author: NORTHCUTT, Justice.

text:
    Jerome Clinton FRASIER et al., Appellants, v. Joe Wayne PIERCE et al., Appellees.
    No. 7553.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 27, 1965.
    Rehearing Denied Jan. 24, 1966.

      A. W. Salyars, Lubbock, for appellants.
    Crenshaw, Dupree & Milam, Lubbock, for appellees.
   NORTHCUTT, Justice.

This is a common-law damage suit brought by Jerome Clinton Frasier and Homer Virgil Frasier, widow and father respectively of Homer B. Frasier, deceased, against Joe Wayne Pierce and Peoples Ice Company. International Service Insurance Company intervened seeking recovery of benefits paid by such company under a policy of workman’s compensation insurance covering the deceased.

Homer B. Frasier was struck by a truck driven by Joe Wayne Pierce and owned by Peoples Ice Company while walking across Avenue Q in the City of Lubbock in approximately the middle of the block. The accident occurred on Saturday afternoon. It is undisputed that Joe Wayne Pierce was an employee of Peoples Ice Company at the time of the accident in question and was in the course and scope of his employment.

The case was tried before a jury and submitted on special issues in response to which the jury found both defendant Pierce and the deceased Frasier guilty of negligence-which a proximate cause of the accident. The Jury found that Pierce did not fail to keep a proper lookout and was not driving at an excessive rate of speed but that he did prior to the collision in question drive his vehicle from the inside to the outside lane which was -negligence and a proximate cause of the collision. The jury found that Homer Frasier failed to keep a proper lookout and that such failure was a proximate cause of the accident in question. The jury further found that the crossing by Frasier at a place not within a marked crosswalk and not within an intersection was negligence and that such negligence was a proximate cause of the accident. In response -to the damage issues the jury found a total of $36,444.45. Judgment was granted upon the verdict in favor of the defendant that the plaintiffs recover nothing. From that judgment appellants perfected this appeal.

By appellants’ first point of error it is contended the court erred in refusing to submit to the jury appellants’ requested special issues on the liability of appellees under the doctrine of discovered peril. The accident in question occurred on Avenue Q between 15th and-16th-Streets in the City of Lubbock at about 3:00 o’clock in the afternoon on Saturday, January 4, 1964. Avenue Q is one of the main streets in Lubbock and runs in a north-south direction. The avenue has two lanes for northbound traffic and two lanes for southbound traffic and a middle turn lane. Traffic control lights were located both at the intersections of 15th and 16th Streets and A.venue Q. It is undisputed that Mr. Fra-sier was struck while going east while crossing Avenue Q some place between 15th and 16th Streets at approximately in the middle of the block. The defendant Pierce was traveling north on Avenue Q when the accident occurred. Mr. Pierce testified that when he first saw Mr. Fra-sier he was right in front of the center of appellee’s truck approximately 17 to 18 feet away and as soon as he saw Frasier he threw on his brakes and pulled to the left trying to miss Frasier. A Mr. Simmons who was driving behind the Pierce truck and witnessed the accident, testified the truck swerved to the left just before the accident. Mr. Pope, a witness to the accident, testified that the pickup truck stopped almost instantaneously with the impact. There is no evidence' in this record that Pierce ever saw Frasier until he was within 17 or 18 feet from him. In order for the plaintiffs to bring this case within the doctrine of discovered peril it was necessary for plaintiffs to prove that the defendant Pierce actually discovered and realized Frasier’s perilous position in time to have avoided the collision by the exercise of ordinary care in the use of all means at his command. Texas & N. O. Ry. Co. v. Hart, 163 Tex 450, 356 S.W.2d 901 and cases there cited; Texas & N. O. Ry. Co. v. Grace, 144 Tex. 71, 188 S.W.2d 378; Panhandle & S. F. Ry. Co. v. Napier, 135 Tex. 314, 143 S.W.2d 754.

In the case of Safeway Stores, Inc. v. White, 162 Tex. 473, 348 S.W.2d 162, it is stated:

“The ‘could have’ or ‘should have’ standard for measuring the proof required to raise the discovery issue has never been recognized by this Court and will not be adopted now. Actual discovery is an essential element of the doctrine of discovered peril as applied in Texas. If the rule were otherwise, a plaintiff could recover notwithstanding his own contributory negligence by proving that the defendant was guilty of nothing more than primary negligence in failing to discover his peril. The trier of fact is not required to accept the testimony of the defendant or his agent, and discovery may be established by circumstantial evidence. Where there is no direct evidence raising the issue, however, the plaintiff must prove facts and circumstances from which it can fairly be inferred that the defendant did actually become aware of the peril.”

See also Schoellmann v. Ammann, Tex.Civ.App., 352 S.W.2d 920 (N.R.E.).

We are unable to see where there were any facts or circumstances proven here from which it could fairly be inferred that the defendant Pierce did actually become aware of the peril in time to avoid the accident here involved. Appellants’ first point of error is overruled.

By appellants’ second and third points of error it is contended the court erred in striking Paragraph IX of their petition where they alleged Pierce had been charged with and pleaded guilty to several traffic violations and had been involved in eight separate motor vehicle collisions, since, they sued Peoples Ice Company on the theory of negligent entrustment of a motor vehicle to Pierce and by excluding evidence tendered by appellant of the driving record of Pierce on the theory such evidence was admissible on the issue of negligence of Pierce upon the occasion in question and upon the issues of negligent entrustment by Peoples Ice Company of the operation of a motor vehicle to Pierce. Before the case went to trial Peoples Ice Company admitted and stipulated in its first amended answer that at the time and on the occasion in question and at the time material to this suit that Joe Wayne Pierce was an employee of Peoples Ice Company; and at the time and on the occasion in question and at the time of the accident in question that Pierce was acting in the course and scope of his employment with Peoples Ice Company. It is stated in Missouri, K. & T. R. Co. v. Johnson, 92 Tex. 380, 48 S.W. 568 as follows: “We think the rule is well settled that when the question is whether or not a person has been negligent in doing, or in failing to do, a particular act, evidence is not admissible to show that he has been guilty of a similar act of negligence, or even habitually negligent upon a similar occasion,” citing many cases. See’ also Glass v. Houston Singing Soc., Tex.Civ.App., 192 S.W.2d 300. It is stated in Patterson v. East Texas Motor Freight Lines, Tex.Civ.App., 349 S.W.2d 634 (N.R.E.) as. follows:

“Appellants in their petition plead several grounds of primary negligence against the driver of the truck, and in addition plead the truck company was guilty of negligence on the theory of ‘negligent entrustment.’ Appellants alleged the driver was an employee of the truck company and acting within the scope and course of his employment with the truck company at the time of the collision. The appellees stipulated and agreed that this was true and that the doctrine of respondeat superior would apply in this case. Appellees then moved the trial court to strike the allegation as to negligent entrustment which motion was granted and the appellants contend this was error. We are unable to agree with appellants upon this theory. Evidence as to prior accidents, or prior acts of negligence on the part of the driver, would be admissible only to prove the driver was unsafe or incompetent, and not to prove he was negligent on the occasion in question. The theory of negligent entrustment in order to bind the truck company became immaterial as soon as the stipulation as to course of employment was made. There was no issue left to submit to the jury upon which this testimony as to negligent entrustment would be admissible.”

Appellants’ second and third points of error are overruled.

By appellants’ fourth point of error it is contended the court erred in submitting Special Issues 8 and 9 without first submitting an issue inquiring of the jury whether or not the crossing of Avenue Q by Mr. Frasier upon the occasion in question was in fact a failure to yield the right-of-way to the vehicle being driven by Pierce. Special Issue 8 inquired of the jury if, they found from a preponderance of the evidence that the failure of Mr. Frasier to yield the right-of-way to the vehicle driven by Pierce at the time and on the occasion in question was negligence, then by Issue 9 asked if the same was a proximate cause.

It is undisputed that Mr. Frasier was crossing Avenue Q at approximately the middle of the block when he was struck by the Pierce truck and that such was not within a marked crosswalk or within an unmarked crosswalk at an intersection. There is no evidence in the record that Mr. Frasier ever saw Pierce’s truck and attempted to get out of the way of the truck and yield the right-of-way to Pierce. Vernon’s Ann.Civ.St., Article 6701d, Sec. 78(a) provides: “Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the highway.” Section 18-40 of the Lubbock City Code at the time of this accident provided: “(a). Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the highway.”

Since it is undisputed that Mr. Frasier did not yield the right-of-way, there is only one conclusion that could be reasonably drawn from the evidence and would present questions of law for determination by the court rather than by the jury. Howard v. Thompson-White Lumber Co., Tex.Civ.App., 266 S.W.2d 242 (N.R.E.); Kirby Lumber Co. v. Temple Lumber Co., 125 Tex. 284, 83 S.W.2d 638; Howard v. Wilburn, Tex.Civ.App., 351 S.W.2d 345 (N.R.E.). Appellants’ point four is overruled.

By appellants’ fifth assignment of error it is contended the court erred in including in the charge in the instruction as to the right-of-way between a pedestrian and the vehicle because the questions of who has the right-of-way and who fails to yield it are questions of fact rather than questions of law and then by point six that the court erred in including in the charge double instructions on the law as to the right-of-way between a pedestrian and a vehicle and was therefore prejudicial and inflammatory. The charge complained of was as follows:

“By the term ‘right-of-way’, is meant the privilege for immediate use of the roadway.
You further are instructed that as a part of the law of this case that every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the highway.
You are instructed that as a part of the law of this case that between any adjacent intersection at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked or unmarked crosswalk. The term 'intersection/ as used in this section shall not be construed to include intersections of public alleys with public streets but the term intersection shall be construed to include only intersections of public streets, roadways or highways having a regular or official name, or being more than 20 feet in width.”

The charge was in accordance with Article 6701d, Sections 20 and 78(c) and Rule 277, Texas Rules of Civil Procedure. In answer to Special Issue 6 the jury found that the crossing of Avenue Q by Mr. Frasier at the time and on the occasion in question at a place not within a marked crosswalk and not at an intersection of two public streets was negligence and in answer to Special Issue 7 that such was a proximate cause of the accident in question. The trial court here went further than was necessary in this record in submitting the issue of negligence. Howard v. Wilburn, supra; Howard v. Thompson-White Lumber Co., supra. We are of the opinion the court did not err in giving the charge complained of but if such was error, it was harmless error since Mr. Frasier was found guilty of two acts of negligence which proximately caused the injury in addition to the one here complained of. Dallas Railway & Terminal Co. v. Orr, Tex.Civ.App., 210 S.W.2d 863, affirmed 147 Tex. 383, 215 S.W.2d 862. Appellants’ points five and six are overruled.

We have carefully considered all of appellants’ assignments of error and overrule all of them. Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Ronald Dean BARKER, Appellant.
    No. 51542.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.
    Norman H. Anderson, Atty. Gen., Richard Provaznik, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
    Wm. Clark Kelly, Springfield, for appellant.
   PRITCHARD, Commissioner.

Defendant was convicted of the commission of the crime of burglary of a dwelling house pursuant to the verdict of a jury. It was alleged in the information that defendant was convicted, sentenced and served a sentence for a previous felony, and in accordance with the second offender act (Sec. 556.280, RSMo 1959, V.A.M.S.) the court found that fact and subsequently sentenced him to four years’ imprisonment in the custody of the Department of Corrections.

The sole issue on this appeal is whether the trial court erred in refusing to give to the jury defendant’s requested Instruction No. 11 which relates to defendant’s choice not to testify in the case. Defendant files no brief, but this sole issue is adequately preserved in his timely motion for new trial. Instruction No. 11 is as follows:

“The Court instructs the jury that the law does not call upon or require a defendant to establish his innocence, and that a defendant may properly choose not to take the witness stand and testify, in which case the burden remains upon the prosecution to prove the defendant guilty beyond a reasonable doubt.
“Therefore, the fact that the defendant has chosen not to testify in this case creates no presumption or inference whatsoever that he is guilty. The jury must not permit that fact to weigh in the slightest degree against the defendant, nor should that fact even enter into any discussions or deliberations of the jury in any manner.”

Defendant’s five assignments of error may be grouped. He contends that he was entitled to have the jury instructed regarding the matters set forth in the instruction, and that the refusal denied him due process of law under the Fourteenth Amendment of the Constitution of the United States; that the refusal violated his privilege against self-incrimination guaranteed by the Fifth Amendment, and made applicable to the states under the Fourteenth Amendment of the Constitution of the United States; that the refusal to give the instruction deprived him of the full and complete protection of that portion of the Fifth Amendment of the Constitution of the United States which provides that no person in any criminal case shall be compelled to be a witness against himself; that the refusal permitted the danger to exist that the jury might draw unfair or unwarranted inferences against him because of his exercise of his constitutional privilege to remain silent and [the court] failed to limit or prohibit by instruction any inference to be drawn by the jury from the defendant’s silence, all in violation of his privilege against self-incrimination guaranteed by the Fifth Amendment of the Constitution of the United States; and that the refusal to give the instruction to limit or prohibit any unfair inference to be drawn by the jury from his election to remain silent effectively imposed a penalty or sanction against the exercise of his constitutional rights, all in violation of his privilege against self-incrimination guaranteed by the Fifth Amendment, and in violation of the due process clause of the Fourteenth Amendment, of the Constitution of the United States. In support of assignments of error in his motion for new trial, defendant therein cites the cases of Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650; Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; and Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.

Wilson v. United States, supra, held as reversible error a reference by the district attorney, in summing up the case to the jury, of the failure of the defendant to apr pear as a witness because such reference violated the Act of Congress of March 15, 1878 (20 Stat. at L. 30, chap. 37) [1940 ed., Judicial Code and Judiciary, 28 U.S.C. § 632], which provides that the person charged with the commission of a crime shall, at his own request, but not otherwise, be a competent witness, and that his failure to make such request shall not create any presumption against him. Malloy v. Hogan, supra, although deciding that the provisions of the Sixth Amendment on self-incrimination of the United States Constitution are, through the Fourteenth Amendment thereof, applicable to the states, had no question of defendant’s entitlement to a limiting instruction upon his failure to testify. Bruno v. United States, supra, held that under the Federal Act, now substantially 18 U.S.C.A. § 3481, defendant was entitled to an instruction upon the effect of his failure to testify. Griffin v. State of California, supra, held merely that the trial judge’s and prosecutor’s comments on the defendant’s failure to testify violated the self-incrimination clause of the Fifth Amendment of the United States Constitution, and the decision was reserved as to whether an accused could require, as in Bruno v. United States, supra, that the jury be instructed that his silence must be disregarded.

The above cases are not supportive of defendant’s assignments of error, and especially is this true when the provisions of our statute, § 546.270, RSMo 1959, V.A.M.S., and Supreme Court Rule 26.08, V.A.M.R., are considered. They are identical: “If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.” (Emphasis added.)

Our statute and rule are broader than the Federal statute, 18 U.S.C.A. § 3481, in the italicized portion above. The purposes of our act and rule are to keep absolutely from the jury any reference to the constitutional right (Const. Mo.1945, Art. I, § 19 V.A.M.S.) against self-incrimination. State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 455 [13, 14], In State v. Conway, 348 Mo. 580, 154 S.W.2d 128, 134 [14], the concept was stated, “ * * * [T]he privilege against self-incrimination is a part of the Bill of Rights, a personal privilege, guaranteed by the Constitution in unambiguous language; and the statutory protection against comment, by court or counsel, is a plain legislative mandate, the underlying policy of which is and was for the draftsmen of the acts and not the courts.” Even when it is requested by defendant, as here, this court has long held that it is not error to refuse such an instruction. State v. Long, 324 Mo. 205, 22 S.W.2d 809, 813 [17]; State v. Denison, supra; State v. Rutledge, Mo., 267 S.W.2d 625, 626 [5, 6]; State v. Phillips, Mo., 324 S.W.2d 693, 697 [7-9]; State v. West, Mo., 356 S.W.2d 880, 882 [6]; State v. Aubuchon, Mo., 381 S.W.2d 807, 816 [18]; and State v. Perkins, Mo., 382 S.W.2d 701, 707 [10]. Defendant’s assignments of error are overruled.

We have examined the record as to the matters specified in Supreme Court Rules 28.02 and 28.08, and in respect thereof we find no error.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM.

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: HOLMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Rodger Lee McQUEEN, Appellant.
    No. 51211.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Clyde Burch, Sp. Asst. Atty. Gen., Kirksville, for respondent.
    Hale W. Brown, Kirkwood, for appellant.
   HOLMAN, Judge.

Defendant, Rodger Lee McQueen, was charged with the murder (in the first degree) of George Francis. He was found guilty of murder in the second degree and his punishment was fixed by the jury at life imprisonment. See §§ 559.010, 559.020, and 559.030 (all statutory references are to RSMo 1959, V.A.M.S.). Defendant has appealed.

In presenting its case the State relied upon circumstantial evidence. With meticulous care, it presented a large quantity of detailed facts which complied with the strict requirements of a circumstantial case and from which a jury reasonably could have found, beyond a reasonable doubt, that defendant shot and killed George Francis on October 23, 1963. While we will refer briefly to the State’s evidence it is not necessary to state it in detail because the defendant subsequently testified and admitted that he shot the deceased on the date heretofore mentioned, but stated that he did so in self-defense after the deceased attacked him.

The dead body of George Francis was discovered at about 8 o’clock p. m. on October 23, 1963, at the apartment in which he lived. His death was shown to have been caused by three gunshot wounds. Three fingerprints of the defendant were found in the room, and the gun found in defendant’s possession at the time of his arrest was shown by a ballistics expert to have been the gun from which was fired a bullet found in the body of deceased. There was evidence that the gun was the property of Mary Zoeller. She stated that she kept the gun in her car and that she had discovered it was missing in November 1963. A shirt which was the property of her brother, Dr. Conrad Zoeller who lived next door, was found in the decedent’s apartment and another shirt belonging to Dr. Zoeller was in the possession of defendant when he was apprehended. Dr. Zoeller testified that his sister took his shirts to the laundry and that these shirts must have been taken from her car.

Deceased owned a diamond-studded wrist watch. It had a row of diamonds on each end of the case and the numerals on the face of the watch were made of small diamonds. It was described as an expensive “very prominent-looking watch.” Defendant was shown by a number of witnesses to have been wearing that watch on October 23, 24, and 25.

At about 11:30 p. m. on October 24, defendant approached one James Fisk at Independence, Kentucky, and with the use of a revolver, forced Fisk to drive him toward Louisville. Fisk’s car was stopped at a roadblock, apparently near Covington, Kentucky, where defendant pointed the gun at the head of Captain R. C. Richardson and tried to force him to get into the car, but after a time the officer was able to disarm defendant and he was forcibly removed from the car and taken into custody by officers present.

In view of the testimony of the defendant, hereinafter detailed, we consider it advisable to mention the testimony of Donald Cole. He stated that he was with deceased after 10 p. m. on October 22 and spent the night in deceased’s apartment; that they slept in the same bed; that at some time after retiring deceased got up and answered the front door and that someone came into the apartment for a time; that the next morning he dressed and left for work about 7 o’clock and that he never saw deceased alive again. On cross-examination this witness stated that he had been at deceased’s home on numerous occasions; that both he and deceased were homosexuals and that they had had abnormal sexual relations with each other.

Defendant testified that in September 1962 he was convicted of the offense of obtaining a narcotic drug under false pretenses and sentenced to imprisonment in the Missouri State Penitentiary for two years; that prior thereto he had become acquainted with deceased and for a period of about two years had, from time to time, purchased marihuana and certain drugs, mainly benzedrine pills, from him; that he had become addicted to narcotics prior to entering the penitentiary; that he was released from the penitentiary on September 26, 1963; that he saw deceased about a week thereafter and deceased offered to try to get him a job; that deceased called him on October 22 and asked him to stop by his apartment about 11:30 p. m. and talk with him about a job; that when he went to deceased’s home deceased answered the door and told him that he had an engagement with Mr. Cole and that he should return about 7:15 the following morning; that he then left the premises. He stated that when he returned the next morning deceased was drinking vodka and appeared to be very upset; that deceased stated that he had quarreled with Cole as a result of defendant having come to the apartment the night before; that there was a revolver on the dresser and that deceased threatened to kill himself; that deceased seemed to be irritated at him and finally, after threatening to become sexually intimate with him, picked up a metal shoehorn about two feet long and started toward him; that he then picked up the gun and as deceased advanced toward him fired the first shot when he was about ten feet away, and a second one when he was about three feet away, and the third shot, which caused deceased to fall, was fired when he was “right over me.”

Defendant testified that he had not used any narcotics after being released from the penitentiary, but that after the shooting he was scared and immediately went to the dresser where deceased kept his narcotics and obtained all of the marihuana and pills that were there. He also took the diamond wrist watch which was lying on the dresser and the gun he used in the shooting and left the apartment. He stated that he was under the influence of narcotics from that time until he was arrested and had only a vague recollection of much that occurred while hitchhiking from St. Louis to Kentucky.

Defendant stated that he knew Dr. Zoeller and knew that deceased and the doctor were friends. He denied stealing the gun or the shirts from Mary Zoeller’s car and apparently endeavored to account for his possession of Dr. Zoeller’s shirt by testimony to the effect that deceased had given him some clothing, including a number of shirts.

Defendant has not filed a brief and we will therefore consider the contentions properly raised in his motion for new trial. State v. Deutschmann, Mo.Sup., 392 S.W.2d 279. The first assignment presents the contention that the conviction cannot stand because there was no proof of venue and no instruction requiring a finding that the shooting occurred in the City of St. Louis, Missouri. That contention is without merit. There was direct testimony that the shooting occurred at 1325a Good-fellow in St. Louis, Missouri. Also, the instruction submitting second degree murder required a finding that the events occurred in the City of St. Louis, Missouri. The assignment is disallowed.

The remaining assignments relate to the instructions and the sufficiency of the evidence to support the submissions. The court gave instructions submitting (1) conventional first degree murder, (2) felony murder, (3) second degree murder, (4) manslaughter, and (5) the defense of self-defense.

Defendant’s motion states that there was no evidence to support a submission of first degree murder and that in any event the court erred in giving two instructions submitting that offense. We need not consider the merits of those contentions because defendant was not convicted of first degree murder and is therefore in no position to complain of the alleged errors in regard to that submission. State v. Anderson, Mo.Sup., 375 S.W.2d 116 [7]; State v. Sprout, Mo.Sup., 365 S.W.2d 572 [11].

The next contention is that the court erred in failing to define the word “homicide.” In that connection we note that that word does not appear in the second degree murder instruction under which defendant was convicted. Moreover, while we doubt the necessity of defining the word, we find that the phrases, “excusable homicide,” and “justifiable homicide,” are defined in one of the instructions. Those definitions should have been sufficient to give the jury a general idea as to the meaning of the word “homicide.” We rule that no prejudicial error resulted from the failure of the court to define the word “homicide.”

Another assignment is that the evidence was not sufficient to support the giving of the second degree murder instruction. In considering that contention we observe that the evidence unquestionably shows that defendant intentionally killed the deceased with a deadly weapon. That raises a presumption of murder in the second degree. State v. Hogan, 352 Mo. 379, 177 S.W.2d 465. We have frequently held that “when the evidence shows the defendant intentionally killed deceased with a deadly weapon that is sufficient to sustain a conviction of second degree murder. State v. Thomas, Mo.Sup., 309 S.W.2d 607, 609, and cases cited.” State v. Williams, Mo.Sup., 323 S.W.2d 811, 813. It is also significant that defendant fled from the scene and from the State following the shooting. Of course, defendant’s testimony made an issue of self-defense but that issue was for the jury to determine. We rule that the evidence was sufficient to make a submissible case of second degree murder.

The final assignment is that the court erred “in giving the second degree murder instruction and the verdict form permitting the jury to return a verdict of second degree murder for the reason that the statute covering second degree murder does not permit the giving of a life sentence but should have been restricted to not less than 10 years and such instruction and verdict form were prejudicial to this defendant.” The instruction in question told the jury that in the event it found defendant guilty it should “assess his punishment at imprisonment in the penitentiary for such length of time as you deem proper, not less, however, than ten years.” The instruction followed the precise wording of § 559.030 which says that the punishment shall be imprisonment for “not less than ten years.” It does appear in the transcript that one of the forms of verdict given to the jury by the court contained the words “imprisonment for life.” However, the provision for imprisonment for a period of not less than ten years would certainly authorize a verdict of imprisonment for life. A form of verdict which specifies a punishment which is within the limits prescribed by the statute is not erroneous. Moreover, defendant’s attorney examined the forms of verdict before submission and made no objection. He, in fact, stated, “I am sure they are all right.” The contention is without merit and hence is ruled adversely to defendant.

An examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Theodore Woodrow GREGG, Appellant.
    No. 51481.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Esco V. Kell, West Plains, for appellant.
   HOLMAN, Judge.

The amended information in this case charged defendant with the offense of murder in the first degree. The jury found him guilty of murder in the second degree. Since it was alleged and proved that defendant had been convicted of a prior felony the court determined his punishment which was fixed at imprisonment in the penitentiary for a period of twenty-five years. See §§ 559.010, 559.020, 559.030, and 556.280. (All statutory references are to RSMo 1959, V.A.M.S.) Defendant has appealed.

Robert King suffered a gunshot wound at his home in Thayer, Missouri, on October 7, 1963, from which he died a few hours thereafter. The State in presenting its case relied primarily upon the presence of defendant at the scene of the offense and evidence of a number of statements alleged to have been made by him in which he admitted the shooting.

Defendant and deceased were both disabled war veterans and each lived primarily from the proceeds of a veterans disability pension. They had lived together for about two years and were apparently good friends. The evidence indicated that they both drank intoxicating liquors regularly, perhaps to excess. On the day of the shooting deceased, defendant, Bob Braden, and Marvin Cotham were “having a party” at deceased’s home. They started drinking about nine o’clock a. m. and apparently all of them were drunk most of the day. Marvin Cot-ham left the King home at about three o’clock and Braden had left prior to that time. Cotham testified that there had been no quarrel or trouble of any kind while he was at the home. At about four-thirty p. m. on that date Grace Black who lived nearby heard a shot. About thirty minutes later defendant went to her home and informed her that he had “shot a guy.” Defendant attempted to make a telephone call from her home but was unable to reach his party. He had a rifle with him which he gave to Mrs. Black, at her request, and she then called E. J. Smith, a deputy sheriff, who went to her home and they went together to the King home. Deceased was lying on the lawn and when asked what had happened he stated that defendant had shot him. Defendant first denied that and then said, “You damn right I shot you, Bob. Do you want me to shoot you again?” Deceased was found to have a bullet hole in the left side of his chest just below the nipple and an exit hole in his back somewhat lower than the chest wound. Deceased was taken by ambulance to Memorial Hospital in West Plains where he died. A pathologist performed an autopsy and concluded therefrom that deceased died from hemorrhage resulting from the bullet wound.

Desmon Harber, City Marshal of Thayer, testified that as Deputy Sheriff Smith was taking defendant to jail Smith stopped his car and told him that a man had been shot, and defendant said to the witness, “I just shot a man.” Harber stated that when he later took a meal to defendant at the jail defendant told him he had shot King just like he would a dog.

Sheriff Burleson testified that he talked with defendant on October 8 at the jail and that defendant asked him how Bob was and, upon being told that Bob had died, defendant said, “I hope they give me the damn gas chamber. I don’t want a long time in the penitentiary.” He also testified that when Patrolman Kelsey was fingerprinting defendant, Kelsey was looking at defendant’s rifle and mentioned that it ought to be a good deer rifle, and defendant said, “I don’t know about a deer rifle, but it took care of old Bob.”

There was evidence that defendant had bought the rifle about ten days before the shooting. The bullet was never found but there was expert testimony that an expended cartridge case found at the King home had been fired in defendant’s gun.

Defendant did not testify. The witnesses he produced did not add much to the testimony developed by the State. He presented additional evidence indicating that defendant and deceased had been good friends. One witness testified that deceased introduced defendant to him a few days before the shooting as “My buddy.” There was also further evidence presented which indicated that deceased and defendant were both drunk on the day of the shooting. Mrs. Black testified that King told her about eleven-thirty a. m. on that date that defendant had “passed out” and she observed that defendant was “wobbling” when he came to her home and told her about the shooting.

The first point briefed is that the court erred in refusing to give an instruction offered by defendant which would have submitted the defense that deceased died as the result of an accident. In support of that contention defendant cites State v. Martin, 349 Mo. 639, 162 S.W.2d 847, in which a similar instruction was given. The distinction between the two cases is that in the Martin case there was evidence that the deceased died as the result of an accidental injury, whereas in the case at bar there was no evidence from which the jury reasonably could have found that deceased was accidentally shot. In the absence of evidence upon which to base the instruction the court properly refused to give it. This point is without merit.

Defendant also contends that there was not sufficient substantial evidence to support a submission of murder in the second degree. He states that such is particularly true since the evidence was circumstantial and no motive was shown. In view of the evidence of defendant’s admissions this is not a circumstantial case. Moreover, we have often held that proof of motive is not absolutely essential in the proof of a submissible murder case, and that is especially true where there is direct evidence of an intentional killing. State v. Dodson, Mo.Sup., 29 S.W.2d 60; State v. Wolff, 340 Mo. 659, 101 S.W.2d 973. Defendant’s presence at the scene of the shooting and the evidence indicating that the fatal shot came from defendant’s gun, when considered in connection with defendant’s statement that he shot deceased “like he would shoot a dog” (and other similar admissions), would reasonably support a finding that defendant intentionally shot deceased with the rifle. We have frequently held that “when the evidence shows the defendant intentionally killed deceased with a deadly weapon that is sufficient to sustain a conviction of second degree murder. State v. Thomas, Mo.Sup., 309 S.W.2d 607, 609, and cases cited.” State v. Williams, Mo.Sup., 323 S.W.2d 811, 813. See also State v. McQueen, Mo., 399 S.W.2d 3, decided concurrently herewith. We rule that the evidence was sufficient to make a sub-missible case of second degree murder.

There is no merit in the contention that the court erred in admitting the testimony of Marshal Harber that defendant said he “shot Mr. King just like he would a dog” and the testimony of Sheriff Burleson that defendant said, “I hope they give me the damn gas chamber, etc.” Defendant says those statements should not have been admitted because inflammatory and prejudicial. Of course, admissions of a defendant are always prejudicial in the sense that they may tend to prove his guilt. That is the purpose for offering and admitting them. “ ‘Any statements made by a defendant, which tend to incriminate him and connect him with the crime charged, are admissible when voluntarily made.’ State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 881.” State v. Thresher, Mo.Sup., 350 S.W.2d 1, 9. As indicated, we rule this point adversely to defendant.

Defendant has briefed the contention that the court erred in failing to give (sua sponte) “instructions on negligent manslaughter or lesser offense than second degree murder.” He says such instructions should have been given because no motive was shown. We do not agree. We have heretofore ruled that motive is not an essential element of second degree murder and that the evidence warranted the second degree submission. Moreover, there was no evidence which would have supported a submission of manslaughter whether on the theory of culpable negligence or otherwise. Defendant’s statements that he shot deceased “just like he would a dog” and “You damn right I shot you, Bob. Do you want me to shoot you again” are certainly contrary to any suggestion of negligent manslaughter. This contention is accordingly overruled.

The following occurred during the argument of the prosecuting attorney: “Mr. Davidson: * * * malice can be inferred from the facts; he intentionally shot him, and he has voiced here on different occasions that he shot him. One: T shot him down like a dirty dog.’ It wasn’t controverted. The defendant didn’t deny it; there was no evidence—Mr. Kell: I obj ect to that statement and ask that the jury be instructed to disregard it. The Court: The jury is instructed to disregard the statement, ‘The defendant didn’t deny it.’ Mr. Kell:—and I ask that the jury be discharged. The Court: That will be denied. Mr. Kell:—and I ask that the attorney be reprimanded. The Court: That will be denied.”

Defendant contends that the statement of Mr. Davidson was a reference to his failure to testify and hence the court erred in failing to sustain his motion to discharge the jury. Unquestionably § S46.270 and S.Ct. Rule 26.08, V.A.M.R. provide that no attorney in the case shall refer to the failure of the accused to avail himself of his right to testify. The first question to be decided here is whether the statement complained of was, in fact, a reference to the failure of defendant to testify. We do not think the argument would reasonably be construed as a reference to such failure. It appears to us that the point the prosecutor was attempting to make was that defendant intentionally shot deceased. In support of that conclusion he stated that defendant had admitted it — it wasn’t controverted — the defendant didn’t deny it. There were a number of occasions when defendant had an opportunity to deny the shooting other than from the witness stand. The first opportunity was when deceased said that defendant had shot him. While defendant momentarily denied it, he admitted the shooting almost immediately. He subsequently talked about the shooting with a number of officers and did not deny it but, in fact, admitted that he shot deceased.

The only possibility of construing the argument as a reference to defendant’s failure to testify is to say that the statement, “defendant didn’t deny it,” referred to the testimony concerning his statement, “I shot him down like a dirty dog.” It would appear that the only opportunity defendant had to deny that statement was at the trial. While we do not believe that is the proper construction of the argument, if any juror did so construe it, we think, under the particular situation here presented, the court’s instruction to disregard the statement was sufficient to cure the error. See State v. Conway, 348 Mo. 580, 154 S.W.2d 128 [12]; State v. Kelleher, 201 Mo. 614, 100 S.W. 470; State v. Fitzgerald, 130 Mo. 407, 32 S.W. 1113 [16]; State v. Miller, Mo. Sup., 12 S.W.2d 39 [5]; State v. Flick, Mo. App., 198 S.W. 1134; and Anno. 84 A.L.R. 784, 795.

While we have seen fit to discuss the merits of this contention we have not overlooked the fact that no reason was stated by defendant’s counsel as the ground for his objection and the requests that the jury be discharged and that the attorney be reprimanded. An obj ection or other request for relief is usually held to be insufficient where no ground is stated. State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22 [29]. In addition to what we have already said, we are of the opinion that the failure to state grounds for the relief requested is a further justification for the refusal of the trial court to reprimand the attorney or discharge the jury. The contention is disallowed.

An examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.


author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. Lonnie Merriam WYRICK, Appellant.
    No. 51508.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.

      Norman H. Anderson, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
    Max A. Patten, Joplin, for appellant.
   HIGGINS, Commissioner.

Lonnie Merriam Wyrick, alias Lottie Wyrick, under information charging murder in the first degree of Opal Wyrick, was convicted of murder, second degree, and the jury fixed his punishment at 20-years’ imprisonment. Section 559.030, V.A. M.S. Appellant has not filed a brief, in which case we review assignments of error preserved in the motion for new trial. State v. Kukovich, Mo., 380 S.W.2d 324, 325 [1].

On August 5, 1964, Daisey Wyrick, an aunt of defendant, lived at 809 Indiana, Joplin, Jasper County, Missouri. Her home was pictured by several exhibits and described as one large living-dining-bedroom-kitchen room with a screened porch at the rear which was furnished with a divan. Mrs. Wyrick used a portion of the house near the front door as her bedroom and she could see callers at the front door from a window in that area. The middle portion contained a round dining table.

Opal Wyrick was defendant’s wife and she had been living with her husband’s aunt for a little over two weeks after leaving and suing him for divorce in Oklahoma.

At about 5 P.M., August 5, 1964, Daisey Wyrick was ill. She had been taken to the hospital by a Mr. Everett Arnold the previous evening. Mr. Arnold was a friend (“He keeps me in my wood and my coal and things like that.”) and he came to see how she was on the 5th. He and Opal Wyrick were drinking coffee on the back porch when Daisey Wyrick looked out the window from her bed and saw defendant come to the front door. He had come from Oklahoma with a sister, Hester, her son, and a friend, Charles Bresee. According to her, she said, “ ‘Lot, don’t come in.’ * * * He tore down the door and come in anyway. * * * Lot chased her (Opal) around the house— around the big table and tore her waist off from her. * * * I run out to holler for help.” According to her, Opal Wyrick was fully dressed in bra, underpants, knee-length shorts, and a waist or blouse.

Mr. Arnold also saw Lot chase his wife around the table and “the next time I seen them, he had her under the table choking her. * * * Charlie Bresee and his sister, Lot’s sister, pulled him off of her.” He next saw Lot and Opal go to the back porch at which time “he struck at me and missed me and he said, ‘I’ll kill you, too.’ * * * He said that to me and they was still setting there on the divan, and his sister, Lot’s sister and the Bresee boy went out the front door and I went out right behind them.” Opal was still alive at this time.

David Carlton, a police officer, responded to a call for help. He testified: “* * * I went up on the front porch and noticed that the screen door was tore, as I looked through I seen a man coming from the back room into the living room and I went through the front door and we met in the middle of the room and the man stated that she was dead; that he killed her. I walked to the door to the rear of the room and there is a little porch like there and I observed a lady lying there.” He identified the man who spoke as the defendant and the deceased as Opal Wyrick.

Raymond Service, a neighbor, was outside his home when Daisey came out “hollering for somebody to call the police.” He saw the defendant on the back porch after all the others except Opal were gone. His sister, Catherine Service, was also attracted to the incidents at her neighbor’s house. She also saw defendant on the back porch after everyone except Opal was gone, and “ * * * (it) looked like that he just had his hands like that (indicating) and his muscles was strained like — his hands was close together and he just shoved down like that * *

Dr. Victor Carnes, pathologist, gave his opinion that Opal Wyrick died from strangulation.

Upon invitation to tell what happened, defendant testified: “Drove up in front of the house and I dumb out of the car and walked up on the porch and looked through the screen door and Arn was on top of my wife on the porch, on the back porch and I jerked the door, and I went in and when I got inside, all of us, we all went to fighting. Scuffling on the back porch. And when we all got through, I don’t remember what happened and when I come to, my wife was a-laying there and I was rubbing her and trying to get her to and I never did get her to.” Defendant denied any intention to kill his wife and explained his testimony to mean that he saw Arnold and his wife engaged in sexual intercourse on the divan on the back porch. He maintained that his wife had one leg out of her clothes at the time of the “fight.” Her clothes were not torn and he put them on properly “as I come to myself.” The undertaker, Harvey Arnce, stated that the blouse and brassiere were torn, and that all of Opal Wyrick’s garments were clean and unsoiled. Everett Arnold denied having sexual intercourse with Opal Wyrick; and Adrian Meacham, police chief, referring to a picture of the couch and back porch, testified that “we had a person standing at this position where this couch is shown sitting at the time * * *. A person stood there yesterday (February 16, 1965) and I observed through the front porch from all angles and I could not see the person who was standing at the point where this couch was sitting in this picture.”

Appellant’s first assignment that the verdict is “against the law and the evidence under the instructions,” is insufficient for any purpose. State v. Ivory, Mo., 327 S.W. 2d 870, 871 [1].

The second assignment charges that “the court erred in permitting Police Chief, Adrian Meacham, to testify as to the condition of the premises on February 16, 1965, a considerable period of time after the alleged occurrences in August of 1964, * * and the court should have sustained the objections of the defendant and not to have permitted said Adrian Meacham to testify to anything that he saw on February 16th, 1965, but the said court, over the objections of said counsel, did permit the said evidence to go in * * This assignment is without merit because it is not supported by the record which shows that the only objection made by defendant during the testimony of Adrian Meacham was sustained. In reference to Exhibit 4 the witness was asked, “Would you have an opinion as to whether or not a person looking in the front door of that house could see anyone on the couch?

“MR. PATTEN: Now, if the Court please, I object to that. The couch wasn’t there. He doesn’t know where it was positioned. There is no one has it positioned and he couldn’t have any opinion from having seen the scene.

“THE COURT: Well, I think the objection would be good as to his opinion, I will permit him to testify as to whether hé could see the place on the back porch where the picture shows the couch is on that picture.”

The next assignment relates to Instruction No. 3: “* * * that where a man finds his wife in the act of sexual intercourse with another man, and at the moment he kills his wife, or her paramour, the law, though not justifying the killing, mitigates the offense to manslaughter, because the character of the act is such as the law presumes to excite that passion in the mind of the slayer which precludes the idea of premeditation or malice. But it is only where the wife has been discovered in the actual act of sexual intercourse, that the law grants mitigation on the ground of passion.” Appellant contends that the instruction is erroneous because it requires a finding that the slayer discovered his wife “actually in the act of sexual intercourse, when in fact the instruction should have said, or given him the benefit that he had discovered his wife in a very compromising position, which would lead him to believe that she was in the act of actual sexual intercourse * * This assignment is also without merit. In State v. France, 76 Mo. 681, the accused killed his wife’s adulterer and an instruction authorized mitigation “when the wife has been discovered in the actual act of adultery and the killing follows immediately upon the discovery.” We said, 1. c. 685: “The rule governing such cases is * * * ‘If a husband finds his wife committing adultery, and provoked by the wrong, instantly takes her life or the adulterer’s * * * the homicide is only manslaughter. But to entitle it to this tender consideration, the detection must be in the very act, which is supposed to so stir the blood of the injured person as to impair for the moment his reason ;***.’ ” See also State v. Vest, 254 Mo. 458, 162 S.W. 615, 617 [1, 2]; State v. Holme, 54 Mo. 153, 164, 165; State v. Davis, Mo., 328 S.W.2d 706, 709 [4]. The instruction was proper under the evidence here because all the testimony on the issue went to whether the deceased and Arnold were engaged in sexual intercourse, appellant testifying that he did so see them, state’s witnesses denying that any such act took place.

Finally, appellant contends that it was error to instruct on second degree murder “because all the evidence showed that the defendant, in killing Opal Wyrick, acted without malice and in the heat of passion.” In State v. Holme, supra, 54 Mo. 1. c. 164, we said: “No man can be allowed to take a human life upon a mere suspicion of personal injury, and, if he does intentionally do so under such circumstances, he will be guilty of murder * * The strangulation of Opal Wyrick was the product of a brutal assault, and such an assault, when it results in death is sufficient to justify a submission of murder in the second degree, State v. Clark, Mo., 111 S.W.2d 101, 102 [2], and we have already held that the jury was instructed properly as to those matters which would negative malice to reduce appellant’s crime to manslaughter. State v. Davis, supra; State v. Williams, Mo., 323 S.W.2d 811, 813 [9]; State v. Taylor, Mo., 309 S.W. 2d 621, 624 [5-10]. The assignment is denied.

We have also examined those matters for which no assignment of error is required. Rules 28.02 and 28.08, V.A.M.R. The information is sufficient and in proper form; defendant waived formal arraignment and he pleaded not guilty; the verdict is in proper form, is responsive to the issues, and the punishment is within legal limits; defendant’s motion for new trial was considered and allocution was granted.

Defendant had the benefit of counsel throughout his trial, in preparation of his motion for new trial, upon allocution, and through preparation and approval of the transcript on appeal.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur.


author: HYDE, Presiding Judge.

text:
    Herbert CRAMER, Respondent, v. Mervyn JENKINS, Appellant.
    No. 51260.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.

      Marvin Pollard, Ludlow, Robert C. Frith, Chillicothe, for respondent.
    Chapman & Chapman, by Nolan Chapman, Jr., Chillicothe, for appellant.
   HYDE, Presiding Judge.

Action to determine title to an easement of right of way across land owned by defendant. Trial was by the court without a jury and judgment was that plaintiff had an easement 30 feet wide, north along the west line of defendant’s land to the south bank of a drainage ditch and thence in a northeasterly direction 2178 feet along the bank of the drainage ditch to the south line of plaintiff’s land. Defendant has appealed and claims the evidence does not show hostile use by plaintiff (actual, open, notorious, exclusive and continuous under a claim of right for the statutory period) but only permissive use revocable at defendant’s pleasure. We have jurisdiction because title to real estate is directly involved. Sec. 3, Art. V, Const., V.A.M.S.; Dalton v. Johnson, Mo.Sup., 320 S.W.2d 569; see also West’s Mo.Digest, Courts, 231(37).

Plaintiff’s evidence was that the drainage ditch across the land of plaintiff and defendant, south of the tracks of the Milwaukee Railroad, was dug in 1910 and 1911 and is now two or three hundred feet wide. Plaintiff’s land was northeast of defendant’s land. It was bought by plaintiff’s father in 1919 and in 1943 plaintiff bought the interests of his father’s heirs. However, plaintiff had farmed it from 1919 on, reaching it by going across the land now owned by defendant, which was bought by defendant in 1945. From 1919 to 1954 plaintiff always went to this land by going along the south side of the drainage ditch; and during that period no one ever interfered or attempted to stop him from using that road. When he first began to use the way, the land now owned by defendant was owned by John Sherbeck, Herb Wollcott bought it- in 1934 or 1935, then one Bradley bought it in 1936 or 1937 and sold it to defendant in 1945. However, defendant had farmed the land (1941-1945) as Bradley’s tenant before he bought it from Bradley. Defendant first questioned plaintiff’s right to use the road in 1954 and this suit was commenced in 1956. At times, others farming land east of plaintiff’s land (both landowners and their renters) came through plaintiff’s land and out to the county road by way of the road plaintiff used along the drainage ditch, “for the purpose of hauling out load of grain, stuff like that, and if they went there to farm.” Some had so used it even before 1919 when plaintiff’s use began. Plaintiff never had a conversation with anyone about using this road prior to the one with defendant in 1954. Plaintiff testified: “Q Why do you use it? A To get to this patch of land. Q You had no other way in? A There is another way in but that’s the nearest in.”

Defendant’s testimony was that in the winter of 1953-54 he stated to plaintiff about the road: “I would like to go to farming that ground up there, been all right for him to use it all these years but I thought maybe I ought to farm it from here on.” Plaintiff said he was going to use it; but defendant said they finally agreed that plaintiff would pay defendant $500.00 for it. Plaintiff said he offered $250.00; “told him I would rather give him something than fuss with him.” They had lawyers working on a contract but never agreed on a settlement.

Defendant remembered the land from 1916; the northwest part was then “pretty swampy” in ripgut swamp grass. Defendant said until he started farming it people went where they pleased and that he had “given many people permission to go down in there.” Some of these went there to fish. He further testified as follows: “Q Did you ever give Mr. Cramer permission to go down through there? A No, I never did tell him. He went in. Q What was the reason for him using it? A Well, I guess, he told me that was the only way he had to get to his farm. Q And when did you purchase this land? A 1945. Q And the argument or whatever that you had with Mr. Cramer in regard to using this alleged road was in the winter of ’53 and 1954, is that right? A That’s right, somewhere in there. * * * Q That was the first time you ever told him he couldn’t, you didn’t want him to use it? A Yes, that’s right. Q First time you ever tried to stop him using it? A Yes, sir. Q During all that time he never asked you if he could use it had he? A Well, it was understood. Q During that time had he ever asked you to use it? A No, it was perfectly all right. Q Until 1953 and 1954? A Yes, sir. Q All that time he had gone ahead since 1941 when you started there farming it without objection on your part, gone along the south side of that drainage ditch up to his land freely without any objection? A Certainly.” Previously defendant had been plowing north and south but in 1954 he decided he would “plow along the drainage ditch” and this precipitated the argument over plaintiff’s use. Other material facts will be hereinafter stated.

Defendant’s brief admits that plaintiff “has used this way for the statutory period and if he satisfies this court as to the other elements of prescription he has acquired the way he claims.” However, defendant claims plaintiff’s possession was not hostile. Defendant cites Gates v. Roberts, Mo.Sup., 350 S.W.2d 729, 732, saying: “ ‘Hostile possession’ means possession opposed and antagonistic to the claims of all others * * * and imports the occupation of land by the possessor with the intent to possess the land as his own.” However, the Gates case was not an easement case; but involved a claim of title to an entire city lot. We held the evidence showed exclusive and hostile possession of the whole lot under claim of ownership for more than the statutory period. Likewise Fiorella v. Jones, Mo.Sup., 259 S.W. 782, and Burnside v. Doolittle, 324 Mo. 722, 24 S.W.2d 1011, from which defendant quotes, are not easement cases. It is said: “[T]he principal difference being in the character of the claim and use” in easement cases. Roberts v. Quisenberry, 362 Mo. 404, 242 S.W.2d 26, 29. The claimant of an easement only claims a right to make a certain use of -land and does not claim to possess the whole title and exclude the owner from it for all purposes.

The American Law Institute Restatement of the Law of Property, Sec. 457, states: “An easement is created by such use of land, for the period of prescription, as would be privileged if an easement existed, provided the use is (a) adverse, and (b) for the period of prescription, continuous and uninterrupted.” The Restatement in Sec. 458 thus states the requirement of adverse use: “A use of land is adverse to the owner of an interest in land which is or may become possessory when it is (a) not made in subordination to him, and (b) wrongful, or may be made by him wrongful, as to him, and (c) open and notorious.” As to this it is stated in 3 Powell on Real Property 445, Sec. 413: “The satisfaction of the above stated prerequisites for ‘adversity,’ namely, that the user has been not made in subordination to the rights of the claimed servient owner, but, rather, has been made under claim of right is commonly inferred, rather than directly proved. Thus proof that a particular use of another’s land has in fact occurred normally justifies, in most states, a finding that the use has been adverse until this presumption is challenged by rebutting evidence.” A recent Missouri case is cited in support, namely, Mueller v. Larison, Mo.Sup., 355 S.W.2d 5. See also Dalton v. Johnson, Mo.Sup., 320 S.W.2d 569, 573. Defendant’s own testimony, here-inabove set out, would warrant a finding that plaintiff’s use of this roadway was not in subordination to defendant because plaintiff’s use began long before defendant became the owner of the land and, although such use was known to defendant when he bought the land, he neither said anything about it nor made any objection to it until 1954, when he decided it would he more convenient to him to plow over it. We consider that plaintiff’s evidence made a prima facie case which the court properly could decide was not overcome by defendant’s evidence.

Defendant arguing the use was permissive and not under a claim of right says that when plaintiff’s use began in 1919 the land now owned by defendant was in prairie grass, unenclosed, not farmed by the owner and that anyone could cross it at any point. Defendant says the land was not plowed to the drainage ditch until 1937 or 1938 and that all of it was not plowed until defendant became the owner. Defendant’s position seems to be that plaintiff’s use of the way could not have been adverse when part of the land was swampy, in prairie grass and not farmed or plowed by the owner and that, when defendant began to farm it, plaintiff had to do something more than continue the use he had been making to give defendant knowledge that his use was adverse to defendant’s title, citing; Hynds v. Hynds, 274 Mo. 123, 202 S.W. 387, 389, saying: “The burden is on a defendant claiming by adverse possession to fix the time when he began to hold adversely to the true title.” However, this involved the claim of one cotenant against the others, an entirely different matter. Plaintiff also cites such cases as Burnett v. Sladek, Mo.App., 251 S.W.2d 397, discussing ways used through unenclosed lands, especially woodland, only occasionally used and not always by the same route; and George v. Crosno, Mo. App., 254 S.W.2d 30, where the owner kept gates across the way which were opened and shut by users. Even though some of this land was swampy, nevertheless the ground along the drainage ditch appears to have always been a good place for a road and that was its location throughout the entire period. There were visible markings of the roadway and plaintiff worked it “with the blade on the back of a Ford tractor.” Moreover, plaintiff used this way for the statutory period after the land owned by defendant was being cultivated. Furthermore, defendant’s land was not unsettled territory being only about one mile from the town of Dawn and on its west line was the county road between Dawn and Utica. See Schroer v. Brooks, 204 Mo.App. 567, 583, 224 S.W. 53.

Defendant also points to plaintiff’s negotiations for purchase and his lawyer’s suggestion that he could establish a private road by legal proceedings. However, these were in connection with efforts to compromise the controversy which arose in 1954 when defendant attempted to stop plaintiff’s use of the way and the trial court reasonably could and apparently did consider them only on that basis.

Defendant further argues that plaintiff’s possession of the way was not exclusive pointing out that defendant himself used it and that the evidence showed others owning or farming land beyond plaintiff’s land used it. We know of no case holding that to obtain an easement of right of way the user must prevent the owner of the land from using it and defendant cites none. On the contrary, it is said: “The adverse user must be exclusive in the sense that the right does not depend for its enjoyment on similar rights in others. * * * The use may be exclusive in the required sense even though it is participated in by the owner of the servient tenement, or by owners of adjoining land.” 28 C.J.S. Easements § 15, p. 658; see also 17A Am.Jur. 698, Easements, Sec. 82. In an Annotation, 111 A.L.R. 223, the rule is thus stated: “The requirement of ‘exclusive,’ as regards acquirement of an easement of way by prescription, does not mean that the claimant shall have been the sole user, or the only one who could or might enjoy the same or a similar right over the same land, but simply that the individual right shall not depend for its enjoyment upon a similar right in others, being, by virtue of some distinction of its own, independent of all others.” In this case, the fact the way was used by some persons to get to and from land beyond plaintiff’s land would indicate that use by them was with plaintiff’s permission because they crossed his land to use it. In Anson v. Tietze, 354 Mo. 552, 190 S.W.2d 193, cited by defendant, it is said of the claimants therein (190 S.W.2d 1. c. 199): “They claimed no right in themselves that was not subordinate to the rights of the public.” Obviously that did not meet the requirement of exclusive user.

In Sanford v. Kern, 223 Mo. 616, 628, 122 S.W. 1051, 1055, cited in the A.L.R. Annotation, we said: “That the neighbors used this open lane when they liked in no way impairs his possession of right. Such acquiescence on his part did not destroy his easement. Such use is usual, and is recognized by our statute, in ways of necessity. Rev.St.1899, § 9468. The possession Sanford took and held was not the possession a proprietor would take and hold of his meadow, cornfield, or dooryard, but it was the possession usually taken of an open lane, cut off on both sides by fences, bridged where necessary, kept fit for use by annual repairs, and used continuously by him, his tenants, and those having business on his land as his means of egress and ingress — his market road. It was the best possession the subject-matter was susceptible of. The user was confessedly open, notorious, continuous, and without a word said or finger lifted in antagonism to it until defendant, after the flight of 14 years, built a fence across the_ lane and visibly asserted a hostile right to the strip.”

We have a similar view as to this case; although this way was not fenced it was in a well defined location, continuously used by plaintiff as his means of ingress and egress from 1919 to 1954 “without a word said or a finger lifted in antagonism to it” until defendant after having seen plaintiff use it over this period (and from 1941 to 1954 while defendant was farming the land) asserted a hostile right to plow this roadway and prevent plaintiff from using it. Our conclusion is that the evidence warranted a finding of an easement by prescription in plaintiff to this roadway and that the court reached the correct result in ruling plaintiff had an easement for ingress and egress to his land over this roadway.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Mitchell V. CRONE, Appellant.
    No. 51313.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Charles D. Matthews, Sp. Asst. Atty. Gen., Sikeston, for respondent.
    Charles Shaw and L. L. Bornschein, Clayton, for appellant.
   HYDE, Presiding Judge.

Defendant, charged under the habitual criminal statute, was found guilty of carrying a concealed and dangerous weapon upon his person. Secs. 556.280 and 564.610; statutory references are to RSMo and V.A. M.S. Defendant was found guilty by the jury and sentenced by the court to imprisonment for two years and has appealed. No brief has been filed here so we consider all assignments in his motion, for new trial in accordance with Criminal Rule 27.20. (See also Rule 28.02, V.A.M.R.)

Two issues are presented by defendant’s motion, namely, his claim that his motion for acquittal at the close of all the evidence should have been sustained; and his claim of prejudicial error in permitting the prosecuting attorney to cross-examine and impeach the State’s witness, William Heath.

Our view is that the testimony of the State’s witnesses (defendant offered none) was sufficient to sustain-a finding that defendant had a revolver concealed about his person on the occasion involved. A tavern employee, Sue Perry, testified that defendant and his brother Dick had been in the tavern earlier and Dick had the gun. She told him “he couldn’t have it in there so he walked out and put it in his car.” Defendant came back about 2:00 P.M. with his brother and Bill Heath, got into an argument with Benny Thompson, drew a gun and said he would shoot him. Although she said she first saw the gun in defendant’s hand, she testified: “Q Where was the gun at the time he drew it? A Well, it was down in his pants. Q Was any portion of the gun visible at the time it was drawn or just before it was drawn? A Not before it was drawn. (She said it was drawn from his left side.) * * * (On cross-examination) Q Now, actually, Sue, you didn’t see Mitchell Crone take a pistol out of his belt, did you? A No. (On redirect) Q Did you notice Mitchell (defendant) as he was standing in the 21 Club shortly after he had come hack? A Yes. Q Was there a bulge of any sort around Mitchell Crone’s belt ? A I saw a bulge as he came in. Q Had that bulge been in there prior to his leaving at around one o’clock? A No. (On further cross-examination) Q All right. Now, you at no time saw a gun sticking out of his belt or out from under his T-shirt or anything else, did you? A There was something sticking under his T-shirt.” (Parenthetical inserts ours.)

Benny Thompson joined defendant and his companions at a table where they were all seated. He said defendant started arguing with him; “about this time my father and brother arrived, so I turned and started talking to my brother, and I happened to glance back over at Mitchell and he was fumbling in his belt, and all of a sudden he come up with the gun and he pointed it down at my chest just about this position (indicating) across the table from me. He told me, he says, T am going to kill you with that,’ * * *. Q (By Mr. Matthews) From where had he extracted the gun or pulled the gun ? A From under his belt or under his pants somewhere. * * * Q (By Mr. Matthews) Were you able to see the gun or were you able to see the waist of Mr. Crone prior to the time he pulled the gun? A No, I was not. * * * Q And then the next thing you know you saw this gun and it was above the table? A It was above the table in his hand, yes.” A Sikeston police officer found defendant lying on his back unconscious outside the tavern after 3:00 P.M. and “could see a gun down in his belt.” (Defendant had been “knocked out” by Heath who said he did it to keep defendant out of trouble.) The officer, testifying without objection, said: “He had on an undershirt, T-shirt, and it was just off of it where I could see under his belt.” He took the gun (a thirty-eight Smith and Wesson) and kept it until he produced it at the trial.

In State v. Bordeaux, Mo.Sup., 337 S.W.2d 47, 49, we said, citing Missouri cases and Annotation, 43 A.L.R.2d 492, 510, 512: “Generally, the test of concealment is whether the weapon is so carried as not to be discernible by ordinary observation.” Our conclusion is the evidence in this case meets this test. As to intent to conceal, which defendant claims was not shown, we said in State v. Mulconry, Mo.Sup., 270 S.W. 375, 378, quoting from State v. Carter, 259 Mo. 349, 359, 168 S.W. 679, 681: “ Where the state’s evidence shows that the weapon is concealed, it would, no doubt, be a sufficient prima facie showing that he intended to conceal the same because from such proof it might well be inferred or presumed that the person intended to do that which, in fact, he did do, * * *.’ ” We so hold and therefore hold the court properly overruled defendant’s motion for acquittal.

As to defendant’s claim of error concerning the examination of Heath, citing State v. Castino, Mo.Sup., 264 S.W.2d 372, 375, the following occurred: “Q (By Mr. Matthews) Had you seen the gun before the time you saw it at the table ? A The first time I seen it Mitchell had it in his hand with the hammer back and he said — told his brother something about it needed cleaning or something to that words. I forget how it was. Q Mr. Heath, have you discussed this case with me before? A Yes, sir. Q Have you ever stated other than this as to the gun? A Not under oath, no. MR. SHAW: Wait just a second. I am going to object to that as improper examination of his witness. THE COURT: Overruled. Let him answer. MR. MATTHEWS : Answer the question, please, sir. A Yes, sir, I have discussed it with you.”

Heath was then asked if he had told the prosecuting attorney he had seen the gun earlier when he was driving with defendant and he said he had not. At that time, defendant’s counsel stated an objection to the State impeaching its own witness and the court did not permit the next question, concerning defendant making a statement about using the gun, instructing the jury to disregard it. There were no more questions by the State until after cross-examination of Heath by defendant’s counsel, during which Heath said defendant’s brother put the gun on the table and defendant picked it up off the table before he pointed it at Thompson. On redirect examination, after an objection by defendant’s counsel to a question as to where Heath previously held conversations with the prosecuting attorney, the following occurred: “THE COURT: Did I understand you to previously testify that you have told the same thing here that you told Mr. Matthews before? THE WITNESS: I didn’t tell him, nothing under oath. THE COURT: That is not what I asked you. THE WITNESS: That is all I got to say. I didn’t tell him nothing under oath.” Thus unwillingness to testify frankly was displayed by Heath even on the court’s questions.

Thereafter, Heath said the prosecuting attorney had talked to him three times before the trial. On further cross-examination, by defendant’s counsel, Heath said: “He told me to be at the trial at a certain, certain date and he told me what questions he would ask me and what answers I should give him.” Heath again during this cross-examination said the prosecuting attorney told him what answers he wanted. On further redirect Heath reitérated that the prosecuting attorney told him what to say in court. Heath was then asked if he knew what perjury was and upon objection the court ruled: “We will sustain the objection to that line of questioning and proceed from there.” There was no further examination of this witness.

In State v. Shepard, 334 Mo. 423, 67 S.W.2d 91, 95, we said: “But where the witness is unwilling or unfriendly, especially if he be one whose testimony is necessary or important, the court in the exercise of a sound discretion may permit the asking of leading questions amounting to a cross-examination. This is particularly the case if the state is surprised by the witness’ being unexpectedly hostile.” See also State v. Palmer, Mo., 306 S.W.2d 441, 443; State v. Shelton, 351 Mo. 799, 174 S.W.2d 202, 205; State v. Taylor, Mo.Sup., 324 S.W.2d 643, 648, 76 A.L.R.2d 671. Unwillingness and hostility of this witness sufficiently appeared to warrant our ruling that there was no abuse of discretion in permitting such examination as was made and we so hold.

We have examined the record as required by our Rules 28.02 and 28.08, V.A.M.R., and find it sufficient with respect to those matters therein specified.

The judgment is affirmed.

All concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Raymond BALDWIN, Appellant.
    No. 51439.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Gene B. Rosen, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Pinnell & Monroe, by W. H. Pinnell, Mo-nett, for appellant.
   HOUSER, Commissioner.

Defendant Raymond Baldwin, convicted by a jury of burglary and1 stealing and sentenced to the penitentiary, has appealed, raising only one point: error in the admission of certain testimony relating to a rifle, one of the articles allegedly stolen.

A brief résumé of the state’s evidence follows :

Joe Landreth, manager of a lumberyard at Purdy, testified that he owned a .22 calibre Western Field rifle and a television set, both of which were behind the counter in the lumber company office building on the night of September 30, 1963 when the office was closed at the end of the business day. The next morning, October 1, the television set and rifle were missing. There were marks on the office door, which had been pried open. Mr. Landreth identified the rifle produced in court, State’s Exhibit No. 2, as property of his in the building on on the night of September 30, 1963. Defendant’s counsel, referring to State’s Exhibit No. 2, admitted in open court that “this is Mr. Landreth’s rifle and also his television set.”

Lorene Owens testified that defendant, defendant’s brother Jim and she drove to Purdy the evening of September 30, 1963; drove around town and parked by the railroad track at a place where there were no lights. She stayed in the car. The two men walked down the railroad track. They were gone quite a while. When they returned they got in the car, drove around to a place where a television set and a rifle were “setting in the weeds,” and loaded the set and the rifle in the back seat of the car. Jim said “I have got you a television.” The men agreed that Jim should take the television set and Raymond should take the rifle. Jim took the television set to Lorene’s apartment in Springfield. Later Raymond told Lorene that he had taken the rifle to his brother’s, referring to Donald Baldwin. Defendant made no objection to the testimony that he had taken the rifle to Donald’s.

The next witness, a police officer, in relating how he came into possession of the rifle, stated that he went to the home of Donald Baldwin and knocked on the door; that Donald opened the door,

“ * * * and at that time I told him— n
“Mr. Pinnell: I object to that, Your Honor, what he said to him.
“The Court: Objection overruled.
“A. At that time I told him, Donald F. Baldwin, that I wanted the rifle which Raymond Baldwin had left with him.
“Mr. Pinnell: Your Honor, I object again. That has not been admissible as to what this officer told some third person outside of the presence of this defendant. That is highly prejudicial.
“The Court: Well, the objection will he overruled.
“A. Donald Baldwin—
“Q. You get back on the track again. You say you asked Donald F. Baldwin for the rifle that Raymond Baldwin had left there, is that correct?
“A. That is right. I told him I wanted it.
“Q. Go ahead.
“A. And Donald F. Baldwin said, ‘O.K.; come on in.’ And I walked into the house behind him, and Donald F. Baldwin went directly to a closet in the house and took this rifle out of the closet and turned it over to me. At that time, I asked him if he had bought this rifle or had knowledge of it being stolen, and he said ‘No,’ that Raymond wanted to leave it with him for a while.
“Mr. Pinnell: I object to that, and move for a mistrial at this time.
“The Court: That last remark will be stricken, and the jury will disregard it. The motion for mistrial will be overruled.”

There was further evidence that defendant was not present at the home of his brother Donald at the time this occurred.

The officer turned the rifle over to the sheriff. State’s Exhibit No. 2 was identified by the sheriff as the rifle received from the police officer.

A preliminary examination of the police officer outside the hearing of the jury was conducted prior to the introduction of the testimony above quoted. At the conclusion of that hearing the court overruled defendant’s objection to the admission of this testimony on the ground that it would not show any connection with the defendant; would not show that defendant placed the rifle in his brother Donald’s home and would be prejudicial. On appeal the objection is that a statement made in the absence of one accused of crime is incompetent and inadmissible as hearsay testimony; that the officer’s statement about the gun being left with Donald was a conclusion on the part of the officer, which prejudiced defendant — that once the officer was permitted to make the statement the jury must have been convinced that the gun was stolen, that it had been stolen by defendant and that defendant had placed the gun in his brother’s house.

Appellant’s objection on the ground of hearsay is directed at the testimony of the officer that he stated to Donald that he wanted the rifle which Raymond had left with him. The objection is not to the testimony of the officer that Donald, in response to the statement and suggestion of the officer that he wanted the rifle that Raymond left with Donald, produced a rifle and turned it over to the officer. Technically speaking it is the combination of the two — the provocative statement of the officer containing the accusatory statement, followed up by the act of Donald (producing the rifle) as a result of the stimulus of the statement — that constituted hearsay evidence of the fact that Raymond had left the rifle with Donald. Donald’s act, provoked by the officer’s statement, constituted an unsworn out-of-court declaration by Donald of the truth of the fact that Raymond left the rifle with Donald. Assuming for the purpose of this appeal that defendant’s objection on the ground of hearsay is directed not only at the officer’s statement but also at Donald’s act in response thereto, the admission of this hearsay evidence constituted harmless error under the doctrine of curative admissibility. The state’s second witness, Lorene Gwens, testified that Raymond stated to her that he left the rifle with his brother Donald. Her sworn testimony to this effect came in without objection. This fact was not controverted by the testimony of any witness. This fact having been amply supplied and otherwise shown by the witness Owens, defendant was not harmed by the subsequent admission of evidence of the same fact given by the officer and Don-aid. “The admission of hearsay evidence is not prejudicial * * * where the matter as to which the hearsay evidence was admitted * * * was admitted, or not disputed, by accused, or was established by other evidence which was competent or was admitted without objection, contradiction, or controversion.” 24B C.J.S. Criminal Law § 1915(16). In State v. Hall, Mo.Sup., 231 S.W. 1001, 1004 [5] “A witness was permitted to state that Martin Hall told him the gun, a .22 Winchester rifle, which the evidence indicated was at the place where Martin Hall and Floyd Hall lived, was Martin Hall’s gun. This was objected to because hearsay. It had been otherwise shown that Martin Hall had a gun which the evidence tends to show was kept at the place where his sister, Mrs. Alloyd, and the defendant lived, so that the defendant was not harmed by the introduction of the testimony.” The same principle was adverted to in State v. Pollnow, Mo.Sup., 14 S.W.2d 574, 575 [3]: “Appellant complains of hearsay testimony admitted on behalf of the state over his objection. The police officer was permitted to say what Peikert said to him in relation to Mills bringing in the machines and explaining how they worked. This same evidence was sworn to by Peikert himself. He testified that Mills brought in the machine and explained how it worked. Other tests were made by the officers, to show how the machine worked; so that evidence was amply supplied in any event. * * * 99

An examination of the record as required by Criminal Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Cecil Clayton LILLIBRIDGE, Appellant.
    Nos. 51364-51368.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.

      Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Chester A. Love, Clayton, Paul H. Schramm, Clayton, of counsel, for appellant.
   WELBORN, Commissioner.

Cecil Clayton Lillibridge appeals from judgment of the Cole County Circuit Court in five cases wherein that court dismissed, without a hearing, his petition under Supreme Court Rule 27.26, V.A.M.R. to vacate sentences and judgments previously imposed by the circuit court.

The petition alleged that on May 29, 1960, appellant was an inmate in the Missouri State Penitentiary for Men at Jefferson City and had been so since 1953; that, on May 30, 1960, appellant was apprehended and confined in the Cole County Jail and within several days was charged with five criminal offenses: escape,, and two charges each of larceny of a motor vehicle and robbery in the first degree.

“3. That within several days of the apprehension of the defendant on May 30, 1960, this defendant waived preliminary hearing as to five charges and was again confined in the Missouri State Penitentiary and was placed in solitary confinement in Section E-3 of a building designated as E Hall.

“4. That this defendant remained in solitary confinement and confined as here-inabove alleged until he was taken to the Cole County Circuit Court on August 15, 1960.

“5. That from the date of this defendant’s apprehension on May 30, 1960, up to the date of this defendant’s appearance in court on August 15, 1960, and while so confined in solitary confinement, this defendant saw no attorney nor did he talk to any friends or relatives.

“6. That by reason of these facts here-inabove stated, this defendant did not have the time nor the opportunity to consult with any friends or relatives nor with any attorney which is in violation of statutes and rules hereinabove set forth.

“7. That this defendant having been confined in solitary confinement for a period of two and a half months prior to his being taken into court which confinement for such period of time has an obvious psychological affect (sic) upon any inmate, this defendant could not and did not intelligently waive his right to have counsel represent him before entering his plea of guilty before this court on August IS, 1960 and that at the time of entering the plea of guilty and advising the court that he did not wish a lawyer to represent him this defendant was under the psychological effects of solitary confinement, the defendant’s waiver of his right to counsel was prompted not by any intelligent decision on his part but only by the desire on the part of the defendant to be released from solitary confinement.

“8. The failure of the court to appoint counsel for this defendant resulted in an injustice to the defendant because of the gravity of the offenses with which this defendant was charged, in that this defendant was charged with five separate and distinct criminal offenses and not being an attorney nor learned in the law, did not fully comprehend said charges.”

In each case the trial court entered judgment dismissing the petition for the reason that the “Sentence and Judgment refute the petitioner’s allegations and such recitals cannot be attacked in this proceeding.”

The records of the proceedings in the trial court show that, on June 20, 1960, informations were filed in the Cole County Circuit Court, charging appellant with the five offenses referred to in his petitions. On August 15, 1960, appellant appeared in the Cole County Circuit Court, without counsel. General David Parrish, also charged with escape and jointly with appellant on the two robbery and two motor vehicle larceny charges, also appeared.

The information charging Parrish with escape was first read, whereupon the following colloquy occurred:

“THE COURT: There are several cases here, and so let me say to both of you, that before you are required to say whether you are guilty or not guilty you have the right to consult with some friend, or friends, about the charges against you. And this applies to all the cases against you.
“You also have the right to be represented by a lawyer. If you cannot employ a lawyer, yourself, I will appoint a lawyer for you who will serve you without any pay or charge.
“Do both of you understand that?
“DEFENDANT PARRISH: Yes, sir.
“DEFENDANT LILLIBRIDGE: Yes, sir.”

The information in each of the five charges against appellant was read. At the conclusion of the reading of each, the court inquired of appellant whether he understood the nature of the charge, and, in each instance an affirmative reply was given by appellant. After the reading of each information, the court also asked appellant whether he wanted a lawyer and appellant replied in the negative. Appellant further pleaded guilty on each of the five charges.

Following this procedure, the following transpired:

“THE COURT: Now, I want you to listen to me very carefully, because I want no misunderstanding about this, and I want it never to be said, in the future, that we came in here and had a hurried up proceeding and you got a sentence which you didn’t dream you would get.
“Each of you has very serious charges against you, and I think they merit serious treatment by this court. For when you get out of one of these institutions and you commit other offenses in this county, and you terrorize our citizens, this court has to do something about it. This court has got to send a message out to that penitentiary that we are not going to tolerate this stuff in this community.
“So, I say to you, again, if you want me to appoint a lawyer and you want to stand trial, I will appoint a lawyer for you, of course. You tell me — or do you want me to go ahead and impose sentence? You tell me, what you say governs. If you want to stand trial and you want a lawyer, you are going to get a lawyer. If you don’t, I am going to act and I am not going to give you a slap on the wrist, I promise you that. And I am telling you this so you will know in advance, not saying you came in here and saying you believe you had been treated like little, bad boys.
“DEFENDANT PARRISH: I see no reason to delay, Your Honor.
“THE COURT: What do you say?
“DEFENDANT LILLIBRIDGE: I don’t see any reason, either.
“THE COURT: All right, we understand each other, don’t we?
“DEFENDANT PARRISH: Yes, sir.
“DEFENDANT LILLIBRIDGE: Yes, sir.”

Appellant was then sentenced to five years for escape, five years on each of the motor vehicle larceny charges and twenty-five years on each of the robbery charges.

On this appeal, appellant contends that the trial court erroneously dismissed his petitions without affording him a hearing. He contends that, if he had been permitted to have proved his allegation that he was in solitary confinement for 2Y2 months immediately prior to his arraignment and waiver of right to counsel, the evidence “would have shown defendant suffering under such a psychological state as a result thereof as to authorize a finding that defendant was not competent to intelligently waive his right to assistance of counsel, * *

Well before Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, Missouri recognized the right of a defendant to assistance of counsel in criminal proceedings and the obligation of the courts to protect such right. § 18(a), Art. I, Constitution of Missouri, 1945, V.A.M.S.; § 545.820, RSMo 1959, V.A.M.S.

Supreme Court Rule 29.01 provides:

“(a) In every criminal prosecution in any court of this State, the accused shall have the right to appear and defend the same in person and by counsel. * * * If, after being informed as to his rights, the defendant indicates his desire to proceed without the benefit of counsel, and the court finds that he has intelligently waived his right to have counsel, the court shall have no duty to appoint counsel unless it appears to the court that, because of the gravity of the offense charged and other circumstances affecting the defendant, the failure to appoint counsel may result in injustice to the defendant.”

Although we find no cases in which relief has been granted under Supreme Court Rule 27.26 because of the absence of intelligent waiver of right to counsel, our cases infer that waiver, not intelligently made, of such right would be grounds for setting aside a judgment of conviction. State v. Glenn, Mo.Sup., 317 S.W.2d 403; State v. McDonald, Mo.Sup., 343 S.W.2d 68. Mere conclusionary allegations in a petition for relief under Supreme Court Rule 27.26, setting out no facts which would authorize a finding that defendant was not competent to waive intelligently his right to assistance of counsel, are insufficient to require a hearing on such petition. Likewise, a petition based upon allegations which are refuted by the record may be dismissed without a hearing. State v. Glenn, State v. McDonald, supra.

There can be no doubt that the able trial judge conscientiously endeavored to protect the appellant’s right to assistance of counsel. The defendant had been confined in the penitentiary since 1953, so he was not, at the time of the 1960 proceedings, entirely unfamiliar with criminal proceedings. The trial court carefully and repeatedly offered to appoint counsel and his offer was rejected. Before finally imposing sentence, he let the appellant know that he considered the offenses serious and intended to act accordingly and, in effect, offered to permit withdrawal of the guilty pleas in order to permit defendant to consult counsel whom the court offered to appoint. When the appellant again declined the offer, the trial court, by its judgment, found that the appellant “was mentally able and was sufficiently informed to decide his need for counsel.”

Appellant here would refute this conclusion by the bare allegation that his 2(4 months’ period of solitary confinement had produced such “an obvious psychological effect” upon him that his waiver of right to counsel was not an intelligent decision, but was prompted only by the desire of defendant to be released from solitary confinement.

In our opinion that allegation, in view of the record of the proceedings at the time of entry of the pleas of guilty and sentencing, coupled with the trial judge’s personal knowledge of the facts and circumstances (see People v. Cox, 141 Cal. App.2d 158, 296 P.2d 72, 74 [7]), was insufficient to require a hearing on appellant’s 27.26 petition. The record showed that the court fully explained to the appellant his right to counsel and offered to appoint counsel for him. The appellant clearly and positively exercised his choice not to avail himself of such right. The trial court was satisfied that appellant was aware of the consequences of such choice by him. He would invalidate the proceedings on the basis of subjective considerations which entered into his making such choice. Rule 27.26 is not designed to permit a defendant who exercises his own judgment in waiving his right to counsel to nullify the proceedings when the results of such choice are eventually unsatisfactory to him.

Whether or not a defendant’s waiver is intelligent is primarily a matter for the trial court, who has an opportunity to observe the defendant. When, after the trial court has made full and adequate explanation to the defendant of his rights, the trial court concludes that the defendant understands what he is doing and is aware of the effect of his choice, something beyond the allegation here presented is called for in order to require a hearing on the issue of whether or not the election of the defendant was intelligently made. State v. Glenn, State v. McDonald, supra.

The allegation that appellant saw no attorney and talked to no friends or relatives during the 2(4 months that he was in solitary confinement affords no basis for relief in this proceeding. There are no allegations which would make applicable the “twenty hours” statute (§ 544.170, RS Mo 1959, V.A.M.S.) invoked by appellant. The record clearly shows that the trial judge repeatedly afforded appellant an opportunity to consult an attorney or friends before accepting his pleas of guilty so that there is no basis for any charge that § 558.-380, RSMo 1959, V.A.M.S., also invoked by appellant, was violated. There is no allegation that appellant requested an opportunity to consult with either an attorney or friends. Furthermore, the situation is wholly different from that presented in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, relied upon by appellant.

The judgment is affirmed.

HOUSER and HIGGINS, CG, concur.

PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur.