author: STORCKMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Floyd Allen WEINDORF, Appellant.
    No. 49112.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1962.

      Claude W. McElwee, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
   STORCKMAN, Judge.

The defendant was found guilty by a jury of the offense of robbery in the first degree. At a separate hearing the trial court found that the defendant had been convicted of two prior felonies and assessed his punishment at thirteen years’ imprisonment in the penitentiary. The defendant was sentenced accordingly and he has appealed.

The case is before us on the transcript of the record on appeal and a brief filed by the state. Since the defendant has not filed a brief, our review will be of the assignments of error properly preserved in his motion for a new trial and the essential parts of the record. Supreme Court Rules 27.20 and 28.02, V.A.M.R.; State v. Slicker, Mo., 342 S.W.2d 946, 947[1].

In general the assignments of error in the defendant’s motion for new trial are that Senate Bill 117 enacted in 1959 as § 556.280, RSMo 1959, V.A.M.S., is unconstitutional because it violates § 23, Art. Ill, of the Constitution of Missouri 1945, V.A. M.S., that the trial court erred in admitting in evidence the police records of the City of St. Louis, and that the court erred in sustaining the objection of the circuit attorney to certain arguments of defendant’s counsel. The evidence favorable to the state is clearly sufficient to support the conviction and since no complaint is made on that score a brief statement of the facts will suffice.

Robert Angel and his wife Lulu conducted a partnership business known as Lou’s Confectionery on North 20th Street in St. Louis. At about 11:55 p. m. on March 21,1961, two men entered the confectionery and robbed them of approximately $590 in money. The robbers threatened the Angels telling them that it was a stickup and they would not get hurt if they did not move. One of the men kept one of his hands in the pocket of his jacket as though he had a gun, and the other took a butcher knife away from Mrs. Angel and held it in his hand while the robbery was in progress.

The police were notified and within thirty minutes after the robbery the defendant Weindorf was arrested about six blocks from the confectionery. At that time and at the trial he was identified by the Angels as one of the robbers. The other robber, William Erdelen, was also arrested and identified but was not tried jointly with this defendant. The defendant was represented throughout the trial and subsequent proceedings in the circuit court by court appointed counsel.

The motion for new trial asserts that § 556.280 violates § 23 of Art. Ill of the Constitution in that it embodies more than one subject and contains subjects which are not clearly expressed in its title. Insofar as pertinent here, § 23 of Art. Ill, provides that: “No bill shall contain more than one subject which shall be clearly expressed in its title, * * Section 556.280 provides in substance that any person previously convicted of a felony upon being tried and convicted of a subsequent offense shall receive such punishment as the trial judge determines within the limits provided by law for the subsequent offense. The title of Senate Bill 117 of the 70th General Assembly, which is § 556.280, reads as follows: “An Act to repeal section 556.280, RSMo 1949, relating to second and subsequent offenses, and to enact in lieu thereof a new section relating to the same subject and to the trial and punishment of persons convicted of crime following one or more convictions, to be known as section 556.280.”

The safeguards sought to be afforded by § 23, Art. Ill, of the Constitution ' are expressed in State v. Ludwig, Mo., 322 S.W.2d 841, 846[2], as follows: “One of the purposes of the constitutional requirement that a bill shall contain but one subj ect, clearly expressed in its title, is to prevent surprise or fraud upon members of the legislature and to fairly apprise the public of the subject matter of pending legislation.”

The coverage of the constitutional provision is stated in the early case of State ex rel. Wolfe v. Bronson, 115 Mo. 271, 21 S.W. 1125, 1126, in this fashion: “The section asserts only two propositions. The first is that no bill shall contain more-than one subject, and the second is that ⅛⅛ single subject must be clearly expressed in the title. If all the provisions of the bill have a natural relation and connection, then the subject is single, and this, too, though the bill contains many provisions. As to the second proposition, namely, that the single subject must be clearly expressed in the title, it is sufficient to say that the legislature may select its own language, and may use few or many words. It is sufficient that the title fairly embraces the subject-matter covered by the act; mere matters of detail need not be stated in the title.”

The burden of establishing the unconstitutionality of a legislative enactment rests upon the party questioning it, and a statute will not be held unconstitutional unless it clearly and undoubtedly contravenes some constitutional provision. State v. King, Mo., 303 S.W.2d 930, 932[2, 3].

Section 23, Art. Ill, of the 1945 Constitution should be liberally construed. In order to satisfy the provision’s requirements the title of a statute needs only to indicate the general contents of the act, and if the contents fairly relate to and have a natural connection with the subject expressed in the title they are within the purview of the title. State v. King, Mo., 303 S.W.2d 930, 932[1],

The defendant’s motion charges that § 556.280 RSMo 1959, V.A.M.S., contains more than one subject but wholly fails to specify what the foreign or unrelated provisions are. Nevertheless, we have examined the statute for proscribed material. We find that the provisions of the act all have a natural relationship and connection with the subject of the act which is the trial and punishment of persons convicted of crime following one or more convictions. State v. King, Mo., 303 S.W.2d 930. The subject of the act is single and not in violation of the constitutional provision.

Next the defendant contends that 'the title of § 556.280 is constitutionally defi■cient in that it does not state or indicate that the trial judge and not the jury should determine whether the defendant has a prior conviction and whether he has been imprisoned, fined, paroled, or placed on probation; and does not state or indicate that if the trial judge finds that the defendant has been previously convicted that the defendant shall receive such punishment provided by law as the trial judge determines; and does not state or indicate that a defendant who has not been discharged is subject to be prosecuted under the act; and does not state or indicate that the new statute is extended to include persons who have been convicted of an offense punishable by imprisonment and have not been discharged either upon pardon or upon compliance with the sentence imposed as provided by the statute prior to its amendment but who have been sentenced and subsequently placed on probation or paroled after being imprisoned. The question here is to determine if the title is broad enough to include the items referred to. They will all be considered together.

The title of the act states generally its purpose to repeal the previous section relating to second and subsequent offenses and to enact in lieu thereof a new section relating to the same subject and to the trial and punishment of persons convicted of crime following one or more convictions. The matters of detail which the defendant urges need not be separately stated in the title of the act since they all relate to the same subject. We find that the title fairly embraces the subject of the act. State v. Oswald, Mo., 306 S.W.2d 559, 561 [2, 3]; State v. King, Mo., 303 S.W.2d 930, 934[4]; State v. Thomas, 301 Mo. 603, 256 S.W. 1028, 1029-1030[6-9]. The defendant’s contention that § 556.280 is unconstitutional as being in violation of § 23 of Art. III of the Constitution is denied.

The next assignment is that the court erred in admitting police records in evidence because the officer who produced them had nothing to do with their preparation and was not qualified to identify them or to testify to the mode of preparation in the regular course of business. The specification of error in the motion for new trial is broader than the objections made at the trial. To the extent that the assignment on appeal exceeds the objections made when the evidence was offered, it is not well taken and will not be considered. State v. Pag-lino, Mo., 319 S.W.2d 613, 624[14],

Officer Herbert Lee testified without objection that he had been assigned to the Fifth District for eleven years and was assigned there during March 1961; that in the usual course of business official records were kept- of arrests including the time when they were made; and that he had with him the official arrest record of the defendant. The witness was then permitted to testify that the record showed that the defendant was booked at the station at 12:45 a. m. on March 22, 1961, over defendant’s objection that no foundation was laid for the officer to testify concerning the records or to make the records themselves admissible in evidence. The officer further testified that the records showed that the defendant was arrested on the street at 12:15 a. m. over the objection that the question called for hearsay. The records themselves were not admitted in evidence nor were they offered and no objection was made at the trial for that reason.

There is no merit to the objection that the records were hearsay. The purpose and effect of the Uniform Business Records as Evidence Law was to make admissible records or other entries which would be hearsay and inadmissible without the law. Sections 490.660-490.690, RSMo 1949, V.A.M.S.; State v. Hampton, Mo., 275 S.W.2d 356, 359[7].

The statutes providing for the identification of records by the custodian or other qualified witness leaves considerable discretion in the trial court with regard to the qualifications of the witness, the sources of his information, and the sufficiency of the identification. State v. Redding, Mo., 357 S.W.2d 103, 110[19]; Rossomanno v. Laclede Cab Co., Mo., 328 S.W.2d 677. We cannot say that the trial court abused its discretion in overruling the objections made.

During his direct examination the defendant testified that he requested the police officers to give him a lie detector test; that the officers kept asking him for sixteen days if he would submit to a polygraph test and he kept telling them that he would, but they never gave him any such test. During the argument to the jury defendant’s counsel stated that the defendant continually requested the police to give him a lie detector test while he was in custody. Thereupon counsel for the state objected on the ground that the argument was beyond the scope of the case because there was no provision for such an examination under the laws of Missouri and the objection was sustained. The defendant assigns as error the ruling of the court. It should be noted that when the objection was made and sustained the objectionable argument had apparently been completed and there was no request or admonition for the jury to disregard it.

The results of a lie detector examination are not admissible in evidence. State v. Stidham, Mo., 305 S.W.2d 7, 18 [20]; State v. Cole, Mo., 188 S.W.2d 43, 51 [12]. There is not the slightest showing in the record that the defendant was prejudiced by the sustaining of the objection.

On the contrary it appears that the defendant obtained a greater advantage than he was entitled to in these circumstances. The court committed no error in sustaining the objection.

We have considered all of the specifications of error contained in the motion for new trial and find them to be without merit. We have also examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08 and find them to be in proper form and free from error. Accordingly the judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: DALTON, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Willie Thomas ARMSTRONG, Defendant-Appellant.
    No. 49039.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1962.

      Leonard C. Jacobs,' St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., James P. Jouras, Special Asst. Atty. Gen., Jefferson City, for respondent.
   DALTON, Presiding Judge.

Defendant has appealed from a conviction and a sentence of ten years for burglary and three years for stealing, the sentences to run concurrently, and for which sentences he was committed to the Department of Corrections of the State of Missouri. Prosecution was under the Habitual Criminal Act, since it was alleged and shown that on October 14, 1946, defend had been convicted of murder in the first degree in the Circuit Court of the City of St. Louis, and had been sentenced to imprisonment in the state penitentiary for the term of his natural life. It was further alleged and shown that, on the same day, he had been convicted of two charges of larceny from a dwelling house, and had received a sentence of two years in the state penitentiary for each offense, but to he served concurrently with the prior-sentence. He had been released on parole on March 10, 1959. A trial of the cause was had to a jury and a verdict returned, finding defendant guilty of burglary in the second degree and stealing, as charged. After defendant’s motion for a new trial had been filed and ruled, sentence was imposed.

Error is first assigned on the court’s .•action in overruling defendant’s motion for judgment of acquittal presented at the close •of all of the evidence. It is contended that the evidence was insufficient to make out a submissible case of burglary in the second degree, or of stealing in connection therewith, hence a detailed review of the evidence is required.

In determining the sufficiency of the evidence to support the conviction for the crimes charged against defendant, the ■court accepts as true all of the evidence in the record tending to show defendant’s guilt, whether the same be circumstantial or direct in nature, together with all favorable inferences reasonably to be drawn therefrom. Defendant’s contradictory evidence, if any, is to be disregarded.- If a submis-sible case is made out, the truth of the testimony and the reasonableness of the inferences to be drawn are exclusively for the jury. State v. Brewer, Mo.Sup., 325 S.W. 2d 16, 20; State v. Morris, Mo.Sup., 307 S.W.2d 667, 668.

The evidence shows that Melville Friedman and his wife Goldie, as partners, owned and operated a pawnshop under the name of Friedman Loan and Brokerage Company at 2600 Chouteau in the City of St. Louis. The shop was located at the southwest corner of Jefferson and Chouteau Avenues. Jefferson is a north and south street, while Chouteau extends east and west. The jewelry window of the Friedman shop faced on Chouteau. Other windows exhibited clothing. ' Mr. Friedman, one of the owners, closed the' shop at 5:30 p. m. on March- 24, 1961. There were no windows broken when he left the shop. The windows of the pawnshop were equipped with a burglar alarm system of sensitive tape and connected with the American District Telegraph office, referred to as A.D.T. The tape extended around the windows and was about five-eighths of an inch wide. This alarm system was of the-silent type and did not sound at the building, but at the A.D.T. office and that office would notify the police department. When Mr. Friedman left the shop "the jewelry window contained a Zeiss Ikon, 35 mm. camera, a Cine Kodak, a Schick razor, another small camera and other articles.

At approximately four minutes after four o’clock on the morning of March 25, 1961, Police Officer George Sneed and Patrolman Avery, in a two-man police car, received a call from the police dispatcher that an alarm “was sounding over the radio” at 2600 Chouteau Avenue. The officers were then driving north on Jefferson Avenue and were approximately two and one-half blocks south of the Friedman pawnshop. They proceeded on north and, when they were within about a block of the comer of Chouteau and Jefferson, defendant “rounded the corner of Chouteau and proceeded to walk south on Jefferson on the west side of the street.” Defendant was proceeding along the east side of the pawnshop and, when the defendant had reached a point approximately thirty to thirty-five feet south of Chouteau, the police car met him and made a U-turn in Jefferson and approached him from the rear. At the time the officers first saw defendant he was walking, but, upon seeing the car turn around in the street to come up along side of him, defendant started to run, whereupon Officer Sneed stepped out of the car with a shotgun, ordered defendant to halt and advised him he was under- arrest. Defendant promptly stopped and offered no resistance.

At the time of his arrest defendant was holding a movie camera in his hand, and when first observed he had his hands folded, as he walked along the street, so that it appeared he was hiding something. He was, in fact, also holding an electric shaver and in his right coat pocket he had two more cameras. Defendant had no gun, gloves or sack and no cuts or scratches appeared on his hands. When the police arrived at the intersection of Jefferson and Chouteau they saw no other person in that vicinity, except the defendant, and there were no automobiles on the street or parked in the vicinity.

After the arrest of defendant, the officers examined the Friedman shop, 2600 Chou-teau. The officers found that the plate-glass window facing Chouteau had been shattered and a hole three by five feet made in it. In the shop, about ten feet back of the broken window, the officers found “a rough stone with an odd shape to it and of light gray material.” The stone had apparently been used to break the plate-glass window. The stone was also referred to as a piece of brick. The officers were admitted to the shop by a representative of' the A.D.T., who had a key and arrived about two minutes after the officers had arrested defendant. Mr. Friedman also received a telephone call from the A.D.T. office on the early morning of the 25th; he thought the call came sometime between 3 and 4 a. m., to the effect that the front window of his shop had been broken. He immediately went to his shop and observed that the jewelry window on the Chouteau Avenue side had been broken. He then proceeded to the Third District Police Station where he was shown three cameras and a Schick razor, which he identified as his property and as having been in his shop window when he left the shop on the evening of March 24, 1961. He was also shown another, piece of jewelry that did not belong to him. He testified that the Zeiss Ikon, 35 mm., camera cost him twenty-five dollars, the Cine Kodak two dollars, the Schick razor five dollars and the other camera two dollars. The articles had been taken in by him on pawn at his pawnshop “at one time or another,” and all were out of pawn at the time of the alleged occurrence.

When arrested, defendant was wearing a light gray three-quarter length car coat, a dark gray pair of trousers, a brown shirt, brown shoes and a dark gray hat. The car coat, trousers and hat were forwarded to the police laboratory for analysis, along with the rock, which the officers had obtained from inside the pawnshop, and some fragments of the plate glass taken from inside the Friedman jewelry window.

The officers did not see the defendant break the window and did not know what time the rock was thrown through the window, nor did they know when the alarm system was activated, nor did Mr. Friedman know what time lag there may have been between the time the rock was thrown through the window and the time the police were notified and arrived at the scene.

A chemist, employed by the St. Louis department, received the car coat, pants, hat, rock and some specimens of glass from the police officers and conducted a careful examination. His testimony tended to show that from the debris in a pocket of the car coat he found a small piece of glass which, upon comparison, he found to have the same refractive index and specific gravity as the specimen of glass submitted to him from the jewelry window. He also found some glass in a pocket of the pants that was not of the same type as the glass broken from the pawnshop window. In further examination, the witness had removed some fibers and fiber-like fuzz from the pockets of the coat and found several small pieces of fiber and fiber-like fuzz of the type normally found in a coat pocket. These he compared with a small group of fibers that were found on the brick or rock. The fibers on the rock were of several different colors and of the same type and kind of the fibers from the pocket of the coat. Some of the fibers from the coat pocket matched the fibers found on the rock and also the fibers on the glass from the coat pocket. He also said there was nothing special about the broken glass from the pawnshop window, since there was other glass in the St. Louis area of the same specific gravity and density as the glass broken from the pawnshop window. The fibers, mainly wool and cotton, found on the rock, although of the same color, type and kind as found in the coat pocket, did not necessarily come from the coat pocket and the witness made it ■clear that he was not testifying that the small fragment of glass found in defendant’s coat came from the pawnshop window; or the fibers on the rock from the ■coat pocket.

Defendant had been employed by the ■Grocers Terminal Warehouse Company for more than two years prior to his arrest and he frequently handled material in glass jars, even broken glass jars, but no empty glass jars. Defendant did not testify in his own behalf, but offered his wife, who said that defendant had left his home about 10:30 to 11 o’clock on the evening of March 24th, saying that he was going to look for his brother, Woodrow Armstrong, with whom he worked at the Grocers Terminal Warehouse Company. His brother, Woodrow Armstong, testified that he saw defendant between two and three o’clock on the morning of March 25, 1961, at the house of Jake Rucker in the 2700 block of Chou-teau Avenue and was told by defendant that he was going home. To reach a bus to go to his home defendant would pass the Friedman pawnshop. Defendant had received $97.80 in take-home pay on March 24, 1961, and had purchased some clothes for his wife and left her fifty dollars in cash from the proceeds of his check.

In support of the contention that the evidence is insufficient to sustain a conviction of burglary in the second degree, the appellant cites State v. Goddard, 316 Mo. 172, 289 S.W. 651, 653, where the court held the evidence devoid of any substantial evidence of burglary in the second degree. A short quotation from that case will demonstrate it to be inapplicable. The court said: “There was an utter failure of proof to establish the corpus delicti in this case. In order to establish the same, it was necessary for the state to show beyond a reasonable doubt that defendant, or some one, on the date aforesaid, burglariously broke into said building with the intent to commit a crime. For aught that appears from the evidence, the few dollars worth of goods found in the sack, if they were ever in said building, may have been bought in the ordinary course of business, instead of being obtained by burglary. The state not only failed to produce substantial evidence tending to show that defendant burglariously broke into said building on the date aforesaid, with the intention of committing a crime, but there is an entire failure of proof tending to show that he was in the building on said date, or that said goods were ever stolen from the store in the commission of a burglary, or otherwise.”

In the case before us a three by five foot hole had been broken in the plate-glass of the Friedman jewelry window and three cameras and a razor removed. The inference of human agency could be inferred from the fact that a large rock was found some ten feet inside the store bearing fibers identical in color and texture of those taken from the defendant’s coat pocket and a piece of glass from his coat pocket was of the identical refractive index and density of the glass in the window. Further, the described property, which had been in the window, had been removed therefrom and was in defendant’s possession as he was seen to turn the corner of Chouteau and Jefferson within a few feet of the broken window from which the goods were taken. These facts were sufficient to support a finding that the breaking and entering was done by human agency with the intent to steal therein. In addition, upon the arrival of the police car and its U-turn in the street, defendant began to run until he was ordered to halt and placed under arrest with the aid of a shotgun.

Appellant further insists that the evidence of burglary, second degree, is completed circumstantial and entirely consistent with defendant’s innocence; and that the verdict was reached by “guess, speculation or prejudice.” Appellant cites State v. Archer, Mo.Sup., 6 S.W.2d 912, 914; State v. Bayless, 362 Mo. 109, 240 S.W.2d 114, 119. These cases merely state the general rule that, “Where the evidence is ‘entirely circumstantial the facts and circumstances relied upon by the state to establish guilt must not only be consistent with each other and with the hypothesis of defendant’s guilt, but they must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to guilt as to exclude every reasonable hypothesis of innocence.’” (240 S.W.2d 114, 119 [4,5].) In the Bayless case the evidence was held sufficient. In. the Archer case the evidence was held insufficient and the reasons were stated. In that case the defendants were charged with stealing four tires off of a truck. The court said: “Appellants were not seen nearer to the truck than an eighth of a mile, or, as some of the witnesses expressed it, ‘a half a quarter.’ Appellants were not even coming from the-direction of the truck when seen, for Car-reck testified that their automobile was ‘at the side of the public road’ when he first discovered it. Appellants were not found in possession of, nor even near to, the stolen tires. Said tires had neither been discovered nor accounted for at the time of the trial.” (6 S.W.2d 912, 913, 914.)

Appellant also cites State v. Casey, Mo. Sup., 247 S.W. 114, 116, but in that case the court pointed out that the evidence signally failed “to show any conspiracy, or that defendant was ever in the bank building, or that he had any connection with the red automobile described in evidence, or that any of the stolen property was found in his possession at any time, or that he was ever in the village of St. Clair, where the robbery occurred.”

It will be unnecessary to again review the evidence shown by the record in this case. It is sufficient to say that the evidence as to burglary, second degree, was entirely sufficient to meet the requirements of the rule applicable to a circumstantial evidence case; and that, if the jury believed the State’s evidence and drew therefrom the reasonable favorable inferences, the evidence was substantial and sufficient to support the verdict as to burglary. State v. Burton, Mo.Sup., 357 S.W.2d 927, 931(4).

Appellant further contends that the evidence was insufficient to sustain a conviction of stealing and cites State v. Fogle, 211 Mo.App. 18, 244 S.W. 105 and State v. Knolle, 90 Mo.App. 238. Neither case aids the appellant. In the Fogle case a stolen tire was found on defendant’s automobile while it was parked in a garage in the city of Memphis and the state failed to-prove any connection between defendant and the stolen tire and the opinion points; out that “the state not only failed to prove-that the defendant placed the automobile, on which the stolen tire was found, in the Memphis garage on October 5, 1919, but failed to prove that said tire was on said car at that time.” '(244 S.W. 105, 107[1].) In the Knolie case the court said: “Appellant had no boxes on his person and those the policemen saw him and his companion tampering with, were not removed from their places. There was no theft of them, of course, because there was no asportation.” (90 Mo.App. 238, 240.)

Under this assignment appellant also insists that there was a complete failure to prove “that the items of property allegedly stolen had any value at the time of the alleged taking”; and that, therefore, an essential element of the offense charged is lacking.

In determining whether personal property has “value,” and the amount thereof, as the term is used in Secs. S60.1S6 and 560.161 RSMo 1959, V.A.M.S., reference, of course, is not to “the value to the owner,” but as to the value of the property on the open market. In this case it appears that the property in question, which was the subject of the larceny, was exhibited in the jewelry window of the Friedman shop and an inference could be drawn that it was being offered for sale. The amount paid for the property by the proprietor of the shop was some evidence of its value and, in addition, the particular items in question were offered in evidence before the jury and were of the type and kind from which the jury might well judge whether or not they had any value. As there was evidence in the record to show burglary in the second degree and a finding thereof was made by the jury, it was only necessary for the evidence, as to stealing, to show that the property had some value, and for the jury to find that, at the time the property was taken, it had some value in order to support the finding of “stealing” in connection with the finding of burglary. In the circumstances of this case the value of the property stolen was immaterial so long as it had some value, and the evidence was sufficient from which the jury could so find. State v. Duncan, 336 Mo. 600, 80 S.W.2d 147, 151 (8-10); State v. Ruyle, Mo.Sup., 318 S.W.2d 218, 221(5). Further, the circumstances under which appellant was arrested and found to be in possession of the mentioned property were sufficient to support the jury’s finding that defendant was guilty of the offense of stealing in connection with the burglary.

Appellant further contends that the court erred in giving Instructions 1, 2 and 3 because said instructions “referred to the pawnshop, allegedly burglarized, and the articles of property, allegedly stolen, as being the property of Melville Friedman, d/b/a Friedman Loan and Brokerage, which was contrary to the uncontroverted evidence that said shop and property were actually owned by Melville Friedman and Goldie Friedman.” Appellant’s theory is that instructions should be based upon the evidence; and that to submit ownership of one of the two partners was detrimental to defendant and denied him a fair and impartial trial, since it would indicate to the jury that it might take liberty with the evidence, or lack of evidence, on other issues.

Appellant concedes the existence of Supreme Court Rule 24.06, V.A.M.R. which provides: “When any offense shall be committed upon or in relation to any property belonging to several partners or owners, the indictment or information for such offense shall be deemed sufficient if it allege such property to belong to any one or more of such partners or owners, without naming all of them.” The information in this case was, therefore, sufficient and the submission in the instruction following the information was also sufficient. Proof of appellant’s guilt of the crimes charged, or either of them, depended upon the question as to whether appellant feloniously broke into the premises of another, and to whether he stole from said premises the property of another as described in the charge. Appellant does not contend that Melville Friedman had no proprietary interest in the business. His occupancy and possession of the building and his interest as an owner of the property is not questioned. In any event, the proprietary interest of Melville Friedman in the pawnshop and in its contents was adequately proven, and it clearly identified him as an owner of the business. The failure of the instructions to submit to the jury the possession of the building and the ownership of the property as being in the partnership, rather than in Melville Friedman, as an individual, was not material to appellant’s defense or to the establishment of his guilt of the offenses charged. The assignment is without merit. See State v. Zammar, Mo.Sup., 305 S.W.2d 441, 442 (1,2) ; State v. Hedgpeth, 311 Mo. 452, 278 S.W. 740, 741(2).

Appellant further contends that Instruction 2 is erroneous because it “fails to require the jury to find that defendant had criminal intent to steal and convert to his own use at the time said property was allegedly taken,” and because “said instruction, as framed, presupposes a verdict of guilty on the charge of burglary.” When all of the instructions are read together, as they must be, it is plain that the essential elements of each offense, both burglary and stealing, are correctly set forth. Instruction 2 does not presuppose a finding of a verdict of guilty of burglary, but clearly and concisely requires a finding thereof beyond a reasonable doubt as submitted by Instruction No. 1 as a condition precedent to any finding of the companion offense of stealing as submitted in Instruction No. 2. We find nothing in the language of Instruction 2 which would mislead the jury or convey a false impression or create a “presupposition” of defendant’s guilt or innocence on the charge of burglary. See Instruction No. 2, State v. Speritus, 191 Mo. 24, 90 S.W. 459, 460.

Appellant further contends that the court erred in giving Instruction No. 5 because the instruction fails 'to require the State to prove defendant’s guilt beyond a reasonable doubt in that in the instruction, by defining reasonable doubt as “a substantial doubt” as to defendant’s guilt, “imposes a lesser burden of proof upon the state of defendant’s guilt than the law requires.” We find no merit in this assignment since the instruction, in the form given, repeatedly has been approved by this court. See State v. Jackson, Mo.Sup., 338 S.W.2d 848, 852; State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22, 26(7); State v. Drake, Mo.Sup., 298 S.W.2d 374, 377(7-8). Since the instruction in the form given has so often been approved it is needless to further discuss the objections now levelled against it.

Appellant further contends that the court erred in giving Instruction No. 6 because the instruction “is confusing and permits the jury to make ‘a roving commission’ and consider matters outside the evidence, and fails to require the jury to find that the circumstantial evidence must not only be consistent with the guilt of defendant but also inconsistent with his innocence.” Appellant again cites the Archer and Bayless cases, supra, and closes his argument with the words: “It is the contention of defendant that the. above instruction does not set out with sufficient clarity and emphasis the requirement that such circumstantial evidence must be inconsistent with innocence.” The instruction included the following sentence: “Crime may be proved by circumstantial .evidence as well as by direct testimony, but circumstantial evidence should always be cautiously considered, and to warrant a conviction it must be consistent with Defendant’s guilt and must exclude every reasonable hypothesis or supposition consistent with Defendant’s innocence.”

A careful consideration of Instruction No. 6 discloses that it is not subject to the criticism levelled against it. The terminology of an instruction somewhat similar was approved in State v. Fletcher, Mo.Sup., 244 S.W.2d 98, 103. In any event, no certain and specific terminology is required in a circumstantial evidence instruction so long as it advises the jury, in substance, that the circumstances proved must be consistent with each other and with the hypothesis that the defendant is guilty, and inconsistent with any theory of his innocence and with every reasonable hypothesis, except that of guilt. State v. Conway, 348 Mo. 580, 154 S.W.2d 128, 131(4, 5); State v. Maggard, 250 Mo. 335, 157 S.W. 354, 357.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. John A. BOZARTH, Appellant.
    No. 49171.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1962.

      Taken as submitted by appellant.
    Thomas F. Eagleton, Atty. Gen., James "W. Steele, Sp. Asst. Atty. Gen., Jefferson ■City, for respondent.
   DALTON, Presiding Judge.

Defendant was charged with mur■der in the first degree in an information filed in the Circuit Court of Daviess County •on October 23, 1959. Thereafter, the cause went on change of venue to Caldwell County, where, after change of judge, the cause was tried to a jury before Honorable Frank D. Connett of the Fifth Judicial Circuit, sitting as special judge. On June 29, 1961, the jury returned a verdict finding defendant guilty of manslaughter, but was unable to agree on the punishment. Thereafter the court assessed defendant’s punishment at ten years’ imprisonment, and he was committed to the Department of Corrections at Jefferson City, Missouri. Defendant has appealed, but has not favored us with a brief, hence we shall examine such assignments of his motion for a new trial as are •sufficient to meet the requirements of Supreme Court Rule No. 27.20, V.A.M.R.

Defendant offered a motion for judgment of acquittal at the close of all the •evidence, which motion was overruled. While the action of the court in this regard is not assigned as error in the motion for a ■new trial, a brief statement of the evidence is essential to an understanding of certain assignments of error contained in the motion for a new trial.

Defendant was charged with the murder of Millard F. Cain on August 12, 1959, in Daviess County. It was the State’s theory that defendant suspected Cain of having stolen a shotgun from him; that he induced Cain to visit defendant’s cabin for a drink of wine and there beat him with a hammer. The injuries sustained, however, did not result in death until August 16, 1959. The State waived the death penalty.

On August 12, 1959, defendant was living in a cabin on the west side of Highway 69 at the east edge of Pattonsburg, Missouri. He had rented the cabin from one War ford about August 1 of that year. The cabin in question was one of a group of four or five small cabins known as the Elms cabins. These cabins, apparently in bad repair, had been rented in connection with a service station, which was no longer in operation. Defendant’s cabin consisted of two rooms, a closet and a “cubbyhole” that was formerly built for, or used as, a shower stall. Entrance to the cabin was from the north into a large room, with a smaller room immediately south, and to the left of the south room was a smaller room, or closet, which measured five or six feet by four feet, and to the east of this was the small “cubbyhole.” Some evidence showed it to be only about two feet wide. On the date mentioned defendant was fifty-nine years of age, five feet eleven inches tall and weighed approximately 160 pounds. In the past he had worked at various types of labor, but was then working for the MFA, hauling cobs. He was in the habit of drinking wine to excess and, after his character was in issue, the State showed that his reputation for turbulence and violence was bad.

The deceased, referred to as Millard “Petey” Cain, was sixty-nine years of age, about five feet six inches tall and weighed approximately 135 to 140 pounds. He was a farm laborer and fisherman and was referred to as “an alcoholic and wino” and also as “one of the town drunks.” There was evidence that frequently, when drunk, he would go to the Elms cabins and “sleep it off.”

On the issue of motive, the State’s evidence showed that defendant stated he had caught “Petey” Cain pilfering around in his cabin a week or so prior to the date in question; that Cain “had stole a shotgun off him and he was laying for him to catch him in there.” He said the shotgun belonged to Warford’s son. Defendant also testified that he had run into “Petey” Cain on August 11, 1959, about 100 yards down the highway from Lambert’s Liquor Store. It was clear from defendant’s evidence that defendant suspected Cain of the theft, since defendant testified as follows: “Q What happened then? A He said: ‘Where are you going?’ and I said, ‘Home’. Q Was there any other conversation? A We got on down there and he said: ‘I heard you had a gun stolen’, and I said, ‘How did you know?’, and he said: ‘Norman said he thought he heard you talking about it up in front of Grahams’, and I said: 'I want to find it if I can.’ He said: ‘There has been a lot of stuff stolen’, and I said: ‘Yes, and I don’t want no one laying around there drinking like it has been, because I have the whole place rented now.’ Q You wanted him to stay away? A Yes.”

The record also shows that defendant had borrowed the hammer used in the beating from a Mr. Shipers, who worked for the MFA, and that he had borrowed it on Friday before the killing on Wednesday. Defendant told Robert Smith (defendant’s witness) that Cain had been around, and he wouldn’t say that Cain stole the shotgun, but “he wasn’t above stealing it” and that he (defendant) would have to pay $125 to Lyle Warford. On the date in question, August 12, 1959, one Walker took defendant to Lambert’s Liquor Store about dark. Lambert testified that he sold defendant a pint of wine from his liquor store. He said defendant, arrived at the store about nine o’clock and stayed at the store until closing time, about 10 p. m. At that time defendant was not intoxicated and appeared to be in a normal condition. He did not open the wine while at Lambert’s place. The store is located on Highway 69, a quarter of a mile north of Pattonsburg. The defendant left on foot.

Woodrow Morris, the operator of a service station on Highway 69 about one block north of the Elms cabins, saw the defendant and Cain together at about five minutes past ten on the night of Wednesday, August 12, 1959. They were going south on foot. There was a street light by Morris’ place of business that lighted the area so that he could see both of them plainly in the lighted area. The two men were coming down the road together from north of his place. He had first seen them across the highway and about 200 feet or so north. After they came closer he saw it was defendant and Cain. Cain was on Morris’ side of the highway going south and defendant stayed oni the east side going south. They walked' down as far as the front of Morris’ place and past there to the intersection and Cain, stopped at the intersection and lit a cigarette. They were then only a block from the-Elms cabins. The only conversation they-had was when defendant asked Cain if he had had a drink and Cain said “No”, “I’ve-quit — clear quit.” Defendant kept walking- and then asked the same question again and got the same answer. After they passed,, defendant walked across the highway to-Cain and they walked on together on the-west side of the street, going south in the-direction of the Elms cabins. Morris observed nothing after that except the light in the defendant’s cabin, but he did not know-defendant lived there at that time. The-witness had never seen defendant and Cain together on any previous occasion. Defendant was half way down the block to the south when Cain met up with him. The city-park takes up nearly all of the block, except-what is occupied by these old cabins and an old filling station. A Mr. Woodring, who-' was mowing in the city park, saw Mr. Cain about 9:30 p. m. coming from a westerly-direction, going east, and waved at him. He-appeared normal.

Cain’s son also testified that, on the evening of August 12, 1959, Cain left the son’s, residence about 10 p. m. It was then dark. His father had been drinking but was not drunk, only about half intoxicated. Defendant’s cabin was about one block from the home of Cain’s son. When Cain left, he went down the alley and through the park in the direction of the Elms cabins. In addition to hunting and fishing, and doing farm work, the deceased also drew a small pension.

At approximately 10:15 to 10:30 on the night of August 12, 1959, defendant went to the home of Sam Graham and requested that he call an undertaker as there was a dead man in his cabin. Mr. Graham called Dr. Baumgardner, Coroner of Daviess County. Dr. Baumgardner proceeded to the Elms cabin where he found the defendant and defendant showed him where Millard “Petey” Cain was lying. Cain was unconscious, but alive. Dr. Baumgardner then left Cain and defendant, and went and called the marshal and an undertaker. They all arrived back at the cabin at approximately the same time, and Cain was removed to the Noll Memorial Hospital at Bethany, Missouri, by ambulance. Defendant was left alone in the cabin. Baumgard-ner and the city marshall, Ladd, found Cain lying on his back, with his head in the northwest corner of the shower stall and his legs and feet extending out into the closet. There was nothing in his hands. There was no box in the “cubbyhole” or closet where Cain was lying. It was most difficult to remove the body from the shower stall or “cubbyhole” due to the smallness of the space and the cramped position of the body. Cain’s head was very bloody, his injuries were very recent, and there was much blood on the floor and walls of the room that “takes you into the little closet.” At the time the body was removed from the shower stall, Dr. Baumgardner did not notice anything in the place from which Cain’s body was removed; however, he saw a box of dynamite sitting alongside of a suitcase at another place in the cabin. Mr. Robertson, the undertaker, did not see anything on the floor of the shower stall when Cain was removed. At the time the undertaker, coroner and the city marshal were removing Cain from the cabin, the defendant showed them the hammer in question and they observed blood on it. Subsequently the sheriff was called and went to the cabin and found defendant, who picked up the hammer and said, “This is the hammer.” It was a claw hammer. Subsequently, the same night the marshal, the sheriff and the prosecuting attorney returned to the scene and found defendant alone. At that time there was a box of dynamite in the corner from which Cain’s body had been taken. An examination of the box revealed no blood on it except for a spot on the bottom. This box was about four inches deep, twelve to sixteen inches wide and two feet long, and contained dynamite. Defendant said it had been in the corner all of the time; however, Ladd, like Baumgardner and Robertson, had not seen the dynamite in the shower stall at any time until their return after Cain had been removed. At the time defendant requested Mr. Graham to call the undertaker defendant was staggering and Mr-Graham smelled alcohol and thought defendant was drunk, but he talked intelligently. Ladd, the marshal, -testified that defendant had been drinking, while Sheriff Houghton stated that defendant was nervous and had been drinking, but he would not say he was drunk.

When defendant asked Mr. Graham to call an undertaker he told Graham he found Millard “Petey” Cain in his house and he had “popped him.” He told Dr. Baum-gardner he had caught Cain in the cabin and “worked him over with a hammer.” He told the city marshal, Ladd, that he caught “Petey” Cain pilfering around and knocked him in the head with his hammer. Defendant also told Ladd that “he had the hammer to beat up Pete Cain if he caught him in his home there.” He told the sheriff he had caught Cain in his cabin and “clobbered him.” Later he told the sheriff “I went home, unlocked the cabin and heard a noise back in the back there. That hammer was laying on the table in the front room, I got it and went back in there and caught Petey Cain down on his knees over that box of dynamite” and “I clobbered him with it.” After he was arrested and the sheriff was taking him to Gallatin to jail, he told the sheriff that he (defendant) “wanted to kill him (Cain) and I hope the son-of-a-bitch dies.” Later he told the sheriff that “he had hit Cain with the flat side of a hammer, that Cain had fell over face up and he hit him in the face” and that he hit Cain twice. When defendant learned that Cain had died he stated to the sheriff that Cain did not have a weapon and that he did not hit Cain in self defense. When he was on his way to jail he told Lois Brown he had killed Millard Cain.

Albert F. Nibbe, M. D., examined Cain on the night of August 12, 1959 and, when he examined him, Cain was unconscious and in a light coma and there were lacerations of the scalp over the anterior portion of the scalp with abrasions of the right shoulder and some superficial abrasions and lacerations on the face and on the hand. Four or five areas of the scalp required suturing. There were approximately twelve or fourteen marks on the head and shoulders and the lacerations on Cain’s head were of a double-type lacerations. Cain died about 4 p. m. on August 16, 1959, and it was the doctor’s opinion that Cain died of inter-cranial hemorrhage, which occurred secondary to skull fracture and a penetrating wound of the skull. The X-rays of the skull indicated an extensive fracture. The doctor was of the opinion that the damage to Cain’s skull was apparently caused by multiple blows from a sharp instrument, as opposed to a blunt instrument, although he further stated that it was his opinion that the wounds could have been caused from the claw end of a claw hammer; that from an examination of the wounds he could not state whether Cain was assaulted from the front or the rear, but from their distribution it would appear that Cain was struck from somewhat above the skull.

Defendant testified that he was talking to Cain on the evening of August 11, the day preceding the difficulty and not on August 12. Defendant’s version of the occurrence was that, when he walked into his cabin at approximately 10 p. m. on the night of August 12, 1959, he heard a noise back in the closet and he picked up the hammer from off the table. At that time a man pushed' him and hit him in the chest and said, “Yotu son-of-a-bitch.” Defendant staggered back against the doorway and then hit the other-person twice with the flat head of the hammer. The other fellow then said: “I’ll fix you.” Defendant recognized the voice of the person, who had pushed and hit him,, as that of Millard “Petey” Cain. Defendant further testified: “I kept pushing with one hand and I take the second lick and he staggered back in the corner. I turned the light on and I seen he was knocked out.”' Defendant struck Cain the second blow while both of them were in the clothes, closet. He “did not hit Cain [while] in the-cubbyhole.” Defendant further stated that he had a box of dynamite in the closet and that Cain was lying with one shoulder on. this box of dynamite. He had never drunk' wine with Millard Cain, nor associated with him. He was afraid of Cain because of. Cain’s bad reputation as a violent and turbulent man. Defendant had borrowed the hammer to put up kitchen shelves.

Viewing the evidence in a light favorable to the State, it is clear that the court did not err in overruling defendant’s motion for a. judgment of acquittal as tendered at the close of all the evidence.

It is doubtful that the first assignment in defendant’s motion for a new trial' complies with Supreme Court Rule 27.20, but, assuming that it does, it is directed to-certain portions of Dr. Albert F. Nibbe’s testimony as contained in a deposition offered and received in evidence. Defendant says that the witness was not competent or qualified to give expert testimony as. to the force or number of blows inflicted on the head and body of the deceased. Appellant says that this testimony invaded the' province of the jury and was merely the conclusions and speculations of the witness,,' and the evidence should not have been ad4 •mitted. Dr. Nibbe was a physician and surgeon licensed by the State of Missouri, and he was a member of the staff of the Noll Memorial Hospital at Bethany, Missouri. He had received a degree of Bachelor of .Science from Northwestern University at Evanston, Illinois and a degree of Doctor ■of Medicine from the medical school of the .•same University, and interned at St. Luke’s Hospital in Chicago. He made a careful physical examination of the deceased and ‘treated him before his death and made an ■ examination of the X-ray films that were ttaken. He was clearly qualified as a medi<cal expert, and competent to testify with reference to the matters in question. As ■such expert he was in a position to aid the jury in determining the force necessary to produce the wounds and skull fracture and to determine the number of blows struck. !His testimony did not invade the province of •the jury, even though his opinion may have 'been upon specific issues to be decided by •them. On this record we hold that the trial •court did not abuse its discretion in admitting the physician’s testimony. State v. Terry, Mo.Sup., 325 S.W.2d 1, 7(10,11); State v. Paglino, Mo.Sup., 319 S.W.2d 613, 623(9-12); State v. Thresher, Mo.Sup., 350 ,S.W.2d 1, 8(13,14).

The second assignment is that the •court erred in overruling objections to 'State’s Exhibits “B” and “C”, which were •photographs of deceased’s naked head and ■showing the injuries inflicted. Defendant says there was no contention that deceased’s •death did not result from blows inflicted with a hammer and that the admission of •the exhibits was cumulative and repetitious; they were offered to inflame the jury; and they were erroneous and prejudicial to defendant. The exhibits appear in the transcript and merely show certain marks on the top of the head of deceased. They apparently were taken after cleansing and suturing had been completed. The wounds appear only as four or five lines or marks and a spot on the top of the head. The exhibits were clearly competent to show the exact location of the wounds and they corroborated the testimony of the State’s witnesses. We find nothing inflammatory about them. The court did not err in admitting these exhibits in evidence. State v. Moore, Mo.Sup., 303 S.W.2d 60, 65-66; State v. Thresher, supra, 350 S.W.2d 1, 7(9-11).

The third assignment is that the court erred in refusing to permit defendant to testify as to his knowledge of deceased as a violent and dangerous man because of his personal knowledge of specific incidents and acts of the deceased, which testimony, if admitted, would have tended to justify the defendant in continuing to strike the deceased when he determined who he was. Defendant further contends that the giving of Instruction No. 10 (without permitting defendant to testify that the deceased was of a rash, turbulent and violent disposition since defendant had such knowledge because of his knowledge of specific acts of violence by defendant) did not remedy the refusal of the court to admit defendant’s knowledge of the mentioned specific acts of violence by the deceased. There was evidence that deceased had a reputation for being of a violent and turbulent disposition, of which defendant well knew. The court did not err im refusing to permit defendant to testify concerning specific acts of violence by the deceased, because the deceased’s reputation could not be proven by evidence of specific acts of violence. State v. Smart, Mo.Sup., 328 S.W.2d 569, 575 (9-11) ; State v. Cavener, 356 Mo. 602, 202 S.W. 869, 874(6); State v. Carson, Mo. App., 239 S.W.2d 532, 536(3-6). Since the general reputation of the deceased and defendant’s knowledge thereof was shown by the evidence, the court properly instructed the jury to the effect that, if they believed and found from the evidence that the deceased was of a turbulent and violent disposition, and that defendant had knowledge of such disposition, such was a circumstance for the consideration of the jury in considering reasonable cause for defendant’s apprehension that the deceased intended to kill him or do him some great bodily harm.

Defendant further contends that the court erred in giving Instruction No. 17 which urged the jury to attempt to reach a verdict if that could be done. Defendant contends that the instruction was given too soon after the jury had been deliberating and overemphasized the necessity for the jury to bring in a verdict in the case. Defendant insists that the fact that the jury did not fix the punishment shows that they were not allowed adequate time to bring in a verdict and fix a punishment.

From a careful examination of the record we were unable to determine when the jury retired to consider their verdict or how long they had been deliberating before the instruction was given; however, before ordering the evening meal prepared, the court recalled the jury to see what progress was being made. At that time the foreman advised the' court that they would not reach a decision by 6 p. m., but that by 5:30 p. m. he might be able to give the court some more definite information. Subsequently, the court recalled the jury and gave Instruction 17. Thereafter, following a recess, the jury retired to deliberate further and subsequently brought in the verdict as follows: “We, the jury in the above entitled cause, find the defendant guilty of manslaughter, and his punishment to be set by the Court, as the jury could not come to decision on length of sentence, /s/ Raymond Amery, Foreman”.

From a careful consideration of the full content of Instruction No. 17 we have reached the conclusion that the instruction in no way tended to coerce the jury, nor did it overemphasize the importance of an agreement being reached. There is no indication that it in any way influenced the jury to reach the particular verdict which was returned, and we are satisfied that the instruction, in the form given, could not have prejudiced the rights of the defendant. It is well settled that it is permissible for the court to temperately and moderately remind the jury of the importance of agreeing upon a verdict, if that is reasonably possible, and particularly so where the court instructs the jury as was done in this case, in part, as follows: “Open and frank discussion by you in your jury room of the evidence in this case may aid you in agreeing upon the facts; however, no juror should ever agree to a verdict that violates the instructions of the Court, nor find as a fact that which under the evidence and his conscience he believes to be untrue, yet each of you should respect the opinions, of your fellow jurors as you would have them respect yours, and in the spirit of tolerance and understanding endeavor to bring the deliberations of the whole jury to an. agreement upon a verdict.”

The matter of subsequently instructing a jury as to the desirability of agreeing' upon a verdict, where such jury has had the cause under consideration for more than a reasonable time, has been discussed in-numerous cases. See State v. Stegall, Mo. Sup., 327 S.W.2d 900, 901(1, 2). Instruction-17 was not given to the jury in the first instance, nor did it advise the jury that, if they could not reach a verdict as to punishment, the court would fix the punishment, nor did' it deal with the issue of fixing punishment at all. See State v. Stuver, Mo.Sup., 360 S.W.2d 89, where a jury was so instructed in the first instance. And also see State v. Keller, Mo.Sup., 344 S.W. 65, 68(5-7) where a judgment was reversed in a case where an-instruction was held to be coercive of the jury. In the case at hand Instruction No. 17 fully conformed to the ruling stated in the-Stegall case and there is nothing in the record to show that adequate time for deliberation was not given prior to the giving of the instruction, or that the instruction, when-given, resulted in a hasty verdict of guilty without giving adequate time for the jury to fix the punishment, or to consider all of the evidence, including that offered on behalf of the defendant.

Error is assigned on the refusal of defendant’s Instruction No. F “as to threats made by the decedent in regard to the defendant or anyone attempting to live in the ■cabin in question, both communicated and uncommunicated threats, which justified the •defendant being fearful of his person and justifying the defendant in his conduct and in the amount of force used to repel the •decedent at such time and place as is in evi•dence”, so that the jury “could consider the same in determining who was the aggressor at that time and place.” The instruction was directed to threats “prior to the killing.” “We find no such evidence in the record. ■From a careful reading of the entire record the only evidence indicating a threat occurred after the time the defendant admits that he had struck deceased on the head twice with the hammer. Clearly the instruction was not directed to this subsequent statement by deceased, “I’ll fix you.” No evidence of uncommunicated threats appears in the record.

The next assignment is that “the Court erred in giving Instruction No. 4 which contains an attempt to define the phrase, ‘Reasonable Doubt’, and that the attempted definition of the same was and is inaccurate in law and does not correctly and fully define ‘reasonable doubt’, and said instruction mislead and confused the jury.” The assignment does not comply with the requirements of Supreme Court Rule 27.20, but was apparently directed to the words ■"if you have a reasonable doubt of the guilt of the defendant, you must acquit him; but such doubt to justify an acquittal, must be a substantial doubt founded on the evidence, or lack of evidence, and not a mere possibility of the defendant’s innocence.” The instruction is in approved form.. The court did not err in giving Instruction No. 4. State v. Armstrong, Mo.Sup., 361 S.W.2d 811, and cases cited therein; also State v. Velanti, Mo.Sup., 331 S.W.2d 542, 545(4); State v. Willard, 346 Mo. 773, 142 S.W.2d 1046, 1051(8).

Error is assigned on the giving of Instruction No. 9, a manslaughter instruction. Defendant says there was no evidence that defendant killed in the sudden heat of passion and that the instruction duplicated Instruction No. 5, the main instruction on manslaughter. The instruction was directed to defendant’s alleged finding of deceased in his home without permission and deceased’s assault upon him, and to the heat of passion and fear aroused by deceased’s presence under the circumstances. According to defendant, the deceased first assaulted him and struck him in the chest. The issue of defendant’s guilt of the crime of manslaughter was properly submitted. Clearly, the instruction did not overemphasize or magnify the finding of defendant guilty of manslaughter, as contended in the motion for a new trial. The court did not err in giving the instruction. State v. Smart, Mo.Sup., 328 S.W.2d 569, 574(4, 5-7, 8); State v. Littlejohn, 356 Mo. 1052, 204 S.W.2d 750, 752(3) and State v. Davis, Mo.Sup., 34 S.W. 2d 133, 135(3-5).

is assigned on the giving of Instruction No. 13, as follows: “The Court instructs the jury in making up their ver-verthey will entirely disregard all testi-testiwith reference to the defendant hav-havbeen drinking. The influence of intox-intoxliquors cannot justify, excuse or mitigate, and the fact, if it be a fact, the defendant may have been under the influ-influof intoxicating liquor to any degree at the time of the deceased’s death, cannot be taken into consideration by the jury in mak-makup their verdict.” (Italics ours.)

The assignment of error, in three sentences, is that the instruction, is “an unfair and unwarranted comment on the evidence for the reason that intoxication was not a defense on the part of the defendant, and for the reason that the Court told the jury that they should entirely disregard all testimony in reference to the defendant having been drinking”; that “The statement of the Court that the jury should disregard all testimony with reference to the defendant having been drinking was prejudicial to him and denied him a fair and impartial trial because the evidence as to his drinking was material and to the judgment he would [sic] in repelling an intruder and aggressor in his home and was material in connection with any statements he made after the alleged crime occurred to the coroner, city marshal? and law enforcement officials when the defendant was in their custody”; and that “It is common knowledge that an intoxicated person is not capable of exercising sound and prudent judgment nor expressing himself coherently or sensibly nor in realizing his rights, or his position as an accused murderer.”

Defendant offered no evidence tending to show that he was drinking or under the influence of intoxicating liquor when he testified at the trial, or when he made any statements, admissions or declarations against interest prior to the killing in question. While it was necessary for the State to use subsequent admissions and declarations of the defendant to make out a prima facie case for the jury, yet, when defendant testified, the killing of Cain by defendant was admitted, the actor identified and the method used to produce death confirmed in conformity to the defendant’s prior admissions and declarations as shown by the State’s evidence. Defendant at no time made confession of guilt, or admitted criminal conduct. While there is some authority to the effect that the fact of intoxication may be considered by a jury as lessening the weight of a confession (State v. Smith, Mo.Sup., 342 S.W.2d 940, 941; 23C.J.S. Criminal Law § 828), still in this case, the killing in accordance with the subsequent declarations was admitted by defendant at the trial. The State’s case, therefore, does not rest upon alleged admissions, confessions or declarations made by defendant while intoxicated, but upon other evidence. The instruction, as drawn, expressly applies to “the time of deceased’s death” and not to the time of defendant’s subsequent statements. It is true that the first sentence of the instruction is very broad, yet it must be read and considered in connection with the second sentence which refers to the time of the kilting and prior to the time that any admissions or declarations were made while defendant was in an intoxicated condition. Further, there was no evidence tending to show that defendant made any mis-statements of fact' due to drinking or to intoxication. The instruction correctly declares the law of this state as applicable to the facts of this particular case and cannot be construed as an erroneous comment on the evidence. State v. Bartley, 337 Mo. 229, 84 S.W.2d 637, 641 642(10) ; State v. Small, Mo.Sup., 344 S.W. 2d 49; State v. Bobbst, 269 Mo. 214, 190 S.W. 257, 261(9); State v. Smith, supra. In view of the entire record in this case,, we do not find Instruction No. 13 to be prej-udicially erroneous.

Error is assigned on the refusal of the court to give defendant’s offered Instructions “A” and “B”. The applicable-rules of law sought to be submitted in these instructions were fully covered by other instructions given by the court, but defendant says that Instruction No. 4, heretofore referred to, was erroneous. We have overruled this contention. The assignment with reference to the refusal of Instruction “B”' is too general and indefinite to comply with Supreme Court Rule 27.20. It merely says that Instruction “B” correctly sets forth the law and should have been given. In any event, the matters sought to be submitted by these instructions were properly and sufficiently covered by other instructions. The issue of self defense was covered by Instructions No. 5 and 8, and the issue of protecting one’s home was covered by Instruction No. 7. The matter of each juror voting his own convictions was fully covered by Instruction 17. In many respects the instructions given were similar to those refused. No error appears. State v. Wright, Mo.Sup., 336 S.W.2d 714, 718(3).

Error is assigned on the refusal of defendant’s Instruction No. “D”. This was a cautionary instruction with reference to any alleged statements and admissions made by defendant. It is contended that “the greater weight of the State’s evidence as to the defendant’s guilt was based upon statements and admissions made by the defendant within a short time after the alleged crime”; and that, since “the evidence in the case showed that the defendant was in some decree of intoxication and was in shock and emotionally upset [when the admissions and statements were made] * *, it was essential to the defense of the defendant that Instruction No. D should have been given by the Court.” We think the instruction was properly refused since it singled out particular evidence and advised the jury that the particular evidence should be received by them with great caution, and in so doing the instruction tended to overemphasize the extent of caution applicable to such evidence and invaded the province of the jury. Further, the instruction, if properly drawn, was unnecessary in view of the State’s Instruction 12 on the credibility of witnesses. State v. Clark, Mo.Sup., 277 S.W.2d 593, 601(10). Further, the instruction is not limited to the period of time immediately after the killing, but includes admissions and statements up to the time of the trial of the cause. The court did not abuse its discretion in refusing defendant’s Instruction “D”. State v. Bobbst, supra, 269 Mo. 214,190 S.W. 257, 261(10) (instruction properly refused) ; State v. Williamson, 343 Mo. 732, 123 S.W.2d 42, 45(7) and State v. Henderson, 186 Mo. 473, 85 S.W. 576, 583. And see comment in State v. Clump, 16 Mo. 385, 387-388 where the court said that the “doctrine or mere legal rule of receiving evidence of verbal confessions with great caution, was the enunciation of an abstraction, not calculated to assist the jury in finding their verdict.”

It is further contended that the court erred in failing to instruct the jury as to the extent of consideration to be given to the evidence concerning the bad reputation of the deceased, which would authorize and justify the defendant in acting more quickly and more forcibly than he might otherwise have done. There is no merit in this assignment, since the court properly instructed the jury as to the effect to be given to the evidence of deceased’s bad reputation. The issue was fully covered by State’s Instruction No. 10. State v. Parker, 358 Mo. 262, 214 S.W.2d 25, 27(4).

It is further contended that the court erred in permitting the prosecuting attorney to bring a bundle of clothing and shoes and other articles tied with a belt into the courtroom in the presence of the judge and the jury. It is contended that these articles tended to inflame and prejudice the jury against the defendant. From a careful reading of the record in this case it does not appear that any such display took place in full view of the jury, nor does it appear from the transcript that any such articles were presented in the courtroom. The assignment is overruled.

It is further contended that the court erred in failing to give an instruction as to the consideration to be given to prior convictions of the defendant, and admissions of arrest. Defendant says the jury should have been instructed to disregard prior convictions or admissions of arrest, except insofar as they would go to affect the credibility of the defendant as a witness. The record shows that defendant testified he did' not remember whether he had ever been convicted of a criminal offense, but later he-said he had been arrested but not convicted. The defendant did not request an instruction with reference to this issue, which was clearly a collateral matter on which the court was not required to instruct where an instruction was not requested. The court, therefore, did not err in failing to instruct on this collateral issue where no request was made by defendant.

Assignments 16 and 18 wholly fail to comply with Supreme Court Rule 27.20' in that they are mere general assignments and preserve nothing for review. Assignment 16 charges that the court erred in admitting illegal and incompetent testimony on1 behalf of the State and in excluding competent and legal testimony offered by defendant. Assignment 18 merely states that the verdict is contrary to the law and the evidence. Neither assignment is sufficient to comply with Supreme Court Rule 27.20. State v. Ivory, Mo.Sup., 327 S.W.2d 870, 8711 ■(3) ; State v. Pinkerman, Mo.Sup., 349 S.W. 2d 951, 952(1).

Assignment 17 is to the effect that “the court erred in accepting and receiving the verdict from the jury when the same had "been decided after a short time of deliberation by means other than a fair expression ■of opinion on the part of all the jurors.” The assignment is without merit because it is not supported by any evidence or factual .recital in the record and the statement does not prove itself. We have also examined that portion of the record required to be ■examined under Supreme Court Rule 28.02 .•and we find no error.

The judgment is affirmed.

All concur.


author: EAGER, Judge.

text:
    LOCAL ACCEPTANCE COMPANY, Appellant, v. David E. KINKADE and Bonnie Kinkade, Respondents, Ted LAIS, doing business as Melody Sewing Center, Third-Party Defendant.
    No. 49363.
    Supreme Court of Missouri, In Banc.
    Nov. 14, 1962.

      Douglas & Douglas, Neosho, for appellant.
    Johnson, Johnson & Landis, Neosho, for respondent.
   EAGER, Judge.

This case was transferred here by order of this court from the Springfield Court of Appeals. The opinion of that court appears at 353 S.W.2d 123. We shall state only such of the facts as are necessary in order to outline the issues and, where pertinent, to supplement the facts stated by the Court of Appeals.

The suit is one, purportedly, on an instalment note for a balance of $285, with interest and attorneys’ fees. We say “purportedly” because defendants deny that the instrument is a negotiable note. The verdict was for the defendants and judgment was entered accordingly. A third-party proceeding against Ted Lais was not tried, in view of the principal judgment. The Court of Appeals reversed this judgment, directed that judgment be entered for plaintiff, and ■ordered the third-party issue tried.

The instrument was most peculiar in form; it consists of a “negotiable promissory note” appearing in the upper right ■corner of the face of the paper, a computation of the price at the left, and a skeleton form of chattel mortgage below, along with a description of the property; beneath all ■this the defendants signed, with “Ted Lais” signing as a witness. On the back of the sheet appears almost a full page of “Conditions”; the “indorsement,” appearing below these conditions, and referred to as such in the opinion of the Court of Appeals, was as follows: “For Value received, the within contract, the property therein described, on the reverse side,’ and all monies to become due thereunder, are hereby sold :and assigned:

“WITH RECOURSE TO Local Accept Co '“Dealer Melody Sewing Center Ted Lais -Address Joplin Mo.”

The essential defense was that Ted Lais, operating as Melody Sewing Center, had sold to the defendants a sewing machine for which the instrument was given, upon his agreement that their payments could be made by sewing pre-cut garments which he would furnish each month; that for a period of five months Lais had furnished these, Mrs. Kinkade had done the sewing, and Lais had paid them according to the agreement; that thereafter Lais had defaulted, although they (Mrs. Kinkade, to be specific) had remained ready and willing at all times to perform; that Lais could not collect on the note because of the contemporaneous agreement which must be considered with the note, and that plaintiff, having actual notice thereof, was not a holder in due course, and stood in no better position than Lais. Defendants also insisted that the note was not negotiable, that it was not payable to bearer, that it had not been endorsed, and that plaintiff had not paid value for it.

On the vital question of notice, the only testimony came from Mr. Rapp, plaintiff’s manager, and from Ted Lais, the seller. The conclusion of the Court of Appeals as to the testimony of Ted Lais was: “Ted Lais’ testimony does not establish any facts which would give actual knowledge to plaintiff of any infirmity, defect or knowledge of any such facts that its action in taking the instrument amounted to bad faith.” We find from the record that Mr. Lais testified in substance as follows: that he had been a salesman for one Keith Wilkerson who operated the Melody Sewing Center; that he had heard Wilkerson talk with plaintiff’s local manager, Mr. Rapp, about selling sewing machines on a plan whereby the purchaser would sew pre-cut garments in order to earn the payments; that Wilkerson showed Rapp some of the garments and a form of the “sew” contract, which was similar to the one used in this case, and explained the proposed method of selling; that Rapp replied that it was a “good deal”; that thereafter Lais acquired the business and went to see Mr. Rapp; that he told Rapp that he proposed to handle his sales on the “sew plan,” in the same manner as Wilkerson had, and that he would need financing; that he wanted to know if Rapp would handle the paper as he had for Mr. Wilkerson; that Mr. Rapp knew (so stated without objection) that his proposal was that the customers would sew garments to earn the money to make the payments; that Mr. Rapp, after waiting to consult his supervisor, told him that “they would go ahead and handle it,” and that Rapp agreed to that proposition; that his conferences with Rapp occurred before he made any sales at all. Lais further testified: that from time to time Rapp asked him if he had outlets for the garments; that the note and chattel mortgage forms were furnished to him by Mr. Rapp; that he filled out one of those forms when he made the Kinkade sale, and that he executed the “sew” contract; that he made the sale on the representation of that agreement, and that the purpose was to enable the Kinkades to avoid cash payments; that he went “broke” and was unable to pay for more sewing of garments, having no suitable sales outlets. Lais’ evidence, though produced primarily in his own behalf as third-party defendant, was not in any way limited by objections or instructions. It is, therefore, in the case generally, and available to defendants. We are unable to take the same view of the evidence as the Court of Appeals took. It held, in substance, that the evidence did not make a submissible jury issue on the question of plaintiff’s actual knowledge of any infirmity, or of plaintiff’s good faith.

By Instruction No. 3 the jury was told, in substance: that if defendants executed both the “note and chattel mortgage” and the sew “agreement,” and performed the terms of the sew agreement so long as it was possible for them to do so and made payments on the note accordingly, but that Lais defaulted thereon, although defendants were ready to perform, — then plaintiff stood in the position of Lais and could not recover on the instrument because of Lais’ breach, provided (our italics) the jury further found that plaintiff “had knowledge of the plan * * * prior to the time” it received the note and chattel mortgage from Ted Lais. In Instruction No. 5, obviously offered by plaintiff, it was hypothesized that if Lais had acted in good faith and had later gone “broke,” plaintiff should recover unless it had “actual knowledge” of the sewing agreement at the time of its purchase of the note. We thus see that the jury, by its verdict, found the facts on the question of knowledge substantially as testified to by Lais.

It has often been held that a contemporaneous written contract, entered into between the original parties to a note, and connected with the note by direct reference or by necessary implication, may affect the payee’s right to recover against the maker, and that the two instruments should be considered together as the entire contract. Citizens’ Bank of Edina v. Kriegshauser, 211 Mo.App. 33, 244 S.W. 107; Williams v. Kessler, Mo.App., 295 S.W. 482; National Refining Co. v. Zuckerman, Mo.App., 183 S.W.2d 390; Simpson v. Van Laningham, 267 Mo. 286, 183 S.W. 324; Bank of Mountain View v. Winebrenner, Mo.App., 189 S.W.2d 429 at loc.cit. 439 (discussion in dissenting opinion); Leesemann v. Schulte, Mo.App., 24 S.W.2d 1083; People’s Bank of Ava v. Rankin, Mo.App., 30 S.W.2d 638. There is no controversy whatever here concerning the execution of the “sew” agreement or of the intent of the parties thereto. It provided that pre-cut garments be furnished to Mrs. Kinkade for twenty-four months (the same period as the note instal-ments) except for “months when * * * cash payments are made”; also, that she be paid for the sewed garments $15 per month, the precise monthly payment due on the note; also, that Mrs. Kinkade might terminate the agreement by notice and by payment for any retained materials, “and payment of balance due Finance Company.” There is no doubt that this agreement and the note were connected, at least by “necessary implication,” if not by “direct reference.” Lais certainly could not have recovered the balance on this note, if considered as the payee, free of his obligations under the “sew” contract. See the cases last cited. We consider it immaterial that only Mrs. Kinkade and Lais signed the sew contract. Her husband had signed the note and mortgage, he was present at and a party to all the proceedings connected with the sale, and the effect of the contemporaneous contract was to operate in his favor as well as his wife’s. This point will be mentioned again later.

Despite some variation in the language used, it is now generally held that a subsequent holder of a negotiable note is not a holder in due course if he has actual knowledge of a defect or infirmity in the prior title to the note or if he takes in bad faith. Local Finance Co. v. Charlton, Mo. App., 289 S.W.2d 157; Citizens’ Bank of Edina v. Kriegshauser, 211 Mo.App. 33, 244 S.W. 107; Bank of Hale v. Linneman, Mo.App., 235 S.W. 178. This rule has specifically been held to cover situations involving contemporaneous agreements. Some authorities have indicated, perhaps, a slightly less stringent rule by merely requiring, for instance, “knowledge of the agreement” (Simpson v. Van Laningham, 267 Mo. 286, 183 S.W. 324), or that the holder be a “transferee with notice” (National Refining Co. v. Zuckerman, Mo.App., 183 S.W.2d 390), or merely that he have “notice” (Williams v. Kessler, Mo.App., 295 S.W. 482; People’s Bank of Ava v. Rankin, Mo.App., 30 S.W.2d 638). Certain cases, principally older ones, have indicated the necessity of bad faith or “mala fides” on the part of the subsequent holder (Jennings v. Todd, 118 Mo. 296, 24 S.W. 148; Mayes v. Robinson, 93 Mo. 114, 5 S.W. 611; Hunt v. Dean, Mo. App., 72 S.W.2d 831) ; however, when we consider the facts and specific language of those cases (see discussion in Kriegshauser, supra), we do not feel that they justify a rule different from that just stated above. We note, also, that bad faith in such instances may be shown by one’s knowledge of the facts (Kriegshauser, supra). It is true, of course, as urged here by plaintiff, that mere negligence or suspicion are not sufficient to deprive a holder of his status as a holder in due course (Charlton, supra).

Under these authorities and the wording of § 401.052, RSMo 1949, V.A.M. S., we hold that there was substantial evidence to require the submission of plaintiff’s status as a holder in due course, as dependent upon its “knowledge” or “good faith.” This, in substance, was done here. Under that section of our statutes that status is negatived if one takes with “notice of any infirmity in the instrument or defect in the title,” or if he does not take in “good faith.” Defendants could have elected to submit their defense on either of these theories; they choose that of notice or “knowledge.” We hold that an issue was fairly made on whether plaintiff had “actual knowledge” of the infirmity existing because of the “sew” contract. This does nqt involve any question of fraud. The Court of Appeals improperly directed that judgment be entered for plaintiff. It was not necessary that Mr. Rapp, manager of plaintiff, know in advance of the execution of this specific note and of the contemporaneous execution of this particular “sew” contract. It was sufficient that he had been advised, prior to the selling by Lais of any machines, that the sales would be made exclusively upon this method, that he assented to the method, and that he took Lais’ paper with such knowledge. As indicating the sufficiency of knowledge of that general type, see again, Local Finance Company v. Charlton, Mo.App., 289 S.W.2d 157, loc. cit. 162(10); in other words, the knowledge may be that of a course of business. The Court of Appeals, in our opinion, misconceived the effect of Lais’ testimony on this issue, and we ordered the case transferred here primarily for that reason.

We are not concerned with any questions of the burden of proof, although the parties have rather casually mentioned that subject, pro and con. We have assumed here, merely for the purposes of this case, that the note in question was a negotiable instrument, and that it was endorsed to plaintiff, in spite of the highly peculiar forms used; we do not decide the correctness of the ruling that this was a “bearer” note within the meaning of § 401.009. If this were held not to be a negotiable note, then certainly plaintiff would be subject to the infirmities of his transferor, so the present assumptions can be of no prejudice to plaintiff. While we have not answered appellant’s points in the precise manner in which they were made, we consider that this opinion constitutes a full coverage of those points.

Plaintiff complains of Instruction No. 3 in certain respects. We have already stated its substance. These objections are: (1) that it was error to submit that “if the sewing payments were not made that the note would not have to be paid”; (2) that it was erroneous in directing a verdict for defendants upon a finding that Lais failed to pay for the sewing delivered on July 24, 1959; and (3) that therein the court erred in exonerating defendant David Kinkade, since he did not sign the “sew” agreement, did no work thereunder, and, therefore, should derive no advantage from its provisions.

As to (1): So far as this objection is concerned, the instruction constituted a direction that, if the two instruments together constituted the agreement between Lais and defendants, that if defendants fully performed the “sew” agreement so far as possible, but that Lais breached it by a failure to pay, then defendants had not been guilty of a breach by failing to pay further instalments; and that, if plaintiff, as the holder of the “note and chattel mortgage” "had knowledge of the plan employed by Ted Lais in selling said sewing machine and as set forth in the instrument called ‘Agreement’ prior to the time when Local Acceptance Company received the instrument * * then plaintiff stands in the same position as Lais and cannot recover. (Italics ours.) In view of the authorities already discussed, this complaint is without substance. As to (2) : the reference to a failure of Lais to pay for the sewing delivered on July 24, 1962, was merely a part of the total breach hypothesized and of the readiness of defendants to perform. The recitation complained of was not erroneous. As to (3) : this is merely a contention that Mr. Kinkade was not entitled to the advantages of the “sew” agreement because he did not sign it and did none of the sewing. We have previously indicated that this contention is not well founded. Mr. Kinkade had signed the note, he had thus furnished a substantial part of the consideration for Lais’ agreement, and he was present at and participated in all the negotiations. He was entitled, as a third-party beneficiary if not otherwise, to the benefits of the agreement. The note and “sew” agreement are to be considered, as already indicated, as one contract and in essence Mr. Kinkade was a party thereto. The cases which plaintiff cites are not in point.

Plaintiff does not complain here of the use of the word “knowledge” in the instruction, as contrasted with the term “actual knowledge” as used in some of the cases; other cases use the term “knowledge” or “notice.” The term “knowledge,” used without qualification, would ordinarily mean actual knowledge and if any question remained the meaning of the word was further amplified by Instruction No. 5, offered by plaintiff and given by the court. That instruction, setting up defendant’s theory, required “actual knowledge” on plaintiff’s part of the “sewing agreement” in order to defeat recovery; and, of course, all the instructions are to be read together. We find no reversible error in Instruction No. 3, nor any other error on the points assigned.

Since the verdict and judgment were for defendants, that automatically disposed of the third-party petition, so far as the merits were concerned. That petition should, however, be dismissed in order to fully clear the record. The judgment is affirmed and the cause is remanded for the sole purpose of permitting the court to dismiss the third-party petition.

It is so ordered.

All concur.

      . All statutory references are to this revision, in view of the date of the instrument, January 13, 1959.