author: EAGER, Judge.

text:
    Edna Martin WILSON, Appellant, v. M. E. MORRIS, Director of Revenue of Missouri, Respondent.
    No. 49766.
    Supreme Court of Missouri, Division No. 2.
    July 8, 1963.

      Walter D. McQuie, Jr., Montgomery City,, for appellant.

      Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Judge.

This appeal involves the revocation of the driver’s license of plaintiff-appellant. Following the revocation plaintiff filed a petition for review in the Circuit Court; to this, counsel for the Director-Respondent filed a motion to dismiss. That motion was sustained, the petition was dismissed and this appeal followed in due course.

The facts, all shown by documentary evidence, are substantially as follows: plaintiff, a woman now 82 years of age and living in Montgomery City, was stopped on Highway 40 in Montgomery County on March 4, 1962, by Trooper D. D. Wilmoth of the Highway Patrol, after he saw her car “weave” across the center line on two occasions; the officer talked with her briefly, and (through his commanding officer) reported these facts to the proper division of the Department of Revenue, stating further that he had received “several complaints” that plaintiff allowed her car to “weave” across the center line, that in his opinion she was not capable of driving on high speed highways, and that she should be cited in for an examination. On March 15, 1962, the Department of Revenue notified plaintiff by letter that it had received complaints “concerning her operation of motor vehicles” and that in compliance with § 302.291 (Cum.Supp.1951) she was thereby notified to appear within thirty days at a “driver examiner station” in her county to take a regular driver’s examination. It was further stated in the letter: that she was required to submit satisfactory evidence of her physical competence to drive by procuring and presenting a physician’s certificate to be completed on a form enclosed; also, that if prevented by some emergency from appearing within the stated time, she might contact an examiner with regard to an extension of time. The letter concluded with the statement that a failure to appear or to pass the driver’s test would “constitute an immediate revocation” of her driving privilege.

Plaintiff does not deny receiving the letter. She consulted counsel, two in fact, and correspondence ensued. In the first letter counsel asked the names of her “accusers” and the charges; in the subsequent correspondence counsel discussed the meaning of “incompetent” as used in § 302.010(10), and whether the Director, in fact, had “good cause” under § 302.291 to believe that plaintiff was not qualified to drive, with specific discussion as to whether or not the unsworn report could afford a reasonable basis for “good cause”; the suggestion was also made that if plaintiff desired she should.be afforded a hearing on that point, and counsel stated further: “I feel that Mrs. Wilson is entitled to something in the nature of a hearing, or at the very least, a formal determination by the Director of good cause to believe her unqualified to retain her license based upon some substantial and competent evidence.” An extension of time was also suggested; this was granted in a letter of April 2, 1962, in which the Respondent also stated: “We think that this person is physically unable to operate her motor vehicle on the highways of this State particularly when there is heavy traffic. The Trooper who made the report to us not only observed her driving but states that he has received several complaints on her driving. We believe this to be sufficient evidence for us to cite her to take the examination.”

Upon plaintiff’s failure to appear, either as originally instructed or within the extended period, her license was revoked and she was so notified by letter of June 27, 1962. Her petition for review was duly filed in the Circuit Court. We need not digest it, for plaintiff is confined here to the points made in her brief. Respondent, appearing by the Prosecuting Attorney (§ 302.311), filed his motion to dismiss alleging: that her petition failed to state a cause of action upon which relief could be granted; that the court had no jurisdiction of the subject matter or the parties; that plaintiff had failed to exhaust her remedies under Chap. 302, and that by her failure to appear and defend against the revocation proceedings, she waived her right of appeal. The Circuit Court stayed the revocation (§ 536.120) pending a determination by it. On September 10, 1962, the court sustained the motion to dismiss, after receiving in evidence a duly certified exhibit incorporating all the applicable documents. The court was of the opinion that § 302.311 provided for an adequate review, but that the issuance of the notice and the revocation of the license had been committed to the discretion of the Director, and that if he thus determined that there was “good cause” to require an examination, his determination would not be overturned on review.

Plaintiff’s counsel submits here three grounds of supposed error: (1) that a judicial review of the revocation is guaranteed under the due process clause of the Missouri Constitution; (2) that a judicial review is guaranteed under Art. 5, § 22, Mo. Constitution, V.A.M.S.; (3) that a judicial review is guaranteed by § 302.311. These contentions are based upon the assumption that plaintiff has had no “judicial review.”

We look first to our jurisdiction. Among other grounds plaintiff asserts that we have jurisdiction because a State Officer is a party. The term “state officer as a party,” as used in Art. 5, § 3, Mo. Constitution, should ordinarily mean that the state officer is an adversary or contesting party. Thus, by way of illustration of ones not parties, we note the case of In re St. Joseph Lead Company, Mo., 352 S.W.2d 656, 661, where the court said, loc. cit. 661: “In part, the appellant’s argument assumes that there is a contest and a conflict of interest between the State Tax Commission and the county. But in this proceeding the commission acted in its appellate quasi-judicial capacity (Const. Mo. Art. 10, Sec. 14) and the contest is between the St. Joseph Lead Company and St. Francois County.” On the other hand, where members of the Unemployment Compensation Commission sue for delinquent contributions, they are held to be within the jurisdictional provision. Trianon Hotel Company v. Keitel, 350 Mo. 1041, 169 S.W.2d 891. There they enforced a right of the state as contesting parties. At the outset here the Director was the administrative officer to whom the determination was committed. But by § 302.311 it is provided that upon appeal “the cause shall be heard de novo * * that appeals from the circuit court “may be taken as in civil cases,” and that the prosecuting attorney “shall appear in behalf of the director, and prosecute or defend, as the case may require.” (Italics ours.) With some misgivings we hold that the director is thus made a contesting party upon the review and thereafter. There is also some merit in the contention that a decision here involves a construction of the due process clause of our Constitution. We accept jurisdiction. The contentions under Art. 5, § 22, though briefed in a separate point, need not be considered, for they were not pleaded in the petition for review, nor does the point appear to have been raised otherwise until plaintiff’s brief was filed here. City of St. Louis v. Butler Company, 358 Mo. 1221, 219 S.W.2d 372; State v. Brookshire, Mo., 325 S.W.2d 497, 500; Ingle v. City of Fulton, Mo., 260 S.W.2d 666.

Section 302.291, under which the Director proceeded here, is as follows: “The director, having good cause to believe that an operator, or chauffeur is incompetent or unqualified to retain his license, after giving ten days’ notice to such person in writing by registered mail directed to his present known address, may require him to submit to the examination provided by section 302.173. Upon conclusion of the examination the director may allow the licensee to retain his license, may suspend or revoke the license of the licensee, or may issue to the examinee a license subject to restrictions as provided in section 302.301. The refusal or neglect of the operator or chauffeur to submit to such examination shall be ground for suspension or revocation of his license by the director, a magistrate or circuit court.”

Section 302.311, upon which plaintiff largely relies, provides: “In the event an application for a license is denied or withheld, or in the event that a license is suspended or revoked by the director, the applicant or licensee so aggrieved may appeal to the circuit court of the county of his residence in the manner provided by chapter 536, RSMo 1949, for the review of administrative decisions at any time within thirty days after notice that a license is denied or withheld or that a license is suspended or revoked. Upon such appeal the cause shall be heard de novo and the circuit court may order the director to grant such license, sustain the suspension or revocation by the director, set aside or modify the same, or revoke such license. Appeals from the judgment of the circuit court may be taken as in civil cases. The prosecuting attorney of the county where such appeal is taken, shall appear in behalf of the director, and prosecute or defend, as the case may require.”

The law governing this review or “appeal” does' not come from Chap. 536, RSMo for this clearly is not a “contested” case within the definition of § 536.010(3). And see, State ex rel. Leggett v. Jensen, Banc, Mo., 318 S.W.2d 353. Nor does plaintiff claim that the present petition was filed either under § 536.100 or § 536.-105, or that either Chap. 536 or Civil Rule 100 applies here substantively. The manner of taking the appeal or accomplishing the review is as prescribed in § 536.110 et seq., and no objection is made here to the mode of procedure employed. The question for decision is: What type of review or hearing on appeal was plaintiff entitled to? Plaintiff says that at some stage of the proceedings she was entitled to a hearing (meaning, as we take it, an evidentiary hearing on the merits of her ability to drive), either before the administrative agency or in the Circuit Court, and that otherwise she has been deprived of due process, citing Leggett,, supra. The basic difficulty with plaintiff’s, position is that she took no steps to procure or accept a hearing during the administrative phases of the proceeding but fully and finally defaulted, although summoned to appear for examination, and-also failed to present a physician’s report. Her examination and the certificate of a<. physician (of her own choice) would have-constituted a hearing in a limited sense;, and we shall not say that she might not have been entitled to introduce, or at least offer, at that hearing other evidence-in support of her competency and ability to drive. In such event her present insistence upon a “trial de novo” or evi-dentiary hearing in the Circuit Court would be of more substance. In fact, she-not only defaulted, when offered the opportunity to appear, but actually refused’ to obey an order which was at least lawful on its face. The primary purpose of' the proceedings before the examining officer was to have plaintiff examined in< accordance with § 302.173 by a designated-member of the Highway Patrol; other-matters, including the physician’s certificate, were supplementary. In no event could the Circuit Court on review conduct such an examination, and if the merits-were to be tried on review, there would', thus be a perversion of the statutory requirements, unless plaintiff then chose (somewhat irregularly) to submit herself' to the examination. Plaintiff having elected so to act, we hold that the only issue-remaining when the matter reached the Circuit Court was the existence of “good' cause” for ordering her to- appear and: take the examination.

The State takes the view that since plaintiff refused to appea-r, the revocation was automatic under § 302.291, and “not from the exercise of any discretionary authority * * We do not agree. The statute provides that the refusal or neglect to appear “shall he ground for suspension or revocation,” certainly leaving a measure of discretion in the Director. We hold that the Circuit Court here reviewed, and could only properly review the discretionary action of the Director in finding that there was “good cause” under § 302.291 for the order on plaintiff to appear for examination. The entire documentary record was received without objection in the Circuit Court. Such administrative proceedings, where no hearing as such is expressly required by statute, are necessarily informal. We hold that there was a sufficient showing of “good cause” to justify the order of the Director requiring this examination, based as it was upon an official report of the Highway Patrol, actual observation of defective driving, complaints from others, and plaintiff’s age. “Good cause” depends upon the circumstances of the individual case, and a finding of its existence lies largely in the discretion of the officer or court to which the decision is committed. Buttinger v. Ely & Walker Dry Goods Co., Mo.App., 42 S.W.2d 982. We find no abuse of discretion here, either by the Director or by the Circuit Court.

While the term “de novo” is defined as meaning “anew, afresh, a second time” (Black’s Law Dictionary, Fourth Ed.), its substantive application varies with the scope of the issues which have been preserved. We hold that the term, used rather loosely in § 302.311, did not confer here the right to such'a hearing in the Circuit Court as plaintiff demands, when she had refused to obey the order requiring her to appear before the administrative officer.

The cited case of Levin v. Carpenter, Mo., 332 S.W.2d 862, 79 A.L.R.2d 859, holds that although the issuance of a driver’s license is merely a personal privilege it cannot be revoked arbitrarily. We agree, but the plaintiff’s license was not so revoked here. To the same effect is City of St. Louis v. Mosier, Mo.App., 223 S.W.2d 117. In the latter case an ordinance provided for the revocation of a driver’s license by the appropriate court upon three convictions of careless driving or speeding within a period of twelve months. Upon checking the defendant’s records, the license examiner discovered three such convictions and notified the judge who, without any new proceedings, order or judgment, wrote the defendant a letter instructing him to turn in his license. Upon his refusal, an information was filed charging him with the breach of a separate provision of the ordinance, i. e., the refusal or failure to bring in the license. The court held on appeal that the ordinance permitted revocation only by order of the court and that such an order should have been made after a hearing sufficient to show the prior convictions, their dates, and the identity of the licensee in each instance; that otherwise the revocation was arbitrary. The ruling there, based as it was upon the specific ordinance and wholly different facts, has no real application here. That ordinance was held to require a judicial determination, upon evidence, in the first instance.

In Pinzino v. Supervisor of Liquor Control, Mo., 334 S.W.2d 20, the renewal of a beer license was refused without a hearing, upon the Supervisor’s records of pri- or operation and offenses. The statute did not expressly require a hearing, although it did so require upon a revocation. It was held that the matter rested in the discretion of the Director, and that upon review the court needed only determine whether the decision was “authorized by law” (§ 311.700; Art. 5, § 22, Mo. Constitution), or “was arbitrary or capricious, or unreasonable.” There, as here, the record without evidence was certified to the Circuit Court, and the court held that it need only be shown that the information upon which the decision was based was such that the officer could reasonably act thereon. It was contended there that the failure to hold a hearing, either before the Supervisor or on review, was a denial of due process. The court denied that contention, stating that all phases of the liquor business were generally removed from the usual rights, privileges and immunities of citizens, except as expressly authorized by law.

While in our case, the revocation of the license involves a wholly different situation, we hold that there was no denial of due process for the very simple reason that plaintiff did not avail herself of the opportunity to have an administrative hearing, and thereby preserved no right to a hearing on the merits upon appeal. Due process requires notice and an opportunity to be heard. State ex rel. Perrine v. Keirnan, Mo., 237 S.W.2d 156, and cases cited. It does not guarantee a hearing where the opportunity has been refused by the one now complaining.

Finally, plaintiff says that this is no case for the application of the rule of failure to exhaust administrative remedies, because § 302.291 provides that the refusal or neglect to submit to the examination shall be ground for revocation “by the director, a magistrate or circuit court.” Further, that where concurrent jurisdiction is given to the courts, no penal action should be taken because of a failure to pursue the administrative remedy. Counsel cites the case of Antoine et al. v. Fletcher, Mo.App., 307 S.W.2d 898, which is wholly inapplicable on its facts. There two wholly different methods were provided for the removal of a school district official; one was by a two-thirds vote of the board “for cause”; the other by action of the Circuit Court on petition, “for misconduct and disqualification.” It is obvious that either of said modes might have been employed and the court so held. In our case we are cited to no provision of the statutes setting up a court procedure for revocation on these facts. While we are frank to say that we do not fully understand the meaning or purpose of the words “a magistrate or circuit court,” thus added to § ,302.291, we are convinced that they do not constitute or set up an alternative mode of procedure which would permit plaintiff to completely ignore the order to appear before the examining officer.

The judgment is affirmed.

All of the Judges concur.

      . Unless otherwise stated all statutory references are to RSMo 1959 and V.A.M.S.


source: Caselaw Access Project

author: DALTON, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James (Buddy) WILLIAMS, Appellant.
    No. 49888.
    Supreme Court of Missouri, En Banc.
    July 8, 1963.

      Ward & Reeves, by George K. Reeves, Caruthersville, Dempster & Edwards, by Robert A. Dempster, Sikeston, for appellant.
    Thomas F. Eagleton, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
   DALTON, Judge.

Defendant was charged and convicted of murder in the first degree and the jury fixed his punishment at death. Motion for a new trial was filed and overruled and an appeal taken to this court.

The information filed in the Circuit Court of Pemiscot County on February 5, 1962, charged defendant with the murder of one Brenda Joyce Raines on December 22, 1961, by using a dangerous and deadly weapon, to wit, a shotgun loaded with gunpowder and leaden balls, to shoot and strike her and also by using it as a heavy blunt instrument to strike and beat her to death.

Apparently the defendant was without funds to employ counsel since the court appointed George K. Reeves of the Pem-iscot County Bar to defend him.

The cause was thereafter removed on change of venue to the Circuit Court of Scott County, where Robert A. Dempster of the Scott County Bar was appointed by the court to assist in defendant’s defense. When defendant was arraigned in the Circuit Court of Scott County, the record shows that, “the prisoner stands mute and says nothing.” Thereafter, in view of defendant’s refusal to answer with reference to a plea, the court ordered a plea of not guilty to be entered.

Prior to the removal of the cause from the Circuit Court of Pemiscot County, on the application of Attorney Reeves, the court had entered an order for the mental examination of defendant. Defendant was ordered transported to State Hospital No. 1 at Fulton, Missouri, for such examination, and it was further ordered that copies of the report of such mental examination be furnished to the Prosecuting Attorney of Pemiscot County and to counsel appointed to represent defendant. Defendant remained at the State Hospital No. 1 from March 8 to March 30, 1962, for observation and examination by Dr. E. C. Kepler, a psychiatrist employed at State Hospital No. 1 at Fulton. The defendant was “absolutely uncooperative” while in the hospital. The report showed that, “In view of this patient’s complete and persistent uncooperative attitude it is impossible to have an adequate idea of his mental processes.” Dr. Kepler, however, testified that: “It was our opinion that he was taking this attitude of muteness, mutism, evasiveness, and alleged amnesia as a defense mechanism, because that is the only defense mechanism that a person of his mental caliber is probably capable of using.” The witness further said: “It is my opinion he was not insane when we examined him or when I examined him at my office, and if he was not insane then, he certainly could not have been a.few months previous because he shows no signs of mental illness.”

Prior to the trial of the cause the court was fully advised by defendant’s counsel that, on three different occasions while defendant was in the Pemiscot County Jail, he refused to discuss his case in any manner with appointed counsel and, after his removal to the Scott County Jail, Mr. Reeves and Mr. Dempster made four separate attempts to talk to defendant and he refused to talk to either of them, refused to answer any questions whatsoever. They made diligent efforts to advise him that it was in his best interest to cooperate with his court-appointed attorneys, but he refused to do so. Counsel also asked one Reverend J. M. Blow of the Baptist Church to see and advise the prisoner but the prisoner refused to seek spiritual guidance from either Reverend Blow or any of the members of his church. In this connection Dr. Kepler found that: "There has been nothing in the behavior of the patient in the hospital nor at the staff meeting to indicate any bizarre mannerisms and although the patient is very definitely socially maladjusted, there is no reason to believe that he is unable to cooperate with counsel in his defense.”

Thereafter, the cause came on for trial and a jury of qualified citizens of Scott County was duly selected, after some twenty-five out of some sixty-one veniremen had disqualified on the ground that they were opposed to the imposition of the death penalty in any case.

The State’s evidence tended to show that Brenda Joyce Raines was a teenage girl weighing 110 pounds, residing with her family in Holland, Pemiscot County. She was a senior in the local high school and was keeping company with one Frank Craig, a resident of Blythesville, Arkansas. Craig drove a 1961 maroon-colored Pontiac automobile that carried Arkansas license plates. On Friday night, December 22, 1961, one Archer had seen Craig’s automobile between 11 and 11:10 p. m. parked on the Denton gravel road, one quarter of a mile north of the blacktop road leading west out of Holland, Missouri. The car,, with its lights turned on, was parked headed north on the right-hand side of the road about 100 yards south of a particular tree. This tree was the only one on the road between the blacktop and witness Archer’s home. A boy and a girl were observed in the car and Archer had seen Craig and Brenda together earlier in the evening. Archer resided one-half mile farther north on the Denton Road. As he approached Craig’s car from the rear, Archer met a colored man about 100 yards south of the parked car, walking south on the left side of the road. Archer’s car lights were on and he observed this colored man pull his cap off and bring it down over his face, like he was hiding his face or shading it. The cap was an orange-looking suede cap. The man wore a long light-colored coat and “maybe a tan with tan-looking pants.” Later, after defendant's arrest on Saturday night, December 23, 1961, when the witness •entered the police car in which defendant was riding, he observed defendant wearing .a similar cap; however, the defendant •promptly removed the cap and crammed it in between himself and the car door. The •colored man that the witness observed on the road near the mentioned automobile on Friday night, December 22, 1961, was of the same size and build, and had the same ■complexion as defendant; however, the witness could not “positively identify” the man as the defendant. On Sunday evening, December 24, 1961, at the exact spot where witness and his brother had seen the Craig car on Friday night, the witness observed .a pool of blood beside the road, and about 25 yards further north there was a smaller pool of blood, both on the east side of the .road.

On Saturday morning, December 23, 1961, about 8 to 8:30 a. m. one Shady 'George observed Craig’s 1961 maroon-■colored Pontiac automobile, with Arkansas license plates, parked on a road about a mile and a half east of the Denton gravel road. The car was on the right-hand side of this road, facing east. When the witness returned about 11:30 a. m., driving west and facing this car, he saw a hole in the windshield and, upon examination, saw ■Craig’s body in the car. Craig had been shot in the face and head. There was an old vacant house about 150 to 200 yards west of this car. The house was about fifty feet south of the road. Witness did not disturb the automobile or any part of it, but reported the matter to the sheriff’s •office in Caruthersville.

There is much conflict in the State’s evidence as to whether the location of the car and the vacant house were east or west •of the Denton Road, and whether the vacant house was north or south of the road, but these conflicts are immaterial to the issues here.

When Deputy Sheriff Faris arrived at the scene and inspected the car, he found an oval-shaped hole in the windshield and a pool of blood on the ground on the right-hand side of the car. Craig’s body was lying in the front seat of the car; the car doors were all closed and the windows rolled up, except that the left front window on the driver’s side was one-half or three-quarters rolled down. When Faris opened the left front door of the car he observed that, "All upon the headliner there was [sic] splatters of blood and brains.” On the right side of the car was a pair of boy’s low-cut moccasins and on the left side a pair of girl’s low-cut moccasins. He found some spent “BB” shot in the car. A boy’s pocketbook and a girl’s pocketbook were lying on the dash of the car, along with other things and wadding from a shotgun shell. “The front recess was full of blood and also the back righthand recess was full of blood.” In the girl’s billfold was the name, Brenda Joyce Raines, who had been missing from home since the night before. Along the road halfway between the parked car and the abandoned house, the witness observed that the ground was torn up, tracked up and the roadside ditch trampled. From the road, Faris went to the vacant house and observed that there was hair, blood and mud on the screen of a window of the house. Also on the front porch there was blood and mud and an indication that an object had been dragged across the porch. A door facing the road was open and just inside was the naked body of Brenda Joyce Raines. She was lying on her back with her head to the north and her feet toward a closed door. Her clothes had been torn off and were lying on the floor. Her left arm was folded up on her breast and neck, and her left wrist was broken and distorted and her face badly mutilated. There were blood splatters to the right of the body and upon some abandoned lumber and up on the side of the wall of the room. Faris followed the tracks from the porch back to the place where the ground was trampled and tom up along the road. There were two sets of tracks, one deep-cut set leading from the area to the house and then a set of lighter tracks going back to where the ground was torn up. Between the house and the road there was a place where something had been laid and there was blood and hair there. An impression on the ground appeared in the shape of a body. At this place the witness also found a “spent” shotgun shell, one-half of the stock of a shotgun and some car keys.

Faris also examined the area south of the mentioned tree on the Denton gravel road. According to him the first pool of blood was observed about 130 feet south of the ■tree and 90 feet further south was a second pool of blood, both on the east side of the road. Another empty 12-gauge shotgun shell was found near the first 'pool of blood south of the tree. At the same location he observed that automobile tracks had angled off into a small road ditch adjacent to the bean field east of the road.

Defendant was arrested at his home near Holland on Saturday night, December 23, 1961, at about 11 o’clock. The sheriff found defendant in bed and also found some clothes, including a long coat and sweater, boiling in a five-gallon lard can on the stove. He also found a pair of half-knee-length leather boots. He took defendant and these boots with him and the boots were subsequently turned over to Deputy Sheriff Faris.

On Sunday morning, December 24, 1961, Faris saw defendant in one of the cells at the county jail in Caruthersville and showed him the boots taken by the sheriff and “asked him [defendant] if those were his boots.” “He told me that those were his boots.” There were no promises, threats or mistreatment of defendant before the boots were exhibited and the question asked and the answer given. Faris then took the boots and compared them with the tracks seen in the area of the vacant house and the car containing Craig’s body. The heel of the boots had a peculiar design and Faris compared the heel with the heel tracks that were in the road, in the ditch and in the field near the vacant house. The • tracks were exactly the same width and length as the boots, and the boots fitted the tracks perfectly. The heel prints showed exactly the same heel design as the boots. About a half a quarter north of the east-west gravel road on which the car was found, Faris found such tracks again going out into the field around what is referred to as the Archer place. He also tested these tracks with the boots from time to time, and the tracks were of the same design. He followed the tracks through a field across a ditch that had a bridge on it and then south to where the tracks turned east, and he followed these tracks on east a half a mile into defendant’s yard. On the same trip he compared the boots with tracks made on the Denton road south of the mentioned tree. He noted that the tracks left the road and went out and around the tree and approximately out twenty feet into the bean field before they headed back into the road. Witness also noted that the tracks again left the road and made a half circle-in the field and came up to the road approximately thirty feet south of the pool of blood that was furthest south of the tree. This was the location where Archer had observed the Craig car parked the night before. Faris also observed automobile tire tracks by the south pool of blood on the east side of the Denton Road and then down the road to the north to where the tracks-angled off into the road ditch near the north pool of blood. At one place the car had apparently been backed up a short distance. All of the area inspected by Faris was located in Pemiscot County.

On Saturday evening, December 23, 1961, in the Pemiscot County Memorial Hospital at Hayti, Missouri, P. J. Aquino, M.D., of Caruthersville, Missouri, examined the body of Brenda Joyce Raines. He observed that her head and face were badly mutilated and showed evidence of traumatic blows and injuries primarily to the head, although the body was “covered pretty well in blood from head to foot.” There was evidence of a lick in the back of the left ear as well as evidence of a lick back of the right ear and one in front of the left ear. “On taking hold of her chin and face, all of the bones were evidently broken in many pieces of the entire face and chin.” Apparently these injuries could have been made by severe blows with a blunt instrument and in his opinion they were so made. He also observed that the deceased had a gunshot wound in the front and outside part of her right arm but he did not consider that injury fatal. With a reasonable degree of medical certainty he was able to say that, in his opinion the cause of deceased’s death was either one of the three wounds on the head which he had previously described. Any one of the three could have been lethal or death-causing. He also made an examination of her “female genital tract and found male sperm cells present.” The witness subsequently observed defendant in the Pemiscot 'County Jail on several occasions within a few days after his arrest. He noted that defendant sat perfectly calm, and that he appeared to be in a melancholy condition. In talking to and viewing the defendant, he observed that defendant’s actions were perfectly normal.

The evening the crime was discovered, December 23, 1961, Sgt. Hickman found the lower part of a gun butt between the parked car and the vacant house. As stated, a half of a gun stock was found the next day by Deputy Sheriff Faris in the same area. A large number of officers and others made a wide search, both Sunday and Monday, for the barrel part of the gun, but it was not found until late Monday evening when defendant personally pointed out the location, and the breach, barrel and forearm of the shotgun were recovered. The gun barrel had been bent and was muddy and there was some hair in the trigger. The top, where the hammer was located, was packed with flesh, hair and mud.

After defendant’s arrest he was taken to Cape Girardeau for some purpose, but it is impossible for us to determine from the record when defendant was taken, because there is so much conflicting testimony with reference to the matter, including testimony by witnesses who admittedly had no firsthand knowledge of the facts, but, nevertheless, defendant’s counsel was permitted to lead them to admit alleged facts of which they repeatedly said they had no personal knowledge. From the record, the court and jury could have found that four officers took defendant from Caruthersville to the police station at Cape Girardeau, and that they left Caruthersville at midnight Saturday night, December 23, and returned on Sunday, December 24. The evidence is conflicting as to whether they returned at 7 a. m. Sunday or at midnight Sunday. There was other evidence that defendant was not questioned until midnight Sunday night. There was evidence that defendant was not questioned Sunday, December 24, and that the officers took him to Cape Girardeau, leaving Car-uthersville at midnight Sunday night and returning at 7 a. m. Monday.

The State, however, takes the position that at 12:01 a. m. Monday, December 25, defendant was taken by airplane to Cape Girardeau. He was returned to Caruthers-ville at 7 a. m. the same morning (Monday, December 25, 1961). There is nothing in the record to show what occurred during this seven-hour period. There is no evidence upon which any inference can be drawn except that the defendant did not appear to be tired at 9 a. m. Monday morning. There was no affirmative evidence as-to how much defendant slept or could have slept Sunday night and no evidence that he had breakfast Monday morning; however, the evidence shows that breakfast was served in the jail usually around 7:30 to 8 a. m. There was testimony that, at the time questioning was commenced defendant did not appear to be worn out, tired or sleepy.

State Highway Patrolman Mobley started the questioning of defendant at 9 a. m. Monday. All questioning took place in the presence of Richard Pankey, Deputy Sheriff of Pemiscot County, who first saw defendant that day. He talked with defendant intermittently during that day and defendant was left alone part of the time. Defendant was permitted to go to the rest room once or twice, had coffee several times and was provided with some hamburgers, and he ate hamburgers and drank Coca-Cola, stood up or sat down at his own pleasure, and smoked Camel cigarettes. There is no evidence in the record to the contrary. There was no violence of any kind towards the defendant and, more or less, one person at a time talked to defendant. With the exceptions noted below, the questioning was conducted throughout in the identification room of the sheriff’s office in Caruthersville. This room and the sheriff’s radio room are separated by a hallway. There is a glass partition between which permits full view into the room.

The defendant was questioned for about an hour and a half by Patrolman Mobley in Pankey’s presence. No one else was in the room. Apparently no information was obtained, since defendant said he could not remember what he had done Saturday night. When asked if he had done certain things, he didn’t deny them but said he couldn’t remember.

When Mobley left at 10:30 a. m. Pankey continued the questioning alone. As to the procedure employed, Pankey stated that the manner in which the questioning was conducted was mainly discussing with defendant the things that the officers had found, the evidence concerning the footprints and so forth and so on.

Shortly after noon on that day, December 25, defendant made admissions concerning the shotgun, and claimed that a boy had stolen it for him. The boy was sent for and the questioning was discontinued while he was being brought from Holland to Car-uthersville. When confronted with the boy, who denied the charge, the defendant admitted, at 1 p. m., that he and not the boy had procured the shotgun. This led to further questions about the gun and, after further intermittent questioning (“Off and on”) through the afternoon, led up to a full oral disclosure at 7 p. m. When defendant told his story as to what the facts were, the full story was not told at once. “It was more or less a one thing at a time process * * * by no means was it just one continuous recitation of the facts. It was a thing drawn out over the biggest part of the afternoon of the day.” During the afternoon Highway Patrolman Lancaster had joined Pankey in the questioning. After full disclosure at 7 p. m. of the alleged facts and a statement given as to the location of the gun barrel, Pankey and Lancaster asked two other officers to come in and listen because they could not understand, from the description given by defendant, where the barrel of the shotgun had been hidden. Defendant offered to point out the place and at 8:30 p. m. he was taken to the scene to assist in locating the gun. After the gun barrel was located defendant was returned to the sheriff’s office at 10:30 or 11 p. m.

After the defendant had rested an hour or so, the sheriff suggested that Pankey obtain a written statement from the defendant.

About midnight on Monday, December 25, 1961, Pankey first mentioned the matter of a written statement to defendant. Pankey had not previously discussed any constitutional rights with defendant and he didn’t think that Mobley had either. They had questioned the defendant about the gun and the footprints and other matters, but so far as the record shows the defendant’s constitutional rights were not discussed with him at any time prior to the time he orally told his full story to Pankey and Lancaster on Monday evening, December 25, 1961, before 7 p. m.

When the matter of a written statement was presented, Pankey told defendant he could have an attorney if he wanted one and his constitutional rights were fully discussed with him as shown by the written confession. He said he didn’t want a lawyer. He was also told that he didn’t have to make a statement unless he wanted to. So far as Pankey knew defendant had not been questioned by anyone unless he (Pankey) was present. There were no threats or promises, mistreatment or violence of any kind. Pankey just told defendant he would like to have a written statement and defendant said he would give it. After the statement was given the defendant was permitted to make any changes, additions, deletions or corrections he desired and he made some corrections and signed it. The writing, correcting and signing of the statement was not completed until 3 a. m., Tuesday, December 26, 1961.

Appellant’s brief states that: “There is no contention in the record of this case that the appellant was given any promise of [sic] hope of leniency or reward to make said confessions and it is not contended that the prosecuting authorities made any threats or did any physical violence to the appellant. There is absolutely nothing in the record to show or to indicate that any promises were made to the appellant or that he was threatened, or that he was subjected] to any physical violence * *

Briefly, defendant’s oral statement to Pankey substantially conforms to the written statement. Defendant stated that, on Friday, December 22, 1961, he went to the house of “Kid” Wheaton, who lived next door to defendant’s house on a gravel road northwest of Holland; and that he broke the window glass out of a window, raised the window, went inside and got a shotgun and three shells. He took them to his house and hid them under his front porch. After it got dark that day he moved the shotgun and three shells and hid them in a bean field near the gravel road that runs west of his house. Sometime after 9 o’clock that night, while walking south on the gravel road west of his house, he decided to go out and take the gun from the bean field. At that time he didn’t see any cars, but, after he got to the place where the gun and shells were hidden, he looked back and saw that a car had stopped on the road just south of the tree. He could see the car, but the car lights were not on. He then walked down “the turn row” to where the car was parked and walked out in the field and started around the car. At that time the man in the car rolled down the glass on the driver’s side and cursed defendant and defendant shot at the man through the window on the driver’s side of the car. (Other evidence, as noted, tends to show the car was facing north, with the driver on the west side and the bean field and tree on the east side of the road and that Craig was shot from the rear and through the open window on the west side of the car.) After the shot was fired, defendant said he then ran around in front of the car, reloaded his gun and shot through the windshield towards the driver. Only two shots were fired. He then went to the driver’s side of the car and told the girl to drive the car to the next comer north and turn left and drive on to the old empty house and past the house and then stop. At first she backed up a ways and then drove the car to the place he had told her, which place was about 200 yards west of the old vacant house; that he then took her across the ditch toward the old house and when about half way he hit her with the gun two or three times, once on the side of the head and then twice more. He then carried her about half way to the house and put her down and laid the gun down and again carried her to the front window of the house and tried to put her through the window, but there was a screen across it, and he laid her on the porch and then dragged her across the porch into the house. In the house he removed her clothing and had sexual intercourse with her. After that he went and picked up his shotgun and walked back along the edge of the bean field and on to his home, and reached his home before day. He thought he had left the old' vacant house about midnight. Defendant’s oral statement was completed about 7 p. m. on Monday, December 25, 1961.

After the trip to recover the gun barrel and after the return to the jail and after defendant had rested, the statement was reduced to writing.

Defendant did not testify at the trial nor offer any evidence except that one of his attorneys testified concerning an attempt to get defendant to talk to them. The truth of the facts stated in the oral and written confessions, therefore, was not questioned by defendant’s evidence and its weight and value was for the jury.

While appellant’s brief contains thirteen assignments of error under points and authorities, the appellant admits that these assignments, “generally speaking,” fall into three broad categories, the first of which appellant says is based upon the continual and repetitious manner in which the State, through its prosecuting attorney and assistant prosecuting attorney, injected into the case the facts with reference to the two other separate and distinct crimes, to wit, the murder of Frank Craig and the rape of Brenda. As to this category appellant says that the well-established general rule is that the proof of the commission of a separate and distinct crime is not admissible unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which it is on trial; and that the continued reference made by the State to these separate and distinct crimes and the testimony given by the various witnesses “was wholly unnecessary to prove the State’s case,” and was highly prejudicial to defendant.

In support of the contention that the court erred in admitting evidence of the other crimes, the appellant cites and relies upon the following cases: State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307; State v. Medley, 360 Mo. 1032, 232 S.W.2d 519, 524-525 [6-9] ; State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-923; State v. Griffin, Mo.Sup., 336 S.W.2d 364, 367. These cases only review some general rules of law which are not in question. The cases are not at all similar on their facts. In State v. Reese, supra, 274 S.W.2d 304, 307, the court said:

“ ‘The well established general rule is that proof of the commission of separate and distinct crimes is not admissible, unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial. * * * Evidence of other crimes, when not properly related to the cause on trial, violates defendant’s right to be tried for the offense for which he is indicted.’ State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-923. Exceptions to this general rule of exclusion are as well established as the rule itself. On this point this court has twice cited approvingly, State v. Buxton, 324 Mo. 78, 22 S.W.2d 635, 636, and State v. Spinks, 344 Mo. 105, 125 S.W.2d 60, 64, [and] the following from People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 294, 62 L.R.A. 193: ‘Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.’ ”

The points relied upon by appellant in the first group of assignments of error were properly raised at the trial by objection to the mentioning of these other crimes in the State’s opening statement to the jury, by objections to testimony tending to show the murder of Craig and the rape of Brenda, and by objections to the State’s opening and closing arguments to the jury with reference to this evidence of other crimes. Appellant’s theory is that the proof of any facts tending to show the murder of Craig and the rape of Brenda was wholly unnecessary to proof of the charge that appellant murdered Brenda; and that the testimony tending to show these other crimes was not a part of the res gestae attending her death, and hence were inadmissible. Appellant particularly objected to the testimony concerning the automobile; the condition of its interior; the presence of Craig’s body therein; and the evidence that Brenda was raped. Appellant says that Brenda was not murdered nor harmed in the automobile.

Objection was also made to a part of the testimony of Dr. Aquino on the ground that the evidence “conclusively” showed that Brenda was dead before she was raped. Apparently the appellant would limit the State’s evidence to evidence showing- the murder of Brenda at the place where two pieces of the gun stock were found and where the ground was trampled, although the defendant admitted that the second shot was fired through the windshield of the car while it was on the Denton Road and the evidence showed that Brenda was there and was shot in the right arm.

We have carefully considered the first ten assignments in appellant’s brief which, as stated, relate to the admission of evidence concerning the death of Craig and the rape of Brenda. The same issues are presented in the motion for a new trial and in the argument in the brief. If the mentioned evidence was properly admissible, as we think it was, there was of course no error in permitting the State to review it before the jury, as being evidence which the State expected to prove, or in reviewing it in argument before the jury after the evidence was in the record. We think the evidence shows a single continuous transaction for a single purpose. The facts concerning the murder of Craig and the rape of Brenda were so closely inter-related to the proof of the murder of Brenda that they could not be separated from the other facts. The jury could find that the single purpose was to rape Brenda. This motive brings all other facts into a single unified transaction. The evidence of these other crimes was admissible as a part of the res gestae, as acts and events surrounding the murder and so closely related to the murder, as to be a part of the same transaction. State v. Gentry, Mo. Sup., 212 S.W.2d 63 [2, 3]; State v. White, Mo.Sup., 301 S.W.2d 827, 828 [4, 5]; State v. Childers, Mo.Sup., 313 S.W.2d 728, 733 [10]; State v. Swinburne, Mo.Sup., 324 S. W.2d 746, 753 [9].

The jury could believe and find that the gun and shells were obtained and hidden in the bean field adjacent to the road for the purpose for which they were used, to wit, to kill Brenda’s male companion and to so prevent interference; that the second shot was directed through the windshield to prevent Brenda’s escape with the car; that after the second shot was fired through the windshield the car went into the roadside ditch and defendant took control; that after the car reached the vicinity of the vacant house Brenda was removed from the car and taken to the vacant house for the sole purpose of raping her; that some difficulty was encountered on the way; and that she was beaten with the gun and carried into the vacant house where she was again beaten either to subdue her so that defendant could accomplish his purpose or to prevent her testifying against him and so he could escape detection and punishment. There were splashes of blood to the right of the body on the floor, also on the stored lumber and on the wall of the room. This evidence is not accounted for on any other theory other than to make sure Brenda was dead before or after the rape.

Further, the evidence as to the other crime which was directly connected with the crime charged was relevant and material to proof of murder in the first degree since premeditation, deliberation and malice could be inferred from the circumstances attending Brenda’s death. State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245, 249 [3, 4]; State v. Nolan, Mo.Sup., 316 S.W.2d 630, 633 [2, 3]; State v. Small, Mo.Sup., 344 S.W.2d 49, 53 [2] ; State v. Cade, 326 Mo. 1132, 34 S.W.2d 82, 84; State v. Goodwin, Mo.Sup., 352 S.W.2d 614, 620 [5], certiorari denied, 371 U.S. 915, 83 S.Ct. 262, 9 L.Ed.2d 174.

Appellant also assigns error on the court’s action in permitting the assistant prosecuting attorney, in his opening statement, to tell the jury that, when arrested, the defendant was “boiling blood” out of his clothes. Appellant says that the assistant prosecuting attorney promised he would tie that fact up later, but he did not do so. Appellant overlooks the fact that the evidence shows Brenda’s body was covered with blood from head to foot; that the defendant’s admission shows that he had carried Brenda to the house from a point halfway between the car and the vacant house; that he had tried to put her in the house through a screened window; and that he dragged her into the house and raped her. Appellant also overlooks that the evidence shows the colored man seen on the road near the car wore a long coat; and that a long coat and a sweater were being boiled in a five-gallon lard can on the stove when defendant was arrested. There was also evidence that the tracks from the trampled place to the vacant house were much deeper than the same set of tracks returning to the road. The jury could, of course, assume there was some reason for the defendant boiling the coat at 11 p. m. Saturday night, December 23, and could further find that Brenda could not have been carried by defendant in her injured condition without the defendant getting blood on his clothing.

Appellant’s next assignment is based on the theory that both the oral confession and the written confession were extracted from defendant by mental coercion on the night of December 25 and the early morning hours of December 26; that the State failed to prove that the confessions were voluntary; and therefore the court erred in allowing these confessions to be introduced into evidence.

Appellant’s counsel in their brief refer to appellant as an uneducated Negro, approximately thirty years old, and say that “The actual facts are that the appellant has the low intelligence of the usual cottonfield working Negro in Pemiscot County, Missouri.” We find nothing in the record to support these statements as to age, education and intelligence unless the testimony of Dr. Aquino supports an inference on the last point. However, the defendant being in custody, the burden of proving the volun-tariness of the confessions rested upon the State. State v. Bradford, Mo.Sup., 262 S. W.2d 584, 586 [1-5]; State v. Statler, Mo. Sup., 331 S.W.2d 526, 530 [7-9]. Whether the confession was voluntary or involuntary depended to a large extent upon the person from whom such confessions were obtained. His age, education, experience and intelligence were necessarily involved when determining whether the confessions were voluntary or coerced. State v. Barnett, Mo.Sup., 338 S.W.2d 853, 856 [3], A confession exhorted by mental punishment is as incompetent as one obtained by physical punishment. State v. Bradford, supra, 262 S.W.2d 584, 586; State v. Barnett, supra; State v. Ellis, 354 Mo. 998, 193 S.W.2d 31, 34 [4], certiorari denied, 328 U.S. 873, 66 S.Ct. 1374, 90 L.Ed. 1642.

The objection to the State’s evidence concerning the oral admissions of defendant was, as follows: “Yes, we are going to object to this witness testifying and narrating what was said for the reason, Your Hon- or, that this witness [sic] had not been given an opportunity to sleep the night before and that he was under duress by virtue of the fact that he hadn’t been given an opportunity to sleep. He had only had, we will say, a hamburger or so to eat in some 36 hours, and anything he might say certainly would not be voluntary under that sihiation. By this witness’ own testimony he stated that this defendant was taken with patrolmen who were armed with guns, taken to Cape Girardeau, kept until 7:00 o’clock the following morning and then interrogated all that day and then half of the next day or next until three o’clock in the morning. We think that violates this man’s constitutional rights, and any confession wouldn’t be voluntary under those circumstances and the Court so holds.” (Italics ours.)

The only objection interposed to the admission of the written confession into evidence was, as follows: “We object to it for the reason the statement was taken some 24 hours — * * * after the man was awakened from his sleep and was not permitted to sleep and was given food at one occasion and was continuously interrogated from the time beginning the morning at 9:00 A.M. until this statement was taken, and reduced to writing beginning at midnight of the following night, the following day; therefore,.' it is not voluntary for the reason this man had no rest and had no opportunity to get any rest.”

The court overruled these objections to the oral and the written confessions.

The objections made do not conform to the undisputed testimony of witness Pankey that all of the oral confession was made between 1 p. m. and 7 or 7:30 p. m. December 25, 1961, nor do the objections made conform to the undisputed evidence as to the manner in which the questioning was conducted and the circumstances attending it.

It is true that there was much conflict in the evidence as to what took place between 12 p. m. Sunday night and 7 a. m. Monday, but no conflict as to what happened between 9 a. m. Monday and 3 a. m. Tuesday. There was clearly an issue of fact as to whether the oral and the written confessions were voluntary or whether they were involuntary and obtained by mental coercion by reason of lack of rest, sleep, food and continuous questioning. The issue was for the jury and the court did not err in overruling the particular objections. State v. Smith, Mo.Sup., 310 S.W.2d 845, 851 [8, 9], certiorari denied 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231; State v. Butts, 349 Mo. 213, 159 S.W.2d 790, 791 [1], 140 A.L.R. 1177.

Another objection to the admission in evidence of both .the oral and the written confession does not appear in the transcript of the record and no assignment of error is based upon it, but the matter is presented in the printed argument in appellant’s brief, as follows:

“In addition to the long protracted interrogation the appellant was unlawfully detained under Section 544.170, R.S.Mo.1959, for more than 20 hours, under arrest, without a warrant. The record is clear that the appellant was arrested at 11:00 P.M. on December 23, the oral confession was extracted from him on December 25 at 7:00 or 7:30 P.M., and the written confession was extracted from him at 3:00 A.M. on December 26. The complaint against this appellant was not filed in the Magistrate Court of Pemiscot County, Missouri until December 26, 1961, and a warrant for the appellant was not issued until that date. In addition, the appellant was not arraigned before the Magistrate Court until January 2, 1962.”

At the request of this court a certified copy of the warrant for defendant’s arrest has been filed here and it shows that it was issued on December 27, 1961 and was served on defendant on the same day. A certified copy of the transcript filed by the magistrate in the circuit court in this cause recites that the complaint was filed on December 26, 1961 and a warrant issued on •the same day and that, thereafter, the defendant was arraigned on January 2, 1962.

Appellant relies upon Watts v. State of Indiana, 338 U.S. 49, 57, 69 S.Ct. 1347, 93 L.Ed. 1801; Turner v. State of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; State v. Powell, 258 Mo. 239, 167 S.W. 559; State v. Ellis, 294 Mo. 269, 242 S.W. 952, 24 A.L.R. 682 and State v. Thomas, 250 Mo. 189, 157 S.W. 330. These cases in view of their facts are not controlling here.

However, the present rule in this state is that, the fact that a peace officer violates the state statute by failing to release a prisoner in the time prescribed by the statute without having him charged with a criminal offense within the time specified does not, as a matter of law, render the prisoner’s confession involuntary. See State v. Lee, 361 Mo. 163, 233 S.W. 2d 666, 668[1,2]; State v. Francies, Mo. Sup., 295 S.W.2d 8, 12 [8, 9]; State v. Smith, supra, 310 S.W.2d 845, 851 [8,9], certiorari denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231; State v. Bridges, Mo. Sup., 349 S.W.2d 214, 218[3]. And see State v. Barnett, supra, 338 S.W.2d 853, 857.

Appellant’s final assignment is that the court erred in giving State’s Instruction No. 7 because “under this instruction the jury would have to find that the confessions were valid, irrespective of the mental coercion performed on this Negro by the long period of interrogation without sleep and without food.” Appellant further says that “this Instruction failed to include in the definition of ‘voluntarily’, the mental coercion of this Negro as a result of the browbeating, sweating and long hours of interrogation without sleep or proper food.” Appellant also complains that Instruction 7 “fails to require the jury to find that either the oral or written confessions given by the appellant were, in fact, true”; and that the instruction permits the jury to consider both confessions, even though the jury might believe and find that the facts stated in the confessions were not, in fact, true.

Instruction No. 7 is, as follows:

“The Court instructs the jury that before any alleged statements can be valid, and before you can even consider them, they must have been made voluntarily, that is to say, without anyone having offered to the person who is claimed to have made such statements any hope of leniency or reward of any kind for making such statements, and without anyone making any threat or doing any violence to the person claimed to have made any such statements in order to induce or force him to confess.
“If the jury does not believe that statements, claimed to be a confession made by the defendant were made by him, or even though made, were not voluntarily made by him as defined above, the jury should entirely disregard such statements in arriving at your verdict.
“If, however, the jury does believe beyond a reasonable doubt that statements, claimed to be a confession were made by the defendant, and were voluntarily made by him as defined above, the jury may consider such statements and you should give them such weight, if any, as you believe they deserve in arriving at your verdict. Given M. C.”

Respondent insists that the record in the instant case shows no facts “on which the jury could have found that appellant was subjected to mental coercion”; and that in the absence of such evidence the court had no duty to submit the issue to the jury. We •think the evidence reviewed was sufficient, and particularly so since defendant was in custody and the burden rested on the State to show the confessions were voluntary. Respondent further argues that “no request was made by appellant” that the issue of mental duress and coercion be included in Instruction No. 7 on the issue of voluntariness. That duty did not rest on appellant. Respondent also cites State v. Stidham, Mo. Sup., 305 S.W.2d 7, 17, where a similar instruction was approved, but the facts were different.

It has been noted that the objections to the oral and written confessions were based upon the theory that interrogation of defendant was continuous and extended over a long period of time, and that the defendant had not been permitted to sleep, rest or have proper food and drink and, therefore, that the confessions were obtained by duress and mental coercion. While, as stated, the evidence on some of these matters was conflicting, the issue was for the jury and the issue of mental duress and coercion had to be decided in order to determine whether the confessions were or were not voluntarily given. No such issue was presented to the jury by Instruction 7 or any other instruction. In omitting to present the issue of mental duress and coercion for determination by the jury, the instruction was clearly erroneous and should not have been given. We find no merit in the other contentions.

The judgment is reversed and the cause remanded.

All of the Judges concur except HOLMAN, J., not sitting.


author: BROADDUS, Presiding Judge.

text:
    John Michael TUOHEY, Deceased, By Perrin D. McElroy, Administrator of His Estate, Plaintiff-Respondent, v. NATIONAL INSURANCE UNDERWRITERS, Defendant-Appellant.
    No. 23682.
    Kansas City Court of Appeals. Missouri.
    June 3, 1963.

      Rodger J. Walsh, Linde, Thomson, Van-Dyke, Fairchild & Langworthy, Kansas City, for appellant.
    Winn Thurman, Thurman, Thurman & Lafferty, Kansas City, for respondent.
   BROADDUS, Presiding Judge.

This is an action based upon an insurance policy covering the loss of an airplane. Plaintiff had a verdict and judgment. Defendant appealed.

The deceased was the named insured under a Combination Aircraft Policy issued by the defendant-appellant, the National Insurance Underwriters, a reciprocal insurance exchange.

The policy insured an aircraft, a Piper Tri-Pacer, C.A.A. No. N2745-P, Model PA-22 which was built in 1955.

The aircraft was flown by deceased from Chicago to St. Louis, Missouri and then enroute to Kansas City, Missouri, it crashed near Chillicothe, Missouri, on March 31, 1957, and was destroyed. The deceased was killed with his wife in the crash.

Among the risks covered by the policy was “Coverage F — All Risks while in flight —to pay for all physical loss of or damage to the aircraft while in flight * * * ” which provided the limit of liability to be $5,500 less $150 deductible. The policy also contained the following exclusion:

“Exclusion... This policy does not apply... . '
(a) Under Coverages A, B, C and H to any insured who operates or permits the aircraft to be operated, or under Coverages D, F and G, to loss while the aircraft is in flight by or with the permission of the Insured during or as a result of its operation:. (3) under Instrument Flight Rule(s) (IFR) conditions unless the pilot possesses a valid Instrument Rating and is proceeding in accordance with Instrument Flight Rules: ⅜ ⅝ * ”

The policy contained the following definition:

“_(J) Instrument Flight Rule(s) (IFR). The term ‘Instrument Flight Rule(s) (IFR)’ whenever used in this policy shall mean those rules governing Instrument Flight as established by the duly constituted agency(s) of the Federal Government having jurisdiction over Civil Aviation...”

The Instrument Flight Rules, Title 14, Code of Federal Regulations, Sections 60.30 to 60.41, are as follows:

“Aircraft shall comply with the following requirements as to ceiling and distance from clouds:
“(a) Within Control Zones. Unless authorized by air traffic control, aircraft shall not be flown when the ceiling is less than 1,000 feet, or less than 500 feet vertically and 2,000 feet horizontally from any cloud formation.
“(b) Elsewhere. When at an altitude of more than 700 feet above the surface aircraft shall not be flown less than 500 feet vertically and 2,000 feet horizontally from any cloud formation; when at an altitude of 700 feet or less aircraft shall not be flown unless clear of clouds.
“Visibility—
"(a) Ground Visibility Within Control Zones. When the ground visibility is less than three miles, no person shall take off or land an aircraft at an airport within a control zone, or enter the traffic pattern of such airport, unless an air traffic clearance is obtained from air traffic control:
“(b) Flight Visibility Within Control Zones. When the flight visibility is less than three miles, no person shall operate an aircraft in flight within a control zone, unless an air traffic clearance is obtained from air traffic control:
“(c) Flight Visibility Within Control Areas. When flight visibility is less than three miles, no person shall operate an airceaft within a control area.
“(d) Flight Visibility Elsewhere. When outside of control zones and control areas, no person shall operate an aircraft in flight when the flight visibility is less than one mile.
“When aircraft are not flown in accordance with the distance-from-cloud and visibility rules prescribed in the visual flight rules, aircraft shall be flown in accordance with the instrument flight rules which requires that prior to take-off from a point within a control zone or prior to entering a control area or control zone, a flight plan shall be filed with air traffic control.”

The deceased had no instrument rating at the time of the crash and did not file a flight plan before leaving St. Louis. He left St. Louis about 9:50 P.M. and his estimated time to arrive in Kansas City would be midnight.

Jack Jones, a pilot for 25 years and 15,000 hours of flying experience, was called by plaintiff as his witness. He identified defendant’s Exhibit 1, the weather report, for the evening of the crash together with the flash advisory “that is put out when the weather gets into extreme conditions, * * for pilots to anticipate this bad condition.” The weather report meant that Kansas City was below the minimum of Visual Flight Rules, a thousand feet ceiling and three miles visibility. He read pages 17 through 21 of defendant’s Exhibit No. 2 which were the weather reports. The time on the reports is Eastern Standard time. At Lamoni, Iowa, north-northeast of Kansas City about 100 miles, the weather at 9:28 P.M. CST was two miles visibility and fog and about the same at 10:28 P.M. CST; at Kirksville at 9:28 P.M. CST it was four miles visibility and fog and lowering some; at Butler, Missouri, at the same time it was one mile visibility and sky obscured; at St. Joseph, Missouri, at the same time there was a seven hundred to six hundred foot ceiling, lowering, and visibility two and one-half miles with rain and fog; at Kansas City from 9:28 P.M. CST through midnight the ceiling was 600 feet, sky obscurement; rain and fog; at Vichy, Missouri, at the same time the ceiling went from 800 to 5500 feet and the visibility was 15 miles. Vichy is about 175 miles southeast of Kansas City. Jones testified that it was instrument flight rule conditions at Lamoni, Iowa; St. Joseph, Kansas City, and Butler, Missouri, from 9:28 CST to midnight on the night of the crash. Columbia was not instrument weather. It was his opinion that the chances of it being instrument flight conditions at Chillicothe at the time the deceased crashed were real good.

Mr. Jones testified that the Chillicothe Airport is in a control area and not in a control zone. The air space from the ground up to 700 feet is not considered within the control area. One may fly under Visual Flight Rules as long as he stays under 700 feet altitude, clear of clouds and has a mile visibility. The rules applying to this type of flight are different from those restrictions one finds when he enters a controlled field (controlled zone) like the Municipal Airport in Kansas City.

Austin C. Vincent, a lawyer and private pilot, called by the plaintiff, learned in his inquiry that the deceased was advised by the St. Louis radio of the flash weather advisory and that it would be unwise for the deceased to take off and start the trip. It was his opinion, based upon the same weather reports and his investigation of the crash, that it was instrument weather over the whole state of Missouri that evening. The pilot was advised that the St. Louis radar showed thunderstorms west of St. Louis that night. At night you cannot see the weather coming as you can in the daytime. It was his opinion that it was instrument flying conditions at the time the deceased crashed near Chillicothe and also at Lamoni, St. Joseph, Kansas City and Butler, Missouri.

Robert Beebe, a consulting meteorologist, proprietor of Midwest Weather Service, who has done graduate work in meteorology and taught at the University of Chicago, and was an aviation forecaster for the United States Weather Bureau and has spent the last twenty-five years in forecasting and observation of the weather testified that he examined defendant’s Exhibits 1 and 2, the weather reports, and it was his opinion that it was instrument flight conditions at Kansas City, St. Joseph, Lamoni and Butler, Missouri, on the evening of the crash at 9:30 P.M. CST until midnight. The weather was moving from west to east. Flash Advisory No. S issued by Kansas City indicated ceiling generally three to seven hundred feet, visibility two to four miles, intermittent rain and fog through Kansas and extreme West Missouri lowering locally to ceiling, sky obscured one-half mile, fog for brief periods, valid until 10:30 P.M. CST, and this flash advisory indicated instrument weather any place, in either control area, control zone, or any place else. It was his opinion that the visibility was less than three miles at Chillicothe between 9:30 CST and midnight. Generally visibility in the air is less than it is on the ground. It must be at least three miles in a control zone.

St. Louis tower and St. Louis ATCS gave deceased the Columbia, Kansas City and Butler, hourly weather report, the Columbia and Kansas City forecast and the Kansas City flash weather advisory which deceased acknowledged receipt of and advised he was proceeding to Kansas City.

Phillip E. Meadows, air traffic control specialist, St. Louis, radioed deceased the weather at St. Louis, and that there were general indications of Instrument Flight Rule conditions west of St. Louis. He could not stop deceased from taking off.

William E. Saucier, airways operation specialist, Federal Aviation Agency, St. Louis, advised deceased of the flash advisory which was potentially hazardous to flying, and that Kansas City was below VFR mínimums.

Henry Felix Duggins, flight service specialist, Federal Aviation Agency, St. Louis, had no authority to stop deceased because the weather was forecasted to become worse at’ Kansas City area. Nancy Frances Grace, Bessie Mae Wilson and Adeline E. German, all of Chillicothe, Missouri, went to church together on the evening of the crash about 7:30 P.M. There had been, a storm before and during the services and they left church after 10:30 P.M. to return home. The storm was terrific while they were in church. After church it was foggy and they saw a flash which appeared to be from three to five miles away and near where deceased crashed. It caused a big blaze. It was misting, hazy, raining and the windshield wipers were operating on their car. It was a severe storm, with the wind blowing and tree limbs down around town. They couldn’t see the stars. It was hazy and foggy in the car lights as they drove along.

The aircraft was valued before the crash at $5,750 and there was salvage of $60. The jury’s verdict was for $5290 which was $5500 less $150 deductible less the $60 salvage.

Defendant’s first contention is that plaintiff failed to make a submissible case because “the policy excluded coverage for loss in flight under Instrument Flight Rule conditions unless the pilot possessed an instrument rating; the pilot did not have an instrument rating and the loss occurred in a flight under Instrument Flight Rule Conditions.”

Plaintiff made a prima facie case by introducing the policy in evidence and showing “loss or damage to the aircraft while in flight.” Foster v. Metropolitan Life Ins. Co., 233 S.W. 499, 500 (Mo.App.); Yarber v. Connecticut Fire Ins. Co., 10 S.W.2d 957 (Mo.App.); Dyer v. Kansas City Life Ins. Co., 188 S.W.2d 758 (Mo.App.). The burden was upon defendant to prove its affirmative defense that instrument flight rule conditions existed, making such type of flight mandatory; that such flight was being done in violation of the exclusion clause of the policy.

The weakness of defendant’s position lies in its failure to comprehend control zone flights and flight elsewhere. According to the evidence, when one is not flying in a control zone, flight visibility is only required to be one mile minimum. In the instant case the flight was obviously made in an area where only one mile visibility was required for flight under 700 feet altitude. Defendant’s whole case in the presentation of its affirmative defense that instrument flight rule conditions existed is bottomed on its contention that the flight was being conducted in a control zone requiring three mile visibility plus vague testimony of witness Beebe that visibility at Chillicothe was less than three miles. Defendant completely ignores the testimony of witnesses Grace and Wilson from which the jury could reasonably infer that visibility was from three to five miles.

Under the decisions we have cited above, where plaintiff has made a prima facie case and an affirmative defense is tendered,, the case cannot be taken from the jury. The plaintiff has the right to have the jury pass upon the credibility of defendant’s witnesses and the weight of their testimony, though uncontradicted. The court committed no error in overruling the motion for a directed verdict.

Defendant next contends that the court erred in refusing to allow it to read to the jury the inventory and appraisal filed in the Probate Court in connection with deceased’s estate showing the claim against defendant to have been appraised at $1. We fail to see how defendant was in any way prejudiced by the court’s ruling. That the airplane was totally destroyed was admitted and its value ($5750) was never in dispute.

Defendant also says that the court erred in refusing to permit it to read to the jury the portions of the depositions of three witnesses to the effect that deceased was lost before he landed at the St. Louis Airport and had to be landed by directional finding radio. Plaintiff objected “to everything up to the landing at St. Louis and not after the take-off or after the landing at St. Louis.” In ruling the trial court stated: “The sole question — or the reason that defendant denies liability in the case is that it contends the plaintiff was engaged in instrument flying at the time of the crash. What happened from Chicago to St. Louis has no bearing in the lawsuit. At the time of his take-off in St. Louis and that part of the record that might pertain to information he did get concerning weather would be material to this case. Beyond that, it would not.” We agree with that ruling.

Defendant next claims that the court erred in refusing to allow it to inquire on the voir dire examination if any member of the jury panel had an interest in the Missouri Credit Union. It appears that the Credit Union by reason of the fact that it held a mortgage on the airplane was named in the loss payable clause of the policy “as its interest may appear.” It further appears that the mortgage had been paid from funds derived from insurance on the life of deceased. In ruling the trial court said: “From what you tell me they (Credit Union) were paid off. They had an interest in the proceeds at the time the policy was written. They have no interest now. Therefore, the question is not proper and will not be permitted.” That was the correct ruling.

Defendant’s final contention is that the court erred in giving at plaintiff’s request Instruction 1, in that it failed to negate the affirmative defense of the defendant contained in Instruction No. 4, and failed to hypothesize facts to show that plaintiff had fully complied with the terms of the policy.

Instruction 4 reads as follows:

“The Court instructs the jury that it is admitted that the deceased John Michael Tuohey on or about March 31, 1957, did not have an instrument flight rating and the Court further instructs you that under the terms of the policy mentioned in evidence that the policy does not apply to loss while the aircraft is in flight by the insured under instrument flight rule conditions unless the pilot possesses a valid Instrument Rating and is proceeding in accordance with Instrument Flight Rules, and you are further instructed that if you find and believe that on March 31st, 1957, before the deceased John Michael Tuo-hey left the Saint Louis Airport, he was advised of weather conditions along his route to Kansas City, if so, and if you further find and believe that the flight in the said weather conditions constituted operating the aircraft under instrument flight rule conditions, if so, and if you further find and believe that at the time of said crash, John Michael Tuohey was operating the aircraft under instrument flight rule conditions, if so, then your verdict must be for the defendant.”

Perhaps Instruction No. 1 is not as definite as it should have been, but when it and Instruction 4 are read and construed together we fail to see how the jury could have been mislead. The rule governing the instant situation is re-stated in the case of McDaniel v. McDaniel, Mo., 305 S.W.2d 461, 467, 468, as follows:

“ ‘Instructions must be read and construed together’; and ‘if the plaintiff’s instruction, covering the whole case and authorizing a verdict, does require the finding of all essential elements of the plaintiff’s case, but states some of these indefinitely or ambiguously or in language which might be misleading, then an instruction on the part of the defendants which clearly and specifically requires the finding of essential elements does not conflict with the plaintiff’s instruction, but instead makes it clear and definite’; and so 'when all of the instructions thus harmonize and when read together correctly state the law, any such indefinite, ambiguous or misleading language in the plaintiff’s instruction is cured by the other instructions.’ ”

Finding no error in the transcript prejudicial to defendant, the judgment is affirmed.

All concur.