would be extremely liberal. The joint expectancy of life was 15 years. An award of $1,000, to be divided equally between them, would be ample on this claim.
Joseph Hayden Kenney was mate of the tug. His wages were $165 per month at the time of his death and he averaged $168.27 over a period of 13 months. A claim was filed for the benefit of his widow, Ora Kenney and two minor children, Joseph, aged 10, and Kathleen, aged 6. Judgment was rendered for $20,000, proportioned $15,300 to herself, $2,000 to Joseph and $2,700 to Kathleen. The life expectancy was 22 years. Fixing the annual loss at $990, an award of $12,250, proportioned $10,250 to the mother and $1,000 to each of the children would be ample.
C. L. Nelson was on the tug when she was lost and should be rated as a fireman. There is some question as to whether his name was Charles or Cyrus, but that is immaterial, as the recovery is by his personal representative. W. M. Crook presented a claim as administrator and was awarded $7,500 for the benefit of Ruth Nelson, now Ruth Nelson Dumas, his widow, who remarried about a year and a half after his death and was subsequently divorced. There is testimony, slight it is true, but admitted without objection and uncontradicted, that he was signed on by the captain of the tug shortly before she departed on her last voyage and he was working his way to Tampa. The tug's papers were all lost with her. The only item shown on the books of the company is that he earned $12.50 in January, which was due him at the time of his death. The usual rate of pay for firemen on tugs is $65 per month. There were no children, issue of the marriage. The widow testified by deposition that her husband sent her $50 a month regularly. She had been living at Salem, Mass., since 1926, some four years before the husband lost his life. They were not divorced, but he was working in Florida and visited her only occasionally when he could get on a ship that would take him to that part of the country. The widow was earning from $12 to $15 per week, practically as much as the husband when he was steadily employed. Claimant introduced several letters the widow had received from her husband. None of the letters mentioned the sending of money, but one of them promised that he would do so. From the tone of the letters, it may be inferred that he intended to send her whatever he could spare when he was earning anything. The burden was on claimant to prove the decedent's employment on the vessel, the rate of wages he received, and the beneficiary's reasonable expectancy of future income. There is nothing to show that Nelson had any income other than his pay. The testimony of the widow that her husband regularly sent her $50 a month is entitled to no weight as that would leave him only $15 per month, if he were employed, to cover his entire expenses, and he must have known she was supporting herself. It is doubtful that claimant has sustained the burden of proving any loss. However, as the Commissioner and the District Court were convinced, we will not take a contrary position. Considering all the testimony, it cannot be said that the beneficiary lost an expectancy of income of more than $20 a month. The life expectancy *484 was 22 years. An award of $3,000 would be ample on this claim.
H. A. Anderson was a fireman on the tug. His pay was $65 a month at the time of his death. He had averaged that for a period of 5 months. A claim was filed for the benefit of his widow, Ruth Anderson. There were no children, issue of the marriage. Judgment was rendered for $11,000 for her sole use. The widow frankly testified that she did not know how much her husband used for his own expenses or how much he earned; that he regularly gave her $37.50 every two weeks while they were married, which was a period of one year and 28 days. It is not shown that he had any source of income other than his pay. It was manifestly impossible for him to have given his wife $75 a month, to say nothing of paying his own personal expenses. The life expectancy was 20 years. Fixing the annual loss of income at $390, an award of $4,750 would be ample.
The cross-appeal is taken to the rejection of a claim filed by Mrs. Jennie Royakers as administratrix to recover damages for the death of her son, Edward C. Van Beeck, who was second mate on the Coney. It appears from a stipulation in the record that Edward C. Van Beeck left surviving him his mother and a brother aged 34. After filing the claim, his mother died in July, 1931, before an award had been recommended by the commissioner. The brother, Charles Van Beeck, qualified as administrator of the estate of his brother and was substituted in place of his mother, the former administrator. Cross-appellant contends that judgment should have been granted for the amount recommended by the commissioner, $700.
The statute (section 1, 45 U.S.C.A. § 51) creates three classes of beneficiaries: (1) The surviving widow or husband and children of the employee; (2) the employee's parents; and (3) the dependent next of kin of the employee. Each class excludes those following, in the order named, and nondependent collaterals are not entitled to recover. Before the passage of the Merchant Marine Act there could be no recovery for damages for the death of a sailor occurring on the high seas. Nor could there be any recovery for death at common law. In Martin's Administrator v. Baltimore & Ohio R. Co., 151 U.S. 673-703, 14 S.Ct. 533, 38 L.Ed. 311, an action was brought by Martin to recover damages for personal injuries to himself. A verdict was directed for defendant. Pending an appeal, Martin died and his administrator was substituted. On suggestion of his death, in the Supreme Court, it was held that the action abated by the death of the injured party, under the law of Virginia, where the action was brought, and that the administrator had no right to maintain the action. In Chicago, Burlington & Quincy R. Co. v. Wells-Dickey Trust Co., 275 U.S. 161, 48 S.Ct. 73, 72 L.Ed. 216, 59 A.L.R. 758, it was held that the liability is to one of the three classes named in the act and not to the several classes collectively; and if the person entitled to recover at the time of the employee's death dies before a recovery of the compensation, the cause of action dies also.
There is no doubt that the cause of action abated with the death of the mother, who at the time of her son's death was the sole beneficiary entitled to recover, to the exclusion of all others. It is clear there could be no recovery on this claim.
The judgment awarded interest to the claimant at the rate of 6 per cent. per annum from February 28, 1935, the date of the filing of the Commissioner's report. The report merely recommended the amounts to be awarded and did not fix the liability of the company. The act does not provide for interest before the damages are determined. Cortes v. Baltimore Insular Line, (C.C.A.) 66 F.(2d) 526. In admiralty the allowance of interest is discretionary with the court. In this case interest should be allowed at the rate of 6 per cent. per annum from July 18, 1935, the date the decree was entered in the District Court.
On the appeal the judgment is amended to conform to our views above expressed. As so amended, it is affirmed. Costs in the District Court to follow the judgment. Costs of appeal to be divided; one-half to appellants and one-half to appellees, in proportion to the various amounts of their recoveries.
On the cross-appeal the judgment is affirmed.
WALKER, Circuit Judge, concurred in the disposition of this case, but died before the opinion was handed down.
NOTES
[*]   Writ of certiorari denied 57 S. Ct. 191, 81 L. Ed. ___.


272 S.W.3d 344 (2008)
STATE of Missouri, Respondent,
v.
Derrick L. BURNETT, Appellant.
No. WD 68187.
Missouri Court of Appeals, Western District.
October 28, 2008.
Motion for Rehearing and/or Transfer to Supreme Court Denied December 23, 2008.
Application for Transfer Denied January 27, 2009.
Matthew Ward, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Daniel N. McPherson, Asst. Attorney General, Jefferson City, MO, for respondent.
*345 Before JAMES M. SMART, JR., P.J., THOMAS H. NEWTON, and RONALD R. HOLLIGER, JJ.

Order
PER CURIAM:
Derrick Burnett appeals his conviction by a jury of felony resisting arrest, section 575.150 (RSMo), Cum.Supp.2005 for which he was sentenced to three years.
Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 30.25(b).


573 F.2d 1293
N. L. R. B.v.District 1199, National Union of Hospital Health Care Employees
No. 77-4119
United States Court of Appeals, Second Circuit
12/9/77

1
N.L.R.B.

2
ORDER ENFORCED*

*
 Oral opinion delivered in open court in the belief that no jurisprudential purpose would be served by a written opinion.  An oral opinion or a summary order is not citable as precedent.  Local Rule Sec. 0.23