author: FINCH, Judge.

text:
    STATE of Missouri ex rel. Eula W. PLYMESSER, Respondent, v. A. B. CLEAVELAND, Judge of the Probate Court of Caldwell County, Missouri, Appellant.
    No. 50522.
    Supreme Court of Missouri, Division No. 2.
    March 8, 1965.

      Frank L. Pulley, Cameron, Stephen J. Millett, Kingston, Knipmeyer, McCann & Millett, Kansas City, of counsel, for respondent.
    Paul Knudsen, Kingston, Harold L. Miller, Maysville, for appellant.
   FINCH, Judge.

This is an appeal from a decree of the Circuit Court of Caldwell County making absolute a writ of prohibition against the Probate Judge of Caldwell County, Missouri, whereby he was prohibited from taking proof relating to a purported last will and testament of J. B. Robertson, deceased, dated September 29, 1956. Jurisdiction of this court is based upon the fact that Eula W. Plymesser, respondent, will receive one-half of an estate of approximately $43,000, part real and part personal, if the purported will of September 29, 1956, is not admitted to probate, whereas she would receive $50 by the terms of the will if it is admitted to probate. The amount involved is the difference between one-half of approximately $43,000 and $50. State ex rel. Fleischaker v. Allen et al., 338 Mo. 797, 92 S.W.2d 169.

J. B. Robertson died February 28, 1960. A will signed by J. B. Robertson and dated September 27, 1958, was admitted to probate in the Probate Court of Caldwell County. Letters testamentary were granted March 1, 1960, and the first publication of notice thereof was on March 3, 1960. On September 19, 1960, a will contest suit was instituted. A jury found that the will was procured by undue influence. An appeal from that judgment to the Supreme Court of Missouri was dismissed on January 14, 1963. Thereafter, on February 28, 1963, an application was filed in the Probate Court of Caldwell County seeking to have admitted to probate a carbon copy of a purported prior will of J. B. Robertson dated September 29, 1956. Notice of this application was sent to attorneys for respondent, who appeared in the Probate Court and objected to the jurisdiction of the Probate Court to entertain the application. The Probate Court refused to dismiss the application for probate, and respondent thereupon filed her application for writ of prohibition in the Circuit Court of Caldwell County. It recited the above facts, and recited that counsel for petitioner (respondent herein) on March 1, 1963, appeared in the Probate Court of Caldwell County and objected to the jurisdiction of said court to entertain the application or admit the instrument to probate on the following grounds:

“(A) The Probate Court of Caldwell County, Missouri, had no authority to admit said purported Will dated September 29, 1956, to Probate because of the mandatory provisions of Section 473.050 V.A. M.S., Revised Statutes of Missouri, 1959, which clearly states, ‘No proof shall be taken of any will nor any certificate of probate thereof issued, unless the will has been presented to the Judge or clerk of the Probate Court, within nine months from the date of the first publication of the notice of granting letters testamentary or of administration by any Probate Court in the State of Missouri, on the estate of the testator named in the will so presented.’ And that the Probate Court of Caldwell County, Missouri, well knows that more than nine months have elapsed since the first publication of notice of letters testamentary were had upon the estate of J. B. Robertson, deceased.

“(B) That O. J. Adams, as Executor of the estate of J. B. Robertson, deceased, and the other defendants in the action to contest the Will of J. B. Robertson, dated September 27, 1958, known as case No. 7952 in the Circuit Court of Caldwell County, Missouri, and as case No. C-5787 in the Circuit Court of DeKalb County, Missouri, and as case No. 49343 in the Supreme Court of Missouri, failed to allege in their respective answers that the purported will dated September 29, 1956, was in existence and that it was a valid existing Will of J. B. Robertson, deceased, in violation of the provisions of Section 473.083(2), V.A. M.S. Revised Statutes of Missouri, 1959, which states, ‘Where the petition or the answer thereto is based on the ground that an instrument other than the Will probated is the last Will of the testator, or that a rejected Will, other than a Will probated is the last Will of testator, the pleadings shall be so framed as to submit the issue of which of said instruments is the last Will of testator, or whether decedent died intestate, and the judgment therein shall determine said issue. No Will shall be established in the action unless same has been theretofore probated or rejected by the Probate Court.’

“The purpose of this Section as stated in V.A.M.S. is to prevent a succession of Will contests.

“(C) That J. B. Robertson destroyed and revoked the instrument dated September 29, 1956, and it does not constitute his Last Will and Testament.”

The application further recited that the Probate Court was about to act in excess of its jurisdiction, and the petitioner had no adequate remedy by appeal or otherwise and sought a writ of prohibition. A preliminary writ was issued, to which appellant subsequently filed a return. The return did not deny any of the facts alleged in respondent’s petition. It alleged that Section 473.050 (all references are to RSMo 1959, V.A.M.S., unless otherwise indicated) was inapplicable for the reasons that since the will of September 27, 1958, was set aside there was no administration on said will and the notice of letters testamentary was a nullity, that the five-year statute of limitations provided for in Section 473.070 was applicable, that the will of September 27, 1958, was finally rejected as the will of deceased on February 20, 1963 (the date of the entry of judgment upon the mandate of the Supreme Court by the Circuit Court of DeKalb County, Missouri), that the application on February 28, 1963, to admit the will of September 29, 1956, to probate was. within nine months of the date of the rejection of the prior will, that Section 473.-083(2), cited by respondent as making it necessary to plead and prove in the will contest case other wills relied upon, was not applicable, and that therefore the Probate Court had jurisdiction to admit to probate the will of September 29, 1956. Thereupon, respondent filed and the court sustained a motion for judgment on the pleadings and the writ of prohibition was made absolute. Motion for new trial was filed and overruled, and this appeal followed.

Respondent has filed a motion to dismiss this appeal on the ground that appellant’s brief does not comply with Rule 83.05, V.A.M.R. It is doubtful that the brief does comply with that rule, but we have concluded, under the particular facts here involved, to overrule the motion to dismiss and to consider the appeal on its merits.

Various assignments of error set out in appellant’s motion for new trial are not briefed in appellant’s brief on appeal. Those which are not so briefed are waived. Ayres v. Keith, Mo., 355 S.W.2d 914, 919.

The single proposition raised in appellant’s points relied on is that the five-year statute of limitations provided by Section 473.070, rather than the nine-month statute provided by Section 473.050, was applicable here. Quoting from appellant’s brief, the point is summarized in this language: “If the contest of a will operates in the nature of an appeal from the order of the probate court probating the will, and if such contest is successful does not the rejection of the will carry with it also the effect of annulling and vacating all orders made in connection with such will, including of course the appointment of the executor and the voiding of the notice of letters testamentary? It is our contention that it does and that therefore that situation places the estate in the position of an estate which has never been administered upon thus giving the proponents of the will five years in which to offer the will for probate.”

An examination of some of the provisions of the Probate Code to determine the legislative intent is in order.

Section 473.050, the section relied on by the trial court as the basis of its writ of prohibition, provides as follows: “No proof shall be taken of any will nor any certificate of probate thereof issued, unless the will has been presented to the judge or clerk of the probate court, within nine months from the date of the first publication of the notice of granting letters testamentary or of administration by any probate court in the state of Missouri, on the estate of the testator named in the will so presented.”

Section 473.070, cited by appellant as the governing provision, provides in part as follows: “In addition to the limitations of time provided in section 473.050, no written will shall be admitted to probate and no administration granted unless application is made to the court for the same within five years from the death of the decedent. * * * ”

Publication of notice of letters testamentary on the estate of J. B. Robertson occurred March 3, 1960. Application to have the will of September 29, 1956, admitted to probate was filed in the Probate Court of Caldwell County on February 28, 1963, almost three years after the publication of the notice of letters testamentary. Unless, as appellant contends, the publication of notice of March 3, 1960, was a nullity, it seems clear that the provisions of Section 473.050 would bar the taking of proof relative to the will of September 29, 1956. In that event the limitation provided in Section 473.070 would not be applicable.

Section 473.013 provides that the administration of the estate of a decedent from the filing of the application for letters testamentary or of administration until the decree of final distribution and the discharge of the last administrator or executor is one single proceeding in rem, for purposes of jurisdiction. Section 473.033 provides for the clerk to publish notice of the issuance of such letters in the manner prescribed, notifying all creditors to file claims within nine months from the date of the notice or be barred. The following section (473.037) provides that if notice of the first letters granted on an estate is published pursuant to Section 473.033, no notice of letters thereafter granted to a successor executor or administrator is required. Section 473.137 provides for the appointment of an administrator pendente lite pending a will contest case (this would be the executor unless it appears that he has an adverse interest to the contestant of the will) and this administrator proceeds with administration of the estate until termination of the will contest. Section 473.143 (2) provides that if the probate of a will is set aside, the letters testamentary shall be revoked, and other letters granted of the goods unadministered.

When these provisions are applied to the estate of J. B. Robertson, it is apparent that the administration on his estate commenced with the application for letters testamentary on March 1, 1960, and will continue for jurisdictional purposes as a single in rem proceeding until the estate is closed by a decree of final distribution and the discharge of the last executor or administrator. The publication of the notice of letters dated March 3, 1960, is the only notice of issuance of letters which will be required. Section 473.037 expressly so provides. It refers to the original publication of notice of letters issued, whether testamentary or of administration. The section does not say that it shall not apply to letters issued as a result of a will later set aside. The language is not qualified in any manner. The subsequent sections referred to above show that it is intended that the administration on the estate will continue pending the will contest case, and at the conclusion thereof will be continued to final distribution and discharge, regardless of whether the will is sustained or not. It is obvious that the statutes do not contemplate that the administration of the estate is fragmented into various separate proceedings. Instead, it is one continuous proceeding in rem, the original notice of which under Section 473.033 suffices as notice of the entire- proceeding. Section 473.143(2) applies specifically to a situation where the prohate of a will is set aside. It does not provide that in such situation the prior administration proceedings and notice thereof are annulled and vacated, as appellant contends. Instead, the statute provides for continuance of the administration and for issuance of letters of the goods unad-ministered. Missouri textwriters also have recognized that institution of the will contest does not remove the estate of the decedent from jurisdiction of the probate court, that administration of the estate continues pending the will contest, and that at the close of the will contest the same administration continues either by the executor if the will is not set aside or by an administrator if the will is set aside. See Maus, Missouri Practice — Probate Law and Practice, Vol. 3, Sections 275-279, inclusive, and Limbaugh, Missouri Practice with Forms, Vol. 2, Sections 1146 and 1147.

The language of Section 473.050 is consistent with the provisions of these other sections. In providing for a period during which a will must be presented or barred in an' estate where letters testamentary or of administration have been issued previously, it makes the limitation period run from the date of first publication of notice of issuance of such letters. It recognizes that there may have been letters testamentary which quite obviously would have been issued on the basis of some other will admitted to probate. Section 473.050 contains no limiting phraseology which makes it inapplicable to notice following letters based on a will subsequently set aside. (It should be noted also that in Section 473.077 the Legislature again provides for this nine-month limitation period dating from the date of first publication of notice of letters.)

The courts of this state have on various occasions upheld Section 473.050 (or the similar sections preceding it wherein the limitation period was one year rather than nine months). In State ex rel. Bier v. Bigger, 352 Mo. 502, 178 S.W.2d 347, this court held that the section in question was a special statute of limitations, not included in the general chapter on limitations, and that the running thereof could not be tolled for any reason, including fraud or concealment. The court held that after the lapse of one year from the publication of notice of letters of administration in that estate, the Probate Court could not take proof of a will which had been fraudulently concealed up to that time. See also Wyers v. Arnold, 347 Mo. 413, 147 S.W.2d 644, 134 A.L.R. 876, and State ex rel. Shriners’ Hospitals v. Hensley, Mo.App., 385 S.W.2d 820. See also Limbaugh,. Missouri Practice with Forms, Vol. 1, Sec. 606, and Maus, Missouri Practice — Probate Law and Practice, Vol. 3, Section 203.

At one point in his argument appellant contends that if Section 473.050 is applicable there would be a nine months period for proving the alleged will of September 29, 1956, from the date of final rejection of the 1958 will, and he cites in support thereof the case of Buchholz v. Cunningham et al., 340 Mo. 302, 100 S.W.2d 446. The Buch-holz case does not support this proposition at all. There, three different wills were all presented to the Probate Court within a short time after the estate was opened and well within the limitation of one year provided at that time by the section of the statutes which preceded Section 473.050. The Probate Court, after taking proof of one of the wills, did not make an order until several months later rejecting the will in question. Within a year thereafter suit was brought to have that particular will established as the will of the deceased, and the Buchholz case holds that the suit brought within one year from the date of action by the Probate Court in rejecting that particular will was not barred by limitation under the law as it then existed. In the case at bar the will of September 29, 1956, was never presented to the Probate Court prior to the filing of the application for probate of same on February 28, 1963, long after the expiration of nine months from the date of first publication of notice of letters.

We hold that Section 473.050 was applicable and that under the terms thereof the Probate Court did not have jurisdiction to take proof with respect to the purported will of September 29, 1956, pursuant to the petition and application for probate filed February 28, 1963. The judgment of the trial court making the writ of prohibition absolute is affirmed.

All of the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Grace DEYO, Appellant.
    No. 50582.
    Supreme Court of Missouri, Division No. 2.
    March 8, 1965.

      Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
    Sam Appleby, Ozark, Edward R. Boyle, Clear Lake, Iowa, Clyde Rogers, Gaines-ville, for appellant
   FINCH, Judge.

Defendant Grace Deyo and one Bill Shindler were charged jointly with murder in the first degree by poison of Kenneth V. Deyo, husband of Grace Deyo. A severance was granted. Grace Deyo was tried and convicted and sentenced to life imprisonment. On appeal, that conviction was reversed and the case remanded. See State v. Deyo, Mo., 358 S.W.2d 816. The case was retried and defendant Grace Deyo again was convicted and sentenced to life imprisonment. A timely motion for new trial was filed and overruled, and this appeal was taken.

The evidence in the second trial was substantially the same as that in the first trial. The opinion on the first appeal detailed that evidence. It would serve no useful purpose to recite it again, and it will not be repeated herein except insofar as necessary in the consideration of specific issues.

Appellant contends that there was insufficient evidence to prove a conspiracy between appellant and Bill Shindler, and, additionally, that there was no evidence of any overt act by appellant, and that her motion for judgment of acquittal should have been sustained for those reasons. These issues were raised by appellant on the prior appeal, and this court held that the evidence was sufficient to show the existence of a conspiracy, and that evidence of an overt act by appellant under those circumstances was unnecessary. State v. Deyo, supra, 358 S.W.2d 816, 822 [9], [10], [H].

Appellant also complains that the trial court erred in admitting evidence, including statements of appellant, before the corpus delicti was proved. This same issue was raised on the prior appeal, and this court held that it is not essential that the independent proof of the corpus delicti come first in the order of proof. 358 S.W. 2d 816, 819 [5]. In addition, appellant raises the proposition that there was no sufficient proof of the corpus delicti, but that question was ruled against appellant on the prior appeal. 358 S.W.2d 816, 821 [7].

Appellant also complains of the admission of proof of certain remarks of Bill Shindler on the basis that these were not made in the presence of appellant and were hearsay. This point was ruled against appellant on the prior appeal. 358 S.W.2d 816, 824 [12]. In view of the fact that there was evidence of a conspiracy, the statements of one of the conspirators were admissible against the other conspirator.

Appellant complains of the giving of Instruction No. 3 defining conspiracy, which was as follows:

“The Court instructs the jury that a conspiracy, as that term is used in these instructions, means a combination of two or more persons who use concerted action to accomplish a criminal or unlawful purpose.”

No authority is cited by appellant in support of her position. A substantially similar instruction was approved by this court in State v. Hill, 273 Mo. 329, 201 S.W. 58 [4], See also 2 Raymond’s Missouri Instructions, Section 3092. This point is ruled against appellant.

The State relied heavily on statements, both oral and written, of the defendant Grace Deyo. Her written statement was received in evidence as State’s Exhibit “A”. Omitting caption and signatures, it read as follows:

“This statement is made in the presence of Sheriff George Rose of Ozark County Missouri, and to Trooper John Teichman of the Missouri Highway Patrol. It is made to these persons, without any threat or promise, and I understand that it may be used either for or against me in a Court of Law.
“My name is Grace Marie Deyo. I am 43 years old. I was born on January 6, 1917 at Clear Lake, Iowa. I am the widow of Kenneth Virgil Deyo, and have 3 children. Their names are, Doris Jean, age 10, Diana Marie, age 4, and Dorothy May Miller, age 20, who lives in Houston, Missouri. At the present time, I am living at RFD #2 Clear Lake, Iowa.
“At approximately August 1958, Bill Shindler started coming around my home at Almartha, Missouri. He first came there to look at our cattle, to see about buying some. Shindler returned to the farm several times since then, during which times, he and I had sexual relations. One of the neighbors told my husband about these visits of Shindler, and Kenneth and him had an argument about it. Bill told me that Kenny had lit into him about it.
“Around April 1959, Bill suggested that he would take Kenny out into the woods and shoot him, because he didn’t like the way he was treating me and the kids. I told Bill that he couldn’t get away with it, and he didn’t say any more about it. Later on, Bill went up to see John Hodges, to see about getting some strychnine poison for him. That was around May sometime. Hodges was the one who told him about it. I don’t know if he was going to get it for Bill or not
“Several weeks before Kenny died, Bill Shindler showed me a small bottle that had a label stating the bottle contained strychnine. He said that he got some fellow in Gainesville to take him to Mountain Home, Arkansas to get it. I had told him that Kenny was taking Vitamin tablets, and he said he would put some of the poison in some capsules and put them in the bottle where Kenny kept his Vitamins. Bill showed me some brown capsules, that he said he was going to put the poison in. They looked just like the ones Kenny was taking. Bill told me that he was going to put the capsule with the poison in it, back into the bottle of Vitamins. I don’t know when he did this, but I did know he was going to do it.
“Kenny would take his Vitamins just before he went to bed every night. On July 27, 1959, at approximately 6:30 P.M., we had our supper. I think that Kenny took his Vitamin around 8 or 8:30 P.M. We sat up and watched the News on TV and then Kenny got sick. He complained of a lot of pain in his left arm and side, and said he thought he was having a heart attack or a stroke. In a short time, he just slid out of the chair and laid on the floor. I thought he might have gotten the pill with the poison in it, but I wasn’t sure, because he said he thought he was having a heart attack. I didn’t know for sure, because I didn’t know how strychnine acted. He laid on the floor until about Midnight, when I felt his pulse and believed he was dead. I had wanted to go get a Doctor, but he wouldn’t let me leave him. When I knew he was dead, I went down to Howard Plasters to get help.
“I haven’t seen Bill Shindler since Kenny’s death, but he had been around my home with other people there. 1 had a sale August 10, 1959, and then came to Clear Lake, Iowa, with my folks. They didn’t want me to live down there alone.
“I do remember Bill telling me about this fellow who is supposed to have taken him to Mountain Home, that he had gotten rid of his wife the same way. I don’t recall Bill ever saying who this fellow was.
“I have read the above statement consisting of one (1) typewritten page, and it is the truth to the best of my knowledge.
“Signed this 1st day of October, 1959 at the Sheriff’s Office in Mason City Iowa, in the presence of the above named Officers.”

The defense contended that this statement of Grace Deyo was not a voluntary one. In addition, the defense introduced testimony of Herman Melton,- a teacher in special education, and Professor James Edward Bane, a psychology teacher at Southwest Missouri State College. Mr. Melton testified that he gave Grace Deyo the Kuhl-man-Anderson test and the results disclosed an I.Q. of 74 and a mental age of 12. Professor Bane administered the revised Stanford-Binet test and Grace Deyo performed on the level of a normal 10-10i^-year-old person, and had an I.Q. of 65. Professor Bane examined State’s Exhibit “A” and then testified that, based on his experience and his test of Grace Deyo, he was of the opinion that she could not have made that statement. He was cross-examined extensively, but insisted that he would not expect her to do as well as that statement, or to be familiar with some of the words used in the statement.

The court gave three instructions which dealt with statements of the defendant. These were Instructions Nos. 11, 12 and 13, which were as follows:

“INSTRUCTION No. 11
“The Court instructs the jury that if verbal statements of the defendant have been testified to in this case, they are to be received by you with great caution on account of the liability of witnesses to forget or misunderstand what was really said or intended.
“INSTRUCTION No. 12
“The Court instructs the jury that any statement or statements made by the defendant, Grace Deyo, received in evidence are to be given such value and' weight as evidence as you believe they deserve, if you find that said statement or statements were voluntarily given.
“You are further instructed that to make a statement or statements voluntary in nature, it is not necessary to prove that such statement or statements were given spontaneously, that is, made without either persuasion or questioning.
“In this regard the Court instructs you that by the term ‘voluntarily’, the Court means not secured by intimidation, promises or duress. In considering whether or not said statement or statements were voluntary you may consider such elements as the sex, age, disposition, her mental qualities, the length of time the defendant was questioned prior to the giving of such statement and the environment or place where said statement or statements were given, as well as all other circumstances existing and admitted in evidence surrounding the defendant at the time said statement or statements were made.
“Therefore, if you find and believe that the statement or statements of the defendant, Grace Deyo, admitted in evidence, were voluntarily made, you will give such value of evidence to said statement or statements as you believe they deserve. However, if you believe that said statement or statements were not voluntarily made, then you should disregard said statement or statements in arriving at your verdict.
“INSTRUCTION No. 13
“The Court instructs the jury that criminal responsibility does not depend on the mental age of the accused or upon the question of whether her mental age is above or below that of an average or normal person. Mere weakness of mind, ignorance, or deficiency in mental capacity does not excuse the perpetration of a criminal act. unless the mentality of such person is of such subnormal character as to render her incapable of distinguishing between right and wrong.
“You are further instructed that any evidence in. this case concerning the mental age, I.Q. or degree of mentality of the defendant, Grace Deyo, is admissible for one purpose only, and that is, for your consideration, together with all other facts and circumstances as outlined in Instruction No. 12 in determining whether or not the statement or statements given and made by the defendant, Grace Deyo, to or in the presence of law enforcement officers, were made voluntarily.”

Appellant does not complain of Instructions Nos. 11 or 12. Neither does she complain of the first paragraph of Instruction No. 13. In fact, appellant’s brief states that this paragraph represents a correct expression of the law. Appellant does contend, however, that the second paragraph is improper because it constitutes a comment on the evidence, and it improperly restricted the jury in considering evidence concerning the mental age, I.Q., or degree of mentality of defendant to the question of whether the statements were made voluntarily.

There was no plea in this case that defendant was not guilty by reason of insanity. Neither Mr. Melton nor Professor Bane purported to testify in that regard. However, Professor Bane did testify that in his opinion defendant Grace Deyo could not have made the statement received in evidence as State’s Exhibit “A”. The State’s evidence with respect to Exhibit “A” had been that it was typed by Sheriff Allen and then read and signed by the defendant. Trooper Teichman testified that the words used were the words of Grace Deyo but that the grammar or sentence structure was by Sheriff Allen. Sheriff Rose had testified that Sheriff Allen took down the statement as given by the defendant. This and other testimony of these witnesses raised a question of fact as to the reliability of State’s Exhibit “A” and the extent to which it constituted the statement of Grace Deyo. This was not the same as the question of whether the statement was voluntary, which was also in issue. The latter is a question of whether the statement was induced by something such as intimidation or promises, and it also includes the question of whether the mental condition was such as to make the statement one which was not voluntary. However, the evidence as to her mental capacity also was relevant on the probative value, if any, of Exhibit “A” and the extent to which it should be considered by the jury as a confession by defendant. The weight to be given to Exhibit “A” on this latter question was for the jury under proper instructions.

In the case of State v. Church, 199 Mo. 605, 98 S.W. 16, this court dealt with the admissibility of an alleged confession of the defendant. Evidence of alleged insanity was offered prior to the admission in evidence of the confession for the purpose of establishing its inadmissibility. The court held that the exclusion of the testimony at that point was proper, and that the confession properly was received in evidence. In so holding, the court quoted with approval from State v. Haworth, 24 Utah 398, 68 P. 155 (which in turn quoted from State v. Feltes, 51 Iowa 495, 1 N.W. 755), as follows (98 S.W. 16, 22): “Evidence that the defendant at the time of the alleged confession was intoxicated or insane was proper to impair or destroy the effect of the confession. The defendant was allowed to introduce such evidence upon cross-examination. But he complains that he should have been allowed to introduce it first, for the reasons above set out. In our opinion the court did not err. It was for the jury to determine what weight should be given to his confession, in view of his mental condition as shown.”

In 23 C.J.S. Criminal Law § 828, p. 228, the rule is stated as follows: “If mental incapacity of accused at the time of making the confession is shown, the confession must he received with caution, and evidence of such mental calibre or condition is competent and material, if not too remote or indefinite, as the fact thereof is to be considered in determining the character of the confession, and in determining whether it was voluntary or involuntary, and also in determining the weight, credibility, and effect to be given the confession.”

See also State v. Evans, 345 Mo. 398, 133 S.W.2d 389, 393 [9]; McAffee v. United States, 72 App.D.C. 60, 111 F.2d 199, 204 [3]; State v. Falbo, Mo., 333 S.W.2d 279, 286 [7], and 23 C.J.S. Criminal Law § 836, p. 253.

Instruction No. 13 told the jury to consider the testimony as to the mental age, I.Q., or degree of mentality of the defendant only on the question of whether her statement was voluntary or involuntary. It told the jury, in effect, that they could not consider the testimony of Mr. Melton and Professor Bane to impair or destroy the effect of the confession even though the jury should believe that part or all of Exhibit “A” did not represent what Grace Deyo said or was capable of saying. In so doing, Instruction No. 13 took away from the jury its right to determine the weight, credibility and effect to be accorded to this testimony on this question of fact. This was error, for which this case must be reversed and remanded.

Appellant complains that the court improperly permitted cross-examination of Professor Bane concerning details of the psychological test administered to the defendant. It is proper, however, to permit the validity and weight of the opinion of an expert witness to be tested on cross-examination. State v. Grapper, Mo., 328 S.W.2d 633, 635 [4]. This was not error.

For the reasons assigned, the judgment is reversed and the cause remanded.

All of the Judges concur.


author: HENRY J. WESTHUES, Special Commissioner. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Willie Wade BURGESS, Appellant.
    No. 50931.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1965.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Carl R. Gaertner, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   HENRY J. WESTHUES, Special Commissioner.

By an information filed in the Circuit Court of New Madrid County, Missouri, the appellant Burgess was charged with murder in the first degree. The crime was alleged to have occurred on November 2, 1963. An application for a change of venue was granted and the cause was transferred to the Circuit Court of Mississippi County. Upon a trial, a jury found Burgess guilty as charged and assessed his punishment at life imprisonment. A motion for new trial was filed which the court overruled and Burgess was sentenced. An appeal was taken to this Court.

The record shows that the trial was had on May 27, 1964. On January 6, 1964, the court appointed Linus E. Young, a member of the New Madrid County Bar, to represent the defendant. After the case was transferred to Mississippi County, the court appointed C. Frank Reeves, a member of the Mississippi County Bar, to aid Young in the trial of the case. These two attorneys represented the defendant throughout the trial. They filed a motion for new trial and after the motion was overruled and defendant sentenced, a notice of appeal was filed. A request to appeal as a poor person was filed and approved. A complete transcript of the proceedings was filed in this Court on defendant’s behalf. The record shows that during the trial, the prosecuting attorney and the defendant’s attorneys observed the rules of evidence and the court was called upon to rule on only a few objections.

The trial court gave the jury an instruction submitting the question of defendant’s guilt or innocence of murder in the first degree or murder in the second degree; further, an instruction was given on circumstantial evidence as well as one on self defense; and an instruction with reference to evidence that the deceased was of a rash, turbulent, and violent disposition was given.

The record is such that it is difficult to find any basis upon which to predicate error. The motion for new trial contains only two assignments which are as follows:

“(1) Because the instructions to the jury are misleading and contrary to the evidence; contrary to the law; and taken as a whole had the effect of directing the jury to return a verdict for the State.
“(2) The Court erred in failing to give an instruction on manslaughter because there was evidence from which the jury could have found that the killing was committed in a sudden heat of passion due to adequate provocation.”

The first assignment presents nothing for review. No specific instruction is complained of nor is any complaint made of the refusal to give any specific instruction. S.Ct. Rule 27.20, V.A.M.R., and State v. Price, Mo., 365 S.W.2d 534, l. c. 538(6).

To rule on the second assignment of error, it is necessary to review the evidence. The transcript justifies the following statement of acts. Henry Thomas, referred to by some witnesses as “Son” Thomas, was the victim of the homicide. He operated a small restaurant in New Madrid, Missouri. People also gathered there and engaged in gambling games. On the evening of November 2, 1963, the defendant and one Bud Boyd were there and had taken part in shooting dice. An argument took place between Bud Boyd and defendant Burgess whereupon the deceased Thomas ejected both from his place of business. While Thomas was asking the defendant to leave, be, Thomas, displayed a knife and said to defendant Burgess, “Boy, I don’t want to hurt you.” There is some evidence that Thomas held the knife against the defend-ant’s body. During this time, Burgess made a statement to the effect that he would kill Thomas before the night was over.

Jerry Thomas, no relation to the deceased, testified that he lived at the same place where Henry “Son” Thomas lived which was about five blocks from the Thomas place of business. His testimony was that on the night of November 2, 1963, at about 10:00 p. m., the defendant came to the place where he lived and asked for a gun. Note Jerry Thomas’ evidence:

“Q Did anyone come to the house that night?
“A Yes, sir.
“Q Who came ?
“A Willie Wade.
“Q Is that Willie Wade Burgess, the boy sitting behind this counsel with the red shirt on ?
“A Yes, sir.
“Q. Did you have any conversation with him?
“A Yes, sir.
“Q What did he say?
“A He come to the door. I had the door locked and was in the bed. He come to the door and knocked on the door.
"Q You just tell it in your own words about what conversation you had with him, if anything.
“A Well, I opened the door, and when I opened the door, Son had the room right next to mine. The door was open. I flipped the light on and I done stumbled to a cot I got up on and I sit on the side of a bed and he said, ‘Son Thomas sent me after his gun. Son told me you had a shotgun he hunted with,’ and he said, ‘Son Thomas sent me after the gun,’ and he went in Son Thomas’ room. I am sitting on the bed. He walked in Son Thomas’ room and he looked around on the wall. He said, ‘Son Thomas didn’t have a gun.’ I said, ‘Son Thomas carried that gun to hunting and,’ I said, ‘He didn’t bring it back yet.’ He said, ‘Well, you got it around here somewhere,’ and he walked to Son Thomas’ bed and raised up the mattress, and I was setting on the bed. I spoke up and I said, ‘Willie Wade, you mean to tell me a man sent you after a gun and didn’t tell you where to find it at?’ and Willie Wade told me — he walked to my door. He say, ‘Yeah, he told me where to find it but I forgot. He told me where to find it at but I forgot,’ and he said, ‘Well, I am going’; * *

John D. Jordan testified that he did some-barbering when he was not doing railroad' work. He stated that when he came home-on the night of November 2, 1963, he no--ticed that the door of his place had been, broken and someone had been in the building. After an inspection, he found that his shotgun, a 12-gauge Winchester pump-gun, and some shotgun shells were missing. This witness identified the gun which had', been introduced in evidence as having been taken from the defendant on the night of" the killing to be the gun taken from his. place on the night of November 2.

There was evidence that after the shooting, the defendant stated that he had taken-the gun from Jordan’s place and had gone-to a levee to fire the gun to see if it would, work; that he then went to the Thomas, place to kill him.

Police officers testified that they were-attracted to the Thomas place by shots.. When they arrived, the defendant was. found behind a parked truck near the-Thomas building. He had the 12-gauge Winchester gun, above mentioned, in his; hands.

A number of witnesses testified that just before the si'Jots were fired they saw Thomas standing in the doorway of his place of business. They heard a shot and saw Thomas fall to his knees; then a second shot was fired. Witnesses testified that Thomas did not have anything in his hands while he was standing in the doorway. When the body of Thomas was searched, a 32-caliber pistol was found in his coat pocket.

After Burgess was arrested, he was heard to say, “I have killed Son Thomas and that is what I wanted to do.”

Defendant did not testify. A number of witnesses testified that the deceased had a reputation of having a rash, turbulent, and violent disposition. There was evidence to the contrary. The time of the shooting was fixed by witnesses for the State and witnesses for the defendant as having been between forty minutes to an hour after Burgess had been ejected from the Thomas premises.

We are of the opinion that the defendant was not entitled to a manslaughter instruction. The record does not contain a shred of evidence to support such an instruction. The difficulty after which defendant was ejected from the Thomas place was of minor nature. Furthermore, sufficient time had elapsed for a cooling off period. Defendant’s own conduct so demonstrated. His calm manner was disclosed by Jerry Thomas’ evidence with reference to the defendant’s looking for a gun. Not being able to find one, he burglarized a barber shop and found a shotgun. Then, he took it to a levee to try it out to be sure it worked. He then went to the Thomas place and without a word being spoken, he shot the deceased who was standing in his doorway. There was more than sufficient time for defendant’s passion to have cooled. See 40 C.J.S. Homicide § 54, pp. 917, 918; State v. Richardson, 340 Mo. 680, 102 S.W. 2d 653, l. c. 657, 658(10, 11); State v. Farris, Mo., 6 S.W.2d 903, 1. c. 905(1, 2); State v. Parker, 358 Mo. 262, 214 S.W.2d 25,1. c. 27(5, 6); State v. Brookshire, Mo., 368 S.W.2d 373,1. c. 384(13,14).

We rule the trial court properly refused to instruct on manslaughter.

We have examined matters which are required to be reviewed by S.Ct. Rule 28.02, V.A.M.R., and find no reversible error therein.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by HENRY J. WESTHUES, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: HOUSER, Commissioner. PER CURIAM.

text:
    Ronald Joseph NOLTE, a Minor, by Paul Johnson, His Next Friend, Appellant, v. Kenneth CHILDRESS, d/b/a Reynolds Gasoline & Chemical Transport Company, and Edward Fred Dixon, Respondents.
    No. 50785.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1965.

      Wendell L. Evans, Jr., and J. W. Grossen-heider, Lebanon, for appellant.
    Karl W. Blanchard, Seiler, Blanchard & Van Fleet, Joplin, for respondents.
   HOUSER, Commissioner.

Action for $25,000 damages for the wrongful death of Harold Nolte, brought by his infant son Ronald Joseph, pro ami,, against Kenneth Childress, d/b/a Reynolds. Gasoline & Chemical Transport Company,, owner, and Edward Dixon, driver, of a. tractor-trailer truck which collided with a Chevrolet automobile in which Harold Nolte was riding. The court directed a verdict for defendants at the close of plaintiff’s case. Plaintiff has appealed from the judgment rendered on the verdict.

Plaintiff relies on two points for reversal of the judgment: (1) that he made a sub-missible case of primary negligence based -on defendants’ failure to stop the truck or to turn the truck to the right onto the •shoulder of the highway; (2) that he made a submissible case under the humanitarian doctrine based on defendants’ failure to stop or swerve.

This was a collision between a westbound 'Chevrolet passenger automobile and an eastbound gasoline truck carrying a load of .gasoline. The Chevrolet was titled in the name of Harold Nolte’s wife, but was being paid for by Nolte. It carried Harold Nolte and one Manuel Barquero. Dixon, who was operating the truck for and on behalf of defendant Childress, was carrying no passengers. The collision occurred at ■8:15 a. m. on January 18, 1961 on Highway 66 in Lawrence County about 6 miles west of Halltown. At that point Highway 66 runs approximately east and west. The events leading up to this casualty occurred •on an incline or hill which crests on the •east and runs down to its low point on the west. The highway consisted of two 9-foot lanes of pavement. On the south side of the pavement there was a 13-foot shoulder made of clay and rock. The shoulder was dry and could be used by traffic. The pavement was dry. Visibility was good.

The truck driver, defendant Dixon, the only survivor of the crash and apparently the only available witness, called to the stand by plaintiff, testified to the following set of facts: Driving the truck east in his right-hand or eastbound lane at a speed of 45 to 55 m. p. h., Dixon reached the bottom of the “ravine” and started up the hill. Approaching him from the east and coming down the hill in their right-hand •or westbound lane were two vehicles, a pickup truck in the lead followed by an automobile. These vehicles were traveling at a speed of 40 to 50 m. p. h. Dixon first saw the Chevrolet approaching from the east as it came over the crest of the hill, a distance of 400 to 450 feet east of his truck. The Chevrolet was then proceeding at a speed of 60 to 75 m. p. h. in its left-hand or eastbound lane — the same lane Dixon’s truck was in. When Dixon first saw the oncoming Chevrolet it was starting to pass the westbound automobile, which was the second of the two other westbound vehicles. The Chevrolet had pulled up about halfway between the rear tires and the back bumper —about halfway up the side of that automobile. There was no other traffic in the eastbound lane. The south shoulder was clear —there were no cars parked along the shoulder. The brakes, horn and steering mechanism of the tractor, and the brakes of the trailer, were in good operating condition. Considering the load on the truck, its speed, the grade and all other factors Dixon in an emergency could have brought the tractor-trailer unit to a complete stop within a distance of 170 to 175 feet after he got his foot on the brake.

When Dixon first saw the Chevrolet he “let off on the fuel” and moved his foot “to the brake” but did not apply the brakes because at that time the Chevrolet swerved and went back into its proper lane of traffic — got “entirely” back into the westbound lane — thus leaving the eastbound lane “entirely” clear. After the Chevrolet swerved back into the westbound lane Dixon did not observe any action on the part of the Chevrolet which indicated any danger. Dixon “went ahead and stepped back down on the fuel, going on.” The next thing that Dixon observed indicating danger was the Chevrolet starting to turn on about a 45-degree angle, heading across the center line. He saw the front fender of the Chevrolet swerve to come out across the yellow line when the vehicles were about 20 to 30 feet apart. From the time Dixon first saw the approaching Chevrolet' until the impact 3 to 5 seconds elapsed. During that time Dixon saw the Chevrolet put on its brakes, twist or come back in the Chevrolet’s right lane and then come out into Dixon’s lane as above described. The truck was then traveling about the same rate of speed it had been traveling. The Chevrolet traveled 200 to 225 feet from the time Dixon first saw it until it twisted back into Dixon’s lane. During that interval the truck traveled 100 to 175 feet. When the Chevrolet came back out into his lane Dixon immediately “flipped the switch” to set the brakes on the trailer and stepped on the truck brakes. He did not have time to do anything else. Dixon’s testimony on whether he swerved to the right was contradictory. Apparently he did not swerve because his left wheels were 6 inches from the center line at the time of impact. After the brakes were applied the truck and Chevrolet collided in the eastbound lane of traffic. The right front fender of the tractor hit the left front fender of the Chevrolet. The truck traveled some 40 feet east, pushing the Chevrolet ahead of it, all four wheels of the truck sliding. Dixon had been watching the Chevrolet at all times after he first saw it. At the time of impact the other two westbound vehicles were passing the truck on Dixon’s left. Barquero was found dead behind the steering wheel of the Chevrolet. Mr. Nolte died as he was being loaded into the ambulance. Nolte had left his home 50 miles north of Chicago the previous evening, driving by himself, headed for California. Mrs. Nolte did not know Barquero or where or why he got in the Chevrolet.

Did plaintiff make a submissible case of primary negligence based on defendant’s failure to stop the truck or turn onto the shoulder?

Plaintiff’s theory as to negligent failure to stop is that when Dixon, traveling at 45-55 m. p. h., first saw the Chevrolet in Dixon’s lane 400-450 feet away from him traveling 60-75 m. p. h'., attempting to pass an automobile following a pickup truck traveling 40-50 m. p. h., Dixon had a duty to apply- the brakes and refrain from accelerating and proceeding because, by the exercise of the highest degree of care,. Dixon could reasonably have foreseen that in slowing down the Chevrolet sufficiently to let the automobile go ahead and in getting-back into the westbound lane the Chevrolet “could not get back into its own lane of travel and stay -there in the next three or four seconds and thereby avoid a head-on collision with Dixon’s truck.”

Plaintiff further theorizes that Dixon’s failure to turn onto the shoulder was negligence, and that both questions are fact questions which should have been submitted to a jury.

The difficulty with plaintiff’s theory on-failure to stop is that there is no evidence to support it. There is no evidence of' any abnormal, erratic or irregular movements or actions of the Chevrolet, or conduct on the part of its driver, either before- or after it fell in behind the other westbound automobile, indicative of its inability-to stay in the westbound lane, once there,, or which would be reasonably calculated to-put Dixon on notice or impose upon him the duty to anticipate that the Chevrolet would or could not stay in the westbound lane. There is no evidence that the Chevrolet was-rocking back and forth or careening from side to side or that it was otherwise out of control so as to be liable to return to the eastbound lane. The only evidence on the point is that the Chevrolet got entirely back into the westbound lane, leaving the eastbound lane clear, and that although Dixon was watching the Chevrolet at all times it was not until the vehicles were 20 to 30 feet apart — too late to do anything —that Dixon observed any action which indicated danger. Disregarding the evidence that Dixon observed no action indicating danger as evidence favorable to defendants, and unfavorable to plaintiff, there is still no evidence upon which plaintiff can rely to substantiate his theory of negligent failure to stop. From the evidence of high speed, without more, we may not jump to the conclusion that the Chevrolet was out of control and liable to swing back into Dixon’s path. That the Chevror let could not get back into its own lane of travel and stay there until defendants’ truck passed may not be inferred from and does not reasonably follow from the facts in evidence. To reach the conclusion suggested by plaintiff a jury would be obliged to engage in speculation, guess and conjecture.

It may be (although not supported by evidence), that if, when the vehicles were 425 to 450 feet apart, Dixon had come to a complete stop within 175 feet, or had turned right onto the shoulder, there would have been no collision, but under the facts in evidence there was no obligation upon Dixon to stop or turn aside at that point when the vehicles were 425 to 450 feet apart. “The driver of a vehicle traveling in a direction opposite to that of a vehicle passing another is required to exercise lawful care (in this state, the highest degree) to avoid collision even though he may have prior claim to the right of way. Ordinarily, he may assume that the driver of the approaching vehicle will obey the rules of the road and return to his own side of the road. 60 C.J.S. Motor Vehicles § 317, p. 733. When, however, in the exercise of the highest degree of care, it becomes or should become apparent that the driver of the passing vehicle is unable to or will not return to his side of the road in time to avoid danger of collision, it then becomes the duty of the driver of the oncoming vehicle to exercise the highest degree of care to avoid collision by slowing, stopping, swerving or other means reasonably available and consistent with his own safety. Nelms v. Bright, Mo., 299 S.W.2d 483, 489-490, and cases therein cited; 60 C.J.S. Motor Vehicles §§ 317, 319, pp. 732, 738.” Probst v. Seyer, Mo.Sup., 353 S.W.2d 798, 804 [7, 8], 91 A.L.R.2d 1252. The corollary to this rule is that where the oncoming passing vehicle returns to his side of the road and thereby eliminates the danger of collision there is no duty on the part of the approaching vehicle to take preventive measures unless and until it becomes apparent or should become apparent, in the exercise of the highest degree of care, that another danger of collision has arisen. Dixon was required only to act upon reasonable appearances. When he saw the Chevrolet approaching on its wrong side of the road he had a right to assume that its driver would obey the rules of the road and return to the proper side of the highway. Nevertheless Dixon moved his foot to the brake and was ready to apply the brakes. Then the Chevrolet returned to its proper lane. The danger of collision in the normal course of events having passed, Dixon was entitled to proceed forward normally until in the exercise of the highest degree of care it became or should have become apparent to Dixon that the oncoming Chevrolet was unable to or would not keep to its side of the highway. This did not become apparent until it was too late to take preventive measures. To require Dixon to have stopped or run off the highway onto the shoulder when the vehicles were 400 to 450 feet apart or after the Chevrolet returned to the westbound lane, under these facts, would be to set up an impractical, unrealistic and unreasonable requirement.

The cases cited by plaintiff, Swain v. Anders, 235 Mo.App. 125, 140 S.W.2d 730; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648; Prince v. Bennett, Mo.Sup., 322 S.W. 2d 886; Karch v. Stewart, Mo.Sup., 315 S.W.2d 131, present factual situations so essentially different from that under review that they do not persuade us to reach any different conclusion. In none of them did plaintiff’s automobile swerve from the wrong lane back into the right lane, remain in the right lane for a time, and then swerve into the wrong lane instantly before the collision. In none of them was the point raised that defendant should have foreseen that plaintiff’s automobile could not get back into its proper lane and stay there.

. Plaintiff did not make a submissible case of primary negligence based upon failure to stop or failure to turn onto the shoulder.

Did plaintiff make a submissible case under the humanitarian doctrine, based on defendants’ failure to stop or swerve?

Plaintiff’s theory is that plaintiff’s decedent was in a position of imminent peril from the moment Dixon first saw the Chevrolet, that is, when the vehicles were 450 feet apart; that at that time Dixon should have recognized the peril and should have known that the Chevrolet would “likely” be unable to return to its own lane of traffic in the next 3 to 5 seconds; that the Chevrolet traveled only 190 feet thereafter until it was struck, whereas the truck traveled 260 feet, within which Dixon could have stopped in 170 to 175 feet or swerved to the right onto the shoulder and thereby have avoided the collision, but that he failed to do so.

The basic requirement under the humanitarian rule is that plaintiff be in a position of imminent peril. The difficulty with plaintiff’s theory is that plaintiff’s decedent was not in a position of imminent peril at the time plaintiff claims, i. e., at the time the two vehicles were 400 to 450 feet apart. While it is true that at that time they were headed toward each other in the same traffic lane and that they were momentarily bent on a collision course, it is also true that they were then so far apart that the danger of collision was not certain, immediately impending, and admitting of no time for deliberation before the impending calamity. That the danger of collision on that course was contingent and uncertain, remote and avoidable is made manifest and conclusively demonstrated by the conceded fact that the driver of the Chevrolet thereafter slowed down and moved from the eastbound into the westbound lane behind the westbound automobile. In that position there was no danger of collision in the eastbound lane. The driver of the Chevrolet had time to accomplish these things while the two vehicles were still separated by several seconds in time and a considerable distance in feet. As urged by defendants, “the appearance of peril dissipated” when the Chevrolet slowed and returned to its side of the highway. There is no evidence to support any theory that might be advanced that plaintiff’s decedent was in a position of imminent peril at any time after the Chevrolet returned to the westbound lane and before it commenced to turn at a 45-degree angle across the center line into the eastbound lane ... no evidence that during this time the Chevrolet was skidding, sliding, careening, weaving back and forth, or otherwise giving any appearance of being out of control, or indicating that it might momentarily return to the eastbound lane. It was not until the Chevrolet commenced to cross the center line— when the two vehicles were only 20 or 30 feet apart, traveling at a combined speed approximating 90 miles an hour — that plaintiff’s decedent came into a position of imminent peril. Another constitutive element of a claim under the humanitarian rule is that the defendant have the present ability with the means at hand to avert the impending injury. West v. St. Louis-San Francisco Ry. Co., Mo.Sup., 295 S.W.2d 48, 52 [5], Concededly it was then too late for effective preventive measures on Dixon’s part. Plaintiff does not contend that Dixon could then have avoided the fatal collision.

Plaintiff did not make a submissible case under the humanitarian doctrine.

The court properly directed a verdict for defendants. The judgment should be affirmed and it is so ordered.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

HYDE, P. J., and HOLMAN and FINCH, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Jesse BESS, Jr., Appellant.
    No. 50554.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1965.
    Thomas F. Eagleton, Atty. Gen., Jim DeNeen, Asst. Atty. Gen., Jefferson City, for respondent.
   HENRY J. WESTHUES, Special Commissioner.

Jesse Bess, Jr., was tried before a jury and convicted in the Circuit Court of Jackson County, Missouri, on a charge of robbery in the first degree. The information alleged that Bess had previously been convicted of a crime. The trial court held a hearing and found the allegation to be true. The court fixed punishment at seven years’ imprisonment. A motion for new trial was overruled.

In the motion for new trial, it was alleged that the trial court erred in not giving an instruction on alibi. This is the only complaint stated. The record shows that Bess was represented throughout the trial by attorney Robert S. Sundeen. However, no brief was filed in this Court on defendant’s behalf.

The crime was alleged to have been committed on June S, 1963, and the trial was had on October 8 and 9, 1963. Defendant was granted thirty days in which to file a motion for new trial. It was filed on November IS, 1963, and was overruled on December 19, 1963, and sentence was passed. Notice of appeal was filed on the same day and defendant was permitted to appeal as a poor person.

The evidence justifies the following statement of what occurred with reference to the alleged offense. Edward L. Ross, the victim of the robbery, had received about $594 as compensation for an injury he had sustained. On the evening of June 4, 1963, he went to a tavern with about $550 in his billfold. He sat at a table, ordered a drink, and was joined by the defendant Jesse Bess, Jr., and Loviss Todd. Ross paid for a number of drinks for both Bess and Todd. At about midnight, Ross left the tavern and went to a laundromat to get some clothes he had placed in a dryer. Ross testified that when he reached in the dryer someone struck him over the head. His version of what occurred was as follows:

“A * * * I opened up the second dryer on the right side and put my head in there. I felt a terrific blow on the back of the right ear, and then I felt being dragged to the rear of the laundromat where the drain is in back of the dryers, and at that time I was being kicked and hit numerous times. I was knocked straight down this way (indicating), and I turned because I was being kicked on the side of the head. As I turned on my back I saw Jesse and Loviss Todd, and when I was on my side Loviss Todd was kicking me with the heel of his shoe, and he said T will kill the bastard’. Jesse said, T got it’, meaning my wallet, and I felt a hand pulling the wallet out, and Loviss was still kicking, trying to put my eyes out. At that time Jesse said T got it’, I heard feet scrambling. I got up and I recognized both of them. I recognized when I was on my back and Loviss was trying to put my eyes ■out with his heel so I wouldn’t recognize then because I hadn’t seen who was hitting me in the back of the head because I was knocked straight forward. As soon as they left I got up immediately and ran after them hollering, hollering at Jesse and Loviss, and there was a car driving south about a half a block, and a cab driver asked me what was the matter. I was sort of hysterical, and I told him to call the cops, I had been robbed. He called the cops, and the cops came.”

Defendant Jesse Bess, Jr., was arrested later that night by the police. Ross was treated at a hospital and when taken to a police station he identified Bess as the person who had robbed him. At the trial Ross testified that it was defendant and Loviss Todd who had committed the robbery.

When Bess was arrested the police found about $47 in “paper money” on his person. Later, another search was made and the police found $340 in paper money tucked in the fly of his trousers. The denominations of these bills corresponded to the description given to the police by Ross. Bess had denied knowing anything about the robbery until the $340 was found. Thereafter, he made an explanation of the manner in which he came into possession of the money. Bess did not testify at the trial. A statement taken by the police, wherein Bess stated how he obtained the money, was introduced in evidence by the defendant. The principal portion of this statement reads as follows:

“ ‘Q Will you tell me in your own words just what you know about this robbery ?
“‘A Yes. About 12:30 A.M. on 6-5-63, I was standing in front of the drug store located on the northwest corner of 27th and Troost when I saw Mr. Ross leave the Miami Tavern, located on the southwest corner of 27th and Troost, and walk south on Troost St. on the west side of the street. Earlier in the evening I had met Mr. Ross in the Miami Tavern and that’s how I knew him. When he started down the street two colored men, unknown to me, followed him. I saw Mr. Ross go into a doorway a few doors down the street from the Tavern, and the two colored men followed him inside. I started walking down that way and as I approached the door where he entered I noticed it was a laundromat. As I came even with the door to the laundromat the two colored men ran out the door and Mr. Ross ran out behind them. Mr. Ross was yelling something, but I couldn’t understand what he was saying. As Mr. Ross came out the door, I saw his billfold hit the sidewalk. I picked up the billfold and ran across the street and down to 27th St. and over to Forest. Mr. Ross was still chasing the two colored men south on Troost. When I got to Forest I stopped and opened the billfold and took all the money out and threw the billfold away. I walked back to 26th and Troost and caught a cab and went to 29th and Prospect to Bob’s cafe. I then counted the money I had taken from Mr. Ross’ billfold and found that I had $340. I caught another cab and went home and changed shirts and then went to 12th St. I stayed on 12th St. a short time and then went back to 26th & Troost to Conway’s cafe. A short time after I arrived at Conway’s cafe I was arrested by Det. Young.
“ ‘Q Jesse, what happened to the $340.00?
“ ‘A I hid it in the fly of my trousers, and about 3:00 a. m. on 6-6-63, I was brought down from the jail by Det. DeGraffenreid and Young to the interrogation booth on the 2nd floor, and searched, and Det. Young found the $340.00.’ ”

Defendant has not questioned the sufficiency of the evidence to sustain his conviction and it is apparent that the evidence presented a question of fact for a jury to decide. However, the defendant urged in his motion for new trial that the trial court erred in not giving an instruction on alibi. In his motion, it is stated that .“The Court erred in failing to give an alibi instruction to the jury. A statement given by the defendant to the police was read in open Court establishing an alibi on the part of the defendant.”

Defendant relies on the statement quoted above as the sole basis to authorize an alibi instruction. It may be noted that in the statement the defendant placed himself at the scene of the crime at the time and during its commission. Certainly, defendant was not entitle to an alibi instruction. This is for the reason that the evidence did not support an alibi. See 23A C.J.S. Criminal Law § 1203, p. 524, and State v. McLane, Mo., 55 S.W.2d 956, 1. c. 958(3), and authorities there cited.

We have examined matters required to be reviewed under S.Ct. Rule 28.02, V.A.M.R., and find no reversible error therein.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by WESTHUES, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: CULLEN, Commissioner.

text:
    Francis Jennings THOMAS et al., Appellants, v. Joe E. MELLEN, d/b/a Hertz Rent-A-Car, Appellee.
    Court of Appeals of Kentucky.
    Feb. 19, 1965.
    Thomas D. Shumate, Shumate, Shumate & Flaherty, Richmond, for appellants.
    George T. Ross, Steve Robbins, Richmond, Frank G. Gilliam, Lexington, for appellee.
   CULLEN, Commissioner.

Francis Thomas and his wife were injured and their automobile was damaged in a collision with an automobile driven by Horace Anderson. The latter automobile had been rented by Anderson’s brother-in-law, William Caldwell, from Joe E. Mellen, who operated a rent-a-car agency. The Thomases and their collision insurer sued Anderson, Caldwell and Mellen. Recovery was had against Anderson and Caldwell but a verdict was directed for Mellen. The plaintiffs have appealed from the judgment releasing Mellen.

Mellen carried insurance which covered the renter of any of his automobiles, any member of the renter’s immediate family, and any regular employe of the renter. Anderson did not fall in either of the latter two categories. (He was a gratuitous agent of Caldwell’s, attempting to sell some fishing tackle for him.)

The appellants’ argument seems to be that under the statutes regulating rent-a-car agencies Mellen was required to carry insurance covering anyone driving one of his rented cars with the permission of the renter ; and that since Mellen did not carry such insurance he must himself be charged with the liability of an insurer.

We find it unnecessary to consider whether the effect of a failure by Mellen to carry required insurance could be to impose upon him the liability of an insurer, because as we interpret the applicable statutes they do not require the carrying of insurance the coverage of which extends to anyone driving with the permission of the renter.

KRS 281.655 requires rent-a-car agencies to carry insurance. It provides, in part:

“ * * * All bonds or policies required herein must be issued in the name of the holder of the certificate or permit; provided, however, and except as, otherwise provided herein, such bond or insurance policy in the case of a U- , Drive-It * * * shall meet the requirements provided for in KRS 187.-490. * * *

The statute referred' to, 'KRS 187.49.0, calls for an “owner’s” policy of insurance which must “* * * insure the person named therein and any other person, as insured, using any such motor vehicle * * with the express or implied permission of such named insured * * KRS 187.290 defines “owner” as the person who holds the legal title to the motor vehicle, or who is in possession under a conditional sale or lease-purchase contract.

We think it is clear that the operator of the rent-a-car agency is the “owner” under, these statutes, and that the insurance is required only to cover him and anyone 'driving the vehicle with his consent.

The rental contract in the instant case expressly restricted use of the automobile to its being driven by the renter, a member of .his immediate family, or a regular employe .of the renter. Anderson, not being in any of these categories, did not have express or implied permission of Mellen to drive the car, and therefore was not required to be insured.

The appellants maintain that Mellen had a duty to point out to Caldwell (the renter) the limitations in the rental contract as to who was to be permitted to drive the automobile, and the corresponding limitations on the insurance coverage. However, no valid basis for such a duty is suggested, and none occurs to us.

It is our opinion that neither under the statutes nor under any theory of the law of contracts could Mellen be held liable.

The appellants make a further argument, that the jury would have been entitled to find Mellen liable on a negligence ' theory, because there was evidence that the speedometer on the rented car was defective. It is sufficient to say that the evidence as to the circumstances of the accident would not | warrant a finding that the defective speed-"ótíieter (if it was defective) played any causative part ‘in the accident.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Douglas GEORGE et al., Appellees.
    Court of Appeals of Kentucky.
    March 12, 1965.
    As Modified March 26, 1965.
    Robert F. Matthews, Atty. Gen., Frankfort, William A. Lamkin, Jr., Asst. Atty, Gen., H. C. Smith, Department of Highways, Frankfort, Walter Mobley, Department of Highways, Flemingsburg, for appellant.
    P. H. Vincent, A. W. Mann, Thomas E. Phipps, John C. Clarke, Ashland, for appel-lees.
   MONTGOMERY, Judge.

This is a condemnation action by the Commonwealth to secure right of way for the construction of Interstate Highway 64. The Commonwealth appeals from a judgment awarding $51,000 to the landowners. It is necessary to consider only the first ground urged by the Commonwealth on appeal, which is that the verdict is excessive.

The land taken is from the 135-acre farm of appellees Douglas George and his wife located 2.2 miles from Cannonsburg, southwest of Ashland. The Ellington Run Road extends along most of the eastern boundary of the farm, severing the southeast portion containing less than twenty acres. The farm consists of bottom land, some of which is cultivated, pasture land, and hill land. One part of the hill land bears strip mine scars. The improvements consist of a main dwelling, a barn, two smaller dwellings, and two ponds. The farm has been used principally for grazing of livestock.

There is No. 7 and 8 coal under the surface but it does not appear to have been profitably mined recently. Appellees Ross and Seaton claim to have a coal lease on the land. The lease permitted mine openings only in a designated area and prohibited strip mining. It is the subject of other litigation concerning its termination.

The jury fixed the before value of the property at $76,000 and the after value at $25,000, from which the court entered a judgment of $51,000 as compensation for the land taken and damages. Included in the approximately thirty acres taken were six acres of bottom land and twenty-four acres of hill land, part of which was severed and rendered inaccessible. The hill land is referred to as coal land.

Considering the property taken and the claims of damage, the Court has concluded that the verdict is excessive. The property for which the after value was fixed at $25,000 included the major improvements, more hill or coal land than had been taken, more bottom land than had been taken, more coal than had been taken, and better access than there had been previously. A frontage road was provided along the north boundary of the property. In substance, the award of $51,000 for about thirty acres of the farm plus incidental damages is more than twice the amount of the $25,000 fixed as the after value of the remaining 105 acres, with more and better improvements and with higher proportions of coal and of bottom and hill lands with better access. The verdict is demonstrably erroneous. Pierson v. Commonwealth, Ky., 350 S.W.2d 487.

The first blush reaction, so often used in determining the adequacy of verdicts, deepens with further consideration in this case. It is unnecessary to repeat the oft enunciated principles governing the setting aside of a verdict for excessiveness. Commonwealth v. Gearhart, Ky., 383 S.W.2d 922; Commonwealth v. Conatser, Ky., 347 S.W.2d 515; Commonwealth v. Rankin, Ky., 346 S.W.2d 714, and cases cited therein. The Court is just as duty bound to reverse a judgment for excessiveness as it is to uphold a proper verdict. Here, duty compels a reversal.

Appellees have cited several cases to sustain the judgment. They are not considered as applicable, primarily because each condemnation case must stand on its own peculiar facts when the excessiveness of the judgment is considered. Salt River Rural Electric Coop. Corp. v. Thurman, Ky., 275 S.W.2d 780. The present case is a gross example of a violation of the rule that the basic measure of damages is the difference in the fair market value of the lands condemned before and after the taking. Gulf Interstate Gas Company v. Garvin, Ky., 368 S.W.2d 309.

Other questions raised are reserved, including the unanswered attacks on the testimony of Douglas George, the landowner, and of Charles Allan Reed for failure to give a proper basis for their testimony. George fixed the before value at $150,000, based on what the property was worth to him as an unwilling seller. See Commonwealth v. Darch, Ky., 374 S.W.2d 490; Commonwealth v. Tyree, Ky., 365 S.W.2d 472, and cases cited therein.

Judgment reversed.


author: MOREMEN, Chief Justice.

text:
    George KING, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.
    George King, Jr., pro se.
    Robert Matthews, Atty. Gen., Frankfort, Martin Glazer, Asst. Atty. Gen., for ap-pellee.
   MOREMEN, Chief Justice.

In April 1962, George King, Jr. was convicted of voluntary manslaughter and sentenced to imprisonment for twenty-one years. He did not prosecute an appeal. In 1963, he filed a motion to vacate the judgment under RCr 11.42. He did not perfect an appeal from the order overruling that motion. In 1964, he filed a second motion to vacate the judgment and this motion also was overruled. He has appealed from that judgment.

In the motion filed in the circuit court appellant set forth three grounds which he insisted were sufficient reasons to vacate the original judgment of conviction. They were: (1) that counsel was incompetent and failed to protect his substantial rights as guaranteed by the Constitution of the United States and of the Commonwealth of Kentucky. He averred that his counsel “refused to accept the movant’s requests and suggestions during the presentation of the defense and during the trial by refusing to enter timely objections to preserve the errors of the Court; by the refusal to call witnesses to testify in behalf of the movant; by withdrawing immediately after the verdict was returned; by failing to advise the movant of his rights to a motion for a new trial; the right to appeal, etc. and further refused to put the actual facts before the Court, showing that the movant had no other choice but to inflict bodily harm by shooting the deceased as he the movant had been cut and severely injured by the deceased, and ran the movant to his car, trying to kill the movant, thus the movant was forced to shoot the deceased to save his own life; these facts and evidence were denied to the movant by counsel refusing to put them forth.” (2) That the trial court erred in asking appellant and his counsel, in the presence of the jury, if they would agree to the separation of the jury. (3) He alleged “Denial of due process of the law, and equal protection when the trial court denied the movant access to the trial transcript of his records; by denying him the right to a hearing on his motion to vacate judgment that was denied November 21, 1963. The U. S. Supreme Court recently ruled a hearing on RCr 11.42 was mandatory, movant was further denied due process of law when he was denied the right to appeal to the Court of Appeals under RCr 12.52. This notice of appeal was duly mailed on November 23, 1963, and received November 29, 1963, and upon ’December 4, 1963, movant inquired if he had been granted the right to appeal to which he received Notice on December 9, 1963 ;that his Notice of Appeal had been overruled by. the Fayette Circuit Clerk.” ’

Since January 1, 1963, when RCr 11.42 became effective, the Circuit Courts and this-.-Court have received a great many cases in which inmates of the penitentiary have sought to have set aside the judgments under which they were convicted. A major portion of these cases were brought under misapprehension of the purpose and nature of the remedy offered by the new rule and we believe a detailed discussion may be of some value.

RCr 11.42 is patterned very closely to the’ federal rule as embodied in 28 U.S.Code, § 2255, and federal courts, after its adoption, experienced the same spate of improperly conceived complaints that we have. The Hon. Alexander Holtzoff, Judge of the' United States District Court, District of, Columbia, in an . elaborate and well docu-: mented opinion (United States v. Edwards, D.C., 152 F.Supp. 179, Affirmed, 103 U.S.App.D.C. 152, 256 F.2d 707, Certiorari denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958)), pointed out that § 2255 of Title 28 of the U. S. Code was enacted at. the suggestion of the Judicial Conference of the United States in order to correct, evils which had developed from the fact' that petitions for writs of habeas corpus were flooding the various courts of the United States and that, although many of the petitions proved entirely lacking in’ merit, each one of them required careful" consideration, thus imposing an unbelievably heavy burden on the district judges. That, however, was not the important reason. The opinion said this:

' “What was much more important,this unforeseen development led to the-strange outcome of one district judge" passing upon the validity of proóeed-ings before another district judge, sometimes located at a distant point,, on evidence dehors the record. One Court of Appeals characterized this practice as 'unseemly’. There was -at still worse feature lurking in this prdq cedure. Since evidence dehors the record was taken at the hearing, the trial judge at times became a witness, either by deposition or otherwise. Thus an intolerable situation developed of having the testimony of the trial judge and the word of a convicted felon pitted against each other. This result was manifestly incompatible with the dignity of the Federal judiciary and did not enhance respect for the courts on the part of evildoers. Thus, the great writ of habeas corpus became temporarily distorted to that extent and its use was deflected from its historic lofty objective for the time being.”

The opinion points out that § 2255 does not broaden the right of attack or enlarge the scope of review theretofore permitted by habeas corpus, that the motion is not a substitute for appeal or for a motion for a new trial and does not permit a review of alleged errors at the trial, and may be invoked only in situations in which a writ of habeas corpus had been previously the appropriate remedy. This Court has' adopted the same rule. (See Tipton v. Commonwealth, Ky., 376 S.W.2d 290; Crockrell v. Warren, Judge, Ky., 383 S.W.2d 377.) The opinion in the Edwards case, while not attempting to be exhaustive, sets forth certain types of contention which may not be entertained or considered on a motion under § 2255. Each item was documented by other federal cases. They were:

“That the evidence at the trial was ■ insufficient to justify a conviction;
“That the Government knowingly used perjured testimony, unless this allegation is supported by particulars showing the alleged perjury in detail, and the sources of the Government’s alleged knowledge;
“That although the defendant pleaded guilty, he was in fact not guilty;
“That although the defendant was represented by counsel, he entered his plea of guilty under a misapprehension;
“That the indictment was insufficient or defective;
“That a confession admitted at the trial had been obtained as a result of an illegal detention;
“That there were errors in rulings on admissibility of evidence at the trial;
“That there were errors in the court’s instructions to the jury;
“That the defendant was illegally arrested;
“That evidence introduced at the trial was obtained by an unlawful search and seizure in violation of the Fourth Amendment ;
“That the defendant was illegally entrapped into committing the offense;
“That newly discovered evidence may establish the defendant’s innocence;
“That a motion for a judgment of acquittal was erroneously denied;
“That the prosecuting attorney used extreme and intemperate language in his argument to the jury;
“That prejudicial publicity preceded or surrounded the trial;
“That contrary to the defendant’s instructions his counsel failed to appeal from the judgment of conviction;
“That the defendant was insane at the time the crime was committed.”

We will not attempt in like manner to set out various cases where it was held that a motion under RCr 11.42 would not be entertained, but a few of our recent cases where the application of RCr 11.42 was held to be inappropriate are:

Nichols v. Thomas, Ky., 382 S.W.2d 871. That the foreman of the grand jury did not sign the indictment;
Crochrell v. Warren, Ky., 383 S.W. 2d 377. That the circuit court had overruled a similar motion under RCr 11.42;
Perkins v. Commonwealth, Ky., 383 S.W.2d 916. That evidence had been newly discovered;
Hobbs v. Stivers, Ky., 385 S.W.2d 76. That the court sentenced defendant, without jury, to life imprisonment upon his guilty plea of murder.
Warner v. Commonwealth, Ky., 385 S.W.2d 77. That there were defects in the indictment;
Warner v. Commonwealth, Ky., 385 S.W.2d 62; That the court had requested defense counsel within hearing of jury whether he had objection to separation of the jury.
Warner v. Commonwealth, 385 S.W.2d 62. That there was an insufficiency of proof of venue.
Langdon v. Thomas, Ky., 384 S.W.2d 508. That the instructions were erroneous.

When we return to the facts and the decision in the instant case and consideration of appellant’s first contention, we find that the record does not disclose that defense counsel was appointed by the court; on the other hand, it is asserted in appellant’s brief that counsel who represented him at his trial was paid for his services which indicates that the counsel was chosen by appellant; in any event, lacking positive allegation, it is fair to make such an assumption.

Returning again to the federal cases, we find that in Simeone v. Humphrey, D.C., 114 F.Supp. 573, it was said: “No constitutional question is involved in his allegation of incompetency of counsel since such counsel was employed by him.” The question of self-employed counsel was thoroughly discussed in United States ex rel. Darcy v. Handy, Warden, et al., 3 Cir., 203 F.2d 407, where it was said:

“There is, however, as Judge Hux-man pointed out in Hudspeth, Warden v. McDonald, 10 Cir., 1941, 120 F.2d 962, 968, ‘a vast difference between lacking the effective assistance of competent counsel and being denied the right to have the effective assistance of competent counsel.’ It is the latter only for which the state is responsible, the former being normally the sole responsibility of the defendant who selected his counsel. And so where, as in the case now before us, a defendant in a criminal case has retained counsel of his own choice to represent him it is settled by an overwhelming weight of authority that the commission by his counsel of what may retrospectively appear to be errors of judgment in the conduct of the defense does not constitute a denial of due process chargeable to the state.”

We find nothing in the allegations made by appellant that indicates the circumstances of the representation were such as to shock the conscience of the court and to render the proceedings a farce and a mockery of justice. Rice v. Davis, Ky., 366 S.W.2d 153; Rivera v. United States, 318 F.2d 606 (9th Cir.). The allegations seem to indicate that the supposed incompetent representation was largely the result of counsel’s failure to follow the suggestions of appellant. However, as we have indicated, appellant has failed to show that counsel was appointed by the court and under the cases cited, he is now es-topped to complain.

Appellant’s next contention, that the judgment should be vacated because the court asked him, in the presence of the jury, whether he objected to a separation of the jury, was answered in Warner v. Commonwealth, Ky., 385 S.W.2d 62, adversely.

On this appeal, appellant finally complains that upon a former motion to vacate judgment under RCr 11.42, overruled November 21, 1963, he was denied the right to appeal to the Court of Appeals. The circuit court found that the record does not disclose that he filed a notice of appeal in that case; neither did the clerk of the court attempt to overrule it. A motion under RCr 11.42 will not lie when statements alleged therein are contradicted by. the record.

"We are of opinion that the motion to ¡vacate filed in this case did not state suffi■cient cause for granting a hearing or relief under RCr 11.42.

■Judgment affirmed.


author: MILLIKEN, Judge.

text:
    Woodrow MATNEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.
    L. D. May, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., Frank. D. Berry, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

The appellant, Woodrow Matney, was indicted for murder, malicious ' striking and wounding with intent to kill, and for carrying concealed a deadly weapon, a pistol, and an agreed order was entered consolidating all three of the indictments for trial. He was acquitted of the two more serious charges, but was convicted of carrying concealed a deadly weapon, a pistol, and was sentenced to five years in the penitentiary. In appealing the judgment of conviction he contends there was not sufficient evidence presented to convict him and .that his conviction was the result of passion and prejudice.

As could be expected, the bulk of the testimony pertained to the charge of murder and the charge of malicious striking with intent to kill. The tragedy occurred during the hiring of men by a contractor for road work and an altercation which arose at the time. According to the appellant, he and his friend, Clyde Spence were in a trailer which was being used as an employment office and were attacked by several men of a rival union, and the appellant whipped out his pistol, the gun discharged accidentally killing Joe Coleman, one of the attackers. The appellant said he had been tearing down a building on his place and had stuck the pistol in his pocket for protection against copperhead snakes which had killed one of his dogs in that area, and that he forgot he had the gun when Spence picked him up to have him help sign up the men for the road work. It was the appellant’s contention the pistol was visible.

Many witnesses testified when they saw appellant they saw no pistol on him that morning. Two witnesses said they saw the pistol hanging out of Matney’s pocket. Apparently the only armed men were Spence and Matney and Spence said he did not know Matney had a pistol until Matney used it on Coleman.

The appellant argues that he was at the trailer twice on that morning and the first time he had no gun with him, so it was obvious that no gun was seen on that occasion. He insists that the Commonwealth failed to establish on which occasion its witnesses saw no gun on the appellant and, as a consequence, it must be concluded that it was at the time of his first visit. He claims that he procured the pistol after his first trip to the trailer, that he procured it for protection against copperheads which might have been lurking under the building he was wrecking, that he forgot he- had the gun on his second visit to the trailer, and that, in any event, it was .not concealed but visible.

We think there clearly was enough evidence to sustain the conviction— that it clearly was a case .for a jury to determine whom and how much to believe. Nor are we impressed with the argument that the jury felt compelled to convict on this charge after clearing appellant of the charge of murder and the charge of striking with intent to kill. A conviction on the least charge of a trio of charges is no evidence of passion and prejudice.

In his final argument, the Commonwealth’s Attorney referred to the deceased, Coleman, by saying “He (Coleman) probably ate his breakfast and told his good wife goodby for the last time,” and the appellant asserts the remark was highly prejudicial to him. When he objected to the remark, the trial court sustained the objection, but did not admonish the jury to not consider it. Counsel requested no such admonition. Sustaining the objection was' sufficient to avoid serious injury to the defendant from this particular remark. Taylor v. Commonwealth, 274 Ky. 702, 120 S.W.2d 228.

The judgment is affirmed.


text:
    PIERSON-TRAPP COMPANY, Appellant, v. Julian KNIPPENBERG et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.

      Robin Griffin, Miller, Griffin & Marks, Lexington, for appellant.
    Armand Angelucci, Lexington, for ap-pellees.
   MONTGOMERY, Judge.

Upon consideration of a petition for a zone change, the vote of the membership of the City-County Planning Commission of Lexington-Fayette County, Kentucky, was recorded as follows: In favor, members Cook, Jefferson, Bryan, Benton, and Knippenberg; opposed, members Llewellyn and Webb. Members Rogers and Lagrew were present but stated that they abstained. Member McGoodwin was not present. In an appropriate proceeding in the circuit court, it was adjudged that the vote did not meet the requirement of KRS 100.420 for a majority vote. Pierson-Trapp Company, applicant for the zone change, appeals and contends that the abstaining votes should have been counted as affirmative votes, thus giving the petitioner the majority required by KRS 100.420.

The rule is that when a quorum of a governing body is present those members who are present and do not vote will be considered as acquiescing with the majority. Morton v. Jungerman, 89 Ky. 505, 12 S.W. 944; Ray v. Armstrong, 140 Ky. 800, 131 S.W. 1039; Lawrence County v. Lawrence Fiscal Court, 191 Ky. 45, 229 S.W. 139; Montgomery v. Claybrooks, 213 Ky. 493, 281. S.W. 469; Hyden v. Tarter, 302 Ky. 184, 194 S.W.2d 174. By application of the rule seven of the ten votes should have been considered as. favorable to applicant’s petition. This point was not decided in Craft v. Hall, Ky., 275 S.W.2d 410.

The appellees have failed to file a brief. The appellant’s statement of facts and issues is accepted as correct, and its brief reasonably appears to sustain a reversal of the judgment. RCA 1.260(c) (2 & 3).

Judgment reversed.


author: HILL, Judge.

text:
    Ed WRIGHT, Appellant, v. Clayton RENAKER, Sheriff of Oldham County, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.

      J. C. McMurtry, Gallatin, Tenn., for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for .appellee.
   HILL, Judge.

Appellant filed petition for writ of habeas corpus. The circuit court declined to grant "the relief sought and dismissed the petition. This is an appeal from that judgment.

Only questions of law are involved on this appeal. The parties agree the facts are substantially as follows:

On October 12, 1964, appellant was released from Kentucky State Reformatory at LaGrange after serving eighteen months of •a two-year sentence for forgery committed in Monroe County, Kentucky. He was immediately arrested in Oldham County as a fugitive from justice, pursuant to KRS 440.-280, to be held for the State of Tennessee on a charge of murder alleged to have been committed in Clay County, Tennessee, in November, 1962. At the time he was returned to Kentucky he was free on bond in the murder case then pending in Clay County, Tennessee. He was returned to Kentucky under the customary extradition procedure without his will or consent.

The appellant urges two grounds for reversal. They are:

(1) The State of Tennessee waived its right to try him for murder by honoring extradition to Kentucky without his consent; and
(2) He was not afforded a “speedy trial,” guaranteed by the Sixth Amendment of the Constitution of the United States, and Section 9, Article 1 of the Constitution of the State of Tennessee.

These two grounds present another question, and that is, shall the courts of Kentucky or Tennessee determine the matter? The answer to this question disposes of this appeal. That answer is found in Crady v. Cranfill, Ky., 371 S.W.2d 640, where, in a similar situation, this Court said:

“But as between this state and the State of South Carolina, it seems obvious that South Carolina’s interest in these particular prisoners is paramount to ours, and for that reason it would be inappropriate and contrary to sound policy for the courts of this state to arrogate to themselves the prerogative of declaring that South Carolina has forfeited the right to enforce its laws against them. In short, we hold that the privilege of determining whether South Carolina has lost that right should rest exclusively with the courts of that state. This result is, we believe, consistent with the spirit of, if not literally required by, that section of the interstate compact (Article III, KRS 439.560) providing that the decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state. See also Jeffers v. State, 217 Ga. 740, 124 S.E.2d 753 (1926).” Also Brewster v. Luby, Ky., 380 S.W.2d 261.

On the authority of this established'rule the judgment is affirmed.