author: BARRETT, Commissioner. STORCKMAN, P. J., STORCKMAN, Presiding Judge EAGER, Judge

text:
    STATE of Missouri, Respondent, v. Sharon KINNE, Appellant.
    No. 49480.
    Supreme Court of Missouri, Division No. 2.
    Oct. 21, 1963.
    Motion to Transfer to Court En Banc Denied Nov. 11, 1963.
    James Patrick Quinn, Martha Sperry Hickman, Quinn, Peebles & Hickman, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Theodore C. Beckett, Special Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

A jury has found that Sharon Kinne shot and killed her husband, James Kinne, that she was guilty of murder in the first degree and of necessity therefore fixed her punishment at life imprisonment, RSMo 1959, Secs. 559.010, 559.030,. V.A. M.S. Upon the trial of her case the state waived the death penalty and for that reason over the appellant’s objection, the court called a panel of thirty-four jurors rather than a panel of forty-seven, thus of course reducing the number of challenges by the defendant. The statute applicable to Jackson County and a defendant’s peremptory challenges provides that “If the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of twenty, and no more.” RSMo 1959, Sec. 546.180, subd. 2(1) (a), V.A.M.S. At the January 1963 Session of this court it was decided, the punishment for first degree murder being “not less than life,” that because of the refusal to call a panel of forty-seven jurors her conviction would necessarily have to be reversed. State v. May, 168 Mo. 122, 67 S.W. 566; State v. Yandell, 201 Mo. 646, 100 S.W. 466; State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079. The court was satisfied with that part of the opinion and it is not necessary to elaborate upon that phase of the appeal, it is sufficient to summarily say that for failure to follow the plain mandate of the statute and call a panel of forty-seven jurors the judgment must be reversed and the cause remanded for a new trial. After adoption of the opinion, however, a rehearing was granted as to a single specific matter, state’s witness John Boldizs and whether the state prejudicially erred in its examination of him, — hence this opinion upon reassignment of the cause.

Boldizs was called as a state’s witness and after cursory questions establishing that he too lived in Independence, was a service station attendant, married, and had known Sharon Kinne since high school days in 1956, he was asked whether he had had sexual relations with Sharon before and after her marriage — and his answer to both questions was “Yes.” Then there were these questions and answers on direct examination :

“Q. Has she ever discussed her husband with you? That is, James Kinne ?
“A. Yes.
“Q. Was there anything- ever said about your killing James Kinne for her?
“A. Yes, sir, in a joking way. (Emphasis supplied.)
“Q. What do you mean by that?
“A. Well, we was parked one night, and, I made a comment to her that I’d like to carry her off, and she said, ‘Well, if’ — you know, I’d like to carry her off if it wasn’t for her husband, and she said, ‘Well, I’ll just give you a grand and we’ll just get rid of him.’ ”

Then the prosecuting attorney, without stating his purpose or reasons, and without attempting to refresh Boldizs’ memory or avowedly to lay a foundation for impeachment asked this question:

“Q. Mr. Boldizs, you gave the Sheriff’s office a statement in connection with the thousand dollar offer, did you not?
“A. (Nodding head).”

There were, of course, timely and specific objections throughout by defense counsel, objections to cross-examination and impeachment “of their own witness,” objections of “no surprise,” “that his evidence is not unfavorable to the State,” that there was “no entrapment” and “no positive evidence given against them,” that Boldizs was not a “hostile witness” and there was “no entrapment.” And the prosecuting attorney continued:

“Q. And you also testified before the grand jury on June 27, 1960.
“A. Yes, sir.
“Q. And in your statement to the Sheriff’s office, and in your statement before the — testimony before the grand jury, did you tell either of those that this was in a joking manner?

It was then developed that in a deposition taken by the appellant “last Friday” he had said “the conversation (with Sharon) was in a joking manner.” At that point state’s counsel handed the court a copy of Boldizs’ testimony before the grand jury on June 27, 1960 and the court said “in view of that” it was proper for the state to cross-examine the witness. Defense counsel said, “Do I understand that you are ruling, Your Honor, is to cross-examination, and not to impeachment ? ” The court replied, “Why certainly.” But the state proceeded and established what Boldizs had said in his deposition:

“Well, we was parked out here at this particular spot off Phelps Road, and we was out there jacking around, and we was making out a little bit, and as near as I can recall, it come ttp — we was like making out, and I said, ‘Man, like I’d like to carry you off if you wasn’t married’ and she said, ‘Well, I’ll just give you a grand, you can bump off my old man,’ and I said, ‘No, man, like we won’t do that’ and we laughed about it, and I said, ‘Well, I’ll find somebody for you’ and this jazz, and then we proceeded to make out.”

And then the state read to Boldizs from his grand jury testimony concerning a conversation a week before Sharon’s husband was killed:

“Q. Was there anything unusual ?
“A. Yes, sir. It was approximately two weeks to four weeks before his death, we was talking, parked, we were talking about her husband I think, and she told me they had problems. She said, ‘Would you kill my husband for $1,000?’ And I said, ‘No, hell no.’ She said, ‘Do you know somebody that would?’ And I said, ‘Yes, I know somebody.’ She said, ‘If you find somebody, let me know.’ I said, ‘Yes,’ but’I never did.
******
“Q. Do you have a feeling she was serious in her request?
“A. I believe so now.”

Then as to these questions and answers before the grand jury state’s counsel asked Boldizs whether the questions were asked and these answers given. He answered “Yes” but asked state’s counsel if he could “interrupt” and he said, “As you probably know, they pressured me quite severely through this thing.” He explained that at the time “the Jones case was going strong,” police officers were threatening to charge him with the Jones murder, and he said “at that time I would have signed anything they put up there as long as it said I didn’t kill Patricia Jones.” And then the state’s attorney asked Boldizs about “picking Sharon up” once (probably in connection with the Jones case) and “questioning her for the benefit of the Sheriff’s office” and there were these questions and answers:

“Q. And during that conversation didn’t she tell you not to tell the sheriff’s office about this thousand dollar,■this previous—
* * * * * *
“Q. Did she ask you not to tell the sheriff’s office anything?
“A. She said I didn’t have to say anything.
“Q. And she told you not to let them bully you?
“A. That is right.”

The state then established that Boldizs had been “a witness in the other trial” (probably referring to the Jones murder trial) and that prior to that trial “opposing counsel” had taken a question and answer statement from him “And I wasn’t present.” Then the state established that “30 or 40 days” ago Sharon’s counsel had taken another statement from him “And again you did not advise the prosecutor’s office ? ” And then the prosecutor examined Boldizs as to whether in the statements procured by der fense counsel he had said anything- about “wanting to carry her off,” and there was this question and answer:

"Q. And so you gave him a statement and simply volunteered the information that this was said in a joking manner ?
“A. Yes.”

And then there were these questions and answers:

“Q. Do you recall telling Donald Boone (a truck driver and another state’s witness) that Sharon had offered you a thousand dollars to kill her husband?
* * * * * *
“A. Yes, sir.
“Q. You did tell him?
“A. Yes.
“Q. Did you tell Donald Boone that it was a joking manner?
“A. I don’t remember, it has been too long ago.”

On redirect examination by the state another subj ect was introduced and there were these questions and answers:

“Q. When you testified here last summer, you testified that you had given them (defense counsel) a statement, they had a court reporter take it down, that you did not tell them the truth because you didn’t consider it any of their business—
“A. Yes, sir—
******
“Q. So the transcript that Mr. Quinn has cross-examined you on, that is a copy of the statement that you gave that you said was a bunch of lies because you didn’t consider it any of their business ?
“A. The thing that you are referring to is they asked me about a tape recording and I told them ‘no.’
******
“Q. But you did lie to them at that time?
“A. Yes, sir.”

State’s counsel then returned to Boldizs’ sex relations with Sharon, before and after her marriage, and whether “Sheriff’s deputies had accused you of murder” and there were these additional questions and answers as to whether Sharon had offered him money to kill, her husband.

“Q. The statement that you made that she had offered you a thousand dollars to kill her husband, or if you wouldn’t do that would you find somebody to kill him, that was, a voluntary statement on your part, wasn’t it?
“A. Yes, sir.
“Q. No one else knew about that until you told them?
“A. Don Boone knew about it.
******
“Q. So you voluntarily told them?
“A. Why sure.
“Q. And is it your testimony that you told them that she made that statement in a joking manner?
“A. Pardon?
“Q. Did you tell the Sheriffs that she made that statement in a joking manner ?
“A. I think so. * * * I am almost certain I did.
* ❖ * * #
“Q. Did you tell the grand jury that this was made in a joking manner?
“A. I am almost certain it was brought up.”

There was further cross-examination and impeachment by the state of its witness Boldizs, but the quoted excerpts are sufficient for the purposes of illustration and to place in context the questions briefed and argued by the parties. The appellant • contends that Boldizs was not an adverse or hostile witness, that there was no surprise or entrapment in his testimony and that therefore the court in permitting the state to thus cross-examine and impeach him prejudiced her right to a fair trial. In this connection it is said that in permitting this cross-examination and impeachment there was an “unfair and double advantage. It permits the inference that, not only was the witness telling the truth in the first place and is now lying, but, that the change in his testimony was caused by the opposing party and consequently, the opposing party is guilty of suborning perjury on top of whatever else (she) may be charged with.” The appellant advances as a reason against the adoption of the rule contended for by the state that “Counsel for the defense were put in the position of defending the State’s own witness as well as themselves. No more prejudicial situation could have been created against this defendant.” In addition to her argument against the indicated examination of the witness, the appellant also urges that the court prejudicially erred in refusing to give her proffered instruction which told the jury that “you are not to consider the statements and testimony of the witness Boldizs given before this trial as evidence of the facts stated in them but only in reference to the truth or falsity of this witness in this trial.” In contrast to these arguments the state makes the contention that the court “properly allowed the prosecution to cross-examine its witness John Boldizs and all of his testimony was admissible in the trial as substantive evidence.” And, of course, if Boldizs’ various statements were admissible as substantive evidence, the court was not bound to give an instruction limiting either their purpose, force or effect.

In view of these contentions, particularly in view of the state’s argument, it is necessary to note in passing certain fundamental matters relating to witnesses and evidence that are not involved upon this record and this appeal. If a witness in either a civil or a criminal case becomes obviously antagonistic or unwilling, the party calling the witness, may in the court’s discretion, ask the witness leading questions. State v. Shelton, 351 Mo. 799, 174 S.W.2d 202; State v. Palmer, (Mo.), 306 S.W.2d 441. If the witness becomes “hostile” and contradicts “previous statements and testimony,” the court may permit the party calling him to cross-examine the witness. State v. Bell, 359 Mo. 785, 223 S.W. 2d 469. This latter rule was most recently considered by this division of the court in State v. Taylor, (Mo.) 324 S.W.2d 643, 647-648. It should be noted in that case, however, that when cross-examined or led the witness testified to what he had seen or knew, to wit, that on Saturday before the appellant’s arrest for an assault he had seen the appellant and “at that time (he) had sticking in his belt a revolver with a brown handle similar to the assault weapon.” But of greater significance here is this statement by the court: “The cases the defendant relies on relate to the impeachment by the state of its own witness and are not helpful on the facts of this case.” Another facet of these general rules is that as to a reluctant or hostile witness the court may properly permit a prosecutor “to exhibit to certain witnesses for the state copies of their testimony before the grand jury for the purpose of refreshing their memories.” State v. Riles, 274 Mo. 618, 623-624, 204 S.W. 1, 2.

But as indicated, these problems are not involved upon this record. In the quoted excerpts there was obviously no attempt to refresh Boldizs’ memory, and no indication that he was reluctant or hostile. And the state does not claim that he became an “adverse” witness or that he was “hostile” as that term is defined in the cases. Nor was the state under a legal duty to call Boldizs as its witness (58 Am.Jur. Sec. 795, p. 441), in this jurisdiction the state is not compelled to call all persons who may have witnessed a homicide or who may have some knowledge of the offense. State v. Eaton, 75 Mo. 586; State v. Billings, 140 Mo. 193, 41 S.W. 778. Furthermore, in both its briefs and oral argument, the state candidly admits that it was not “surprised” by Boldizs’ testimony on direct examination and it is not claimed therefore that there was an entrapment. In fact the state’s contention here is a tacit admission of the appellant’s claim, at least under the state’s argument the appellant’s contention is beside the point because the state claims that in any event “all of his testimony was admissible in the trial as substantive evidence” even though introduced on cross-examination and in impeachment of its own witness.

In approaching the state’s candid position it is not possible, however, to entirely ignore the appellant’s contention and a thoughtfully established precedent. A leading case is State v. Bowen, 263 Mo. 279, 172 S.W. 367 (and earlier State v. Bowen, 247 Mo. 584, 153 S.W. 1033). In that case the appellant had been convicted of rape upon his stepdaughter, “under the age of 14 years.” The appellant’s brother-in-law was called as a state’s witness and after testifying to certain facts and statements by the defendant was asked whether he remembered any other statement by the defendant in connection with the child’s death. He answered, “If he said anything else, I don’t remember it.” Thereupon state’s counsel inquired, “Did you testify before that grand jury?” He answered that he had and the prosecutor proceeded to read to the witness from his grand jury testimony in which he had said “and he made a confession to me by saying, T am responsible for it,’ and didn’t accuse any other party.” It was held that the witness had not become “adverse” and that it was prejudicially erroneous to thus contradict him with his grand jury testimony. The court reviewed all the general rules but emphasized these reasons for reversing the judgment: “There are several reasons why a witness who has not become adverse should not be so contradicted. The first is this: Such contradictory statements are never used for any purpose except to impeach the witness. They are not to be considered by the triers of fact for any other purpose. On what theory is a witness to be impeached when he has merely failed to testify? It has been said that the contradiction of such a witness is the destruction of a straw man erected by the party himself, for its effect upon the jury. Another reason is that such a method of contradiction, if it did not open up the floodgate for the admission of hearsay evidence, would go much too far in that direction.” This court, along with all others, has usually advanced as the basis for the rule against a party’s calling and then impeaching his own witness the traditional reason that in calling the witness the party vouches for his credibility and should not therefore be allowed to impeach him merely because his testimony proves disappointing. But “(i)t is probable that the true rationale of the rule, as it is generally applied, is that ‘the party (calling the witness) ought not to have the means to coerce his witness’ into testifying as he desires because he has the power to injure him as a witness if he testifies unfavorably or to make him a good witness in the event his evidence does not prove to be disappointing. 3 Wigmore, Evidence, Sec. 899. In short, the true purpose of the rule is to protect the witness against coercion and abuse.” Crabtree v. Kurn, 351 Mo. 628, 646-647, 173 S.W.2d 851, 858-859. The rule was applied in rather bizarre if not dramatic circumstances in another leading case on the subject, State v. Gregory, 339 Mo. 133, 96 S.W.2d 47. There the charge was robbery and two state’s witnesses having been sentenced to be executed refused to testify at all and the prosecutor read their testimony from a former trial. The court reexamined all the cases, reaffirmed the indicated rule as “correct in principle” and held that “prejudicial error was committed against the appellant.” State v. Patton, 255 Mo. 245, 164 S.W. 223, illustrates in detail exactly how the state may and may not employ grand jury testimony to refresh the memory of its faltering or vacillating 'witness and there was no attempt here by the state to follow and employ those suggestions.

The plainest exposition and application of all the relevant- rules is contained in Woelfle v. Connecticut Mutual Life Ins. Co., 234 Mo.App. 135, 112 S.W.2d 865. There the plaintiff sought to recover the accidental death benefits of a life insurance policy. To prove her husband’s accidental death the plaintiff called as a witness Block (introduced his deposition), her husband’s golfing partner the day he was stricken. When asked what happened, Block said “there was nothing unusual that I know except we lost our ball.” On the pretext of refreshing Mr. Block’s memory plaintiff’s counsel inquired whether he had seen Dr. Woelfle fall- that day and he’ answered that he had not. Plaintiff’s counsel then confronted the witness with three prior contradictory statements in which he had said that he saw the doctor fall (the most crucial fact in the case), and counsel proceeded to examine him as to why he had repudiated these prior statements. Space does not admit of full quotation from this excellent opinion but it was held that Mrs. Woelfle was not obliged by law to call Block as a witness (even though he was the only possible witness to a fall), that there was no surprise or entrapment, and that he could not be impeached by his former statements. These and the following cases set forth the general rules applicable in this jurisdiction and elsewhere: State v. Randolph, (Mo.) 39 S.W.2d 769; State v. Hogan, 352 Mo. 379, 177 S.W.2d 465; Ann.Cas.1914B, p. 1120; 74 A.L.R. 1042; 117 A.L.R. 326. As to the state’s claim that all of Boldizs’ testimony “was admissible in the trial as substantive evidence” it may only be said that up to now “The general rules is almost universally recognized that evidence of extrajudicial statements made by a witness who is not a party and whose declarations are not binding as admissions is admissible only to impeach or discredit the witness, and is not competent as substantive evidence of the facts to which such statements relate.” . Annotation 133 A.L.R. 1454, 1455.

In addition to the Woelfle case, one other civil case and two criminal cases suggest some practical if not policy considerations against the rule as contended for by the state. If such a rule justly exists and is available to the state and its faltering witnesses it should likewise be available to the defendant in a criminal case and to the plaintiff in a civil action as Mrs. Woelfle claimed. And, in Dunn v. Dunnaker, 87 Mo. 597, the plaintiff attempted to establish his malpractice action in precisely this manner. To prove his case the plaintiff called Dr. Bigger and then attempted to show out of court statements- contradictory of his testimony. But the court held that after introducing the doctor as a witness the plaintiff could not impeach his testimony. In State v. Drummins, 274 Mo. 632, 204 S.W. 271, the appellant was charged with seduction and to prove the prior unchaste character of the prosecutrix called two witnesses and inquired whether on specified occasions they had had sexual intercourse with the prosecutrix. The witnesses answered that they had not and furthermore said that they had not told counsel that they had. “Counsel for defendant thereupon offered to prove that the witness(es) had in fact so informed counsel, and that counsel had put the witness (es) upon the stand in the belief in good faith that (they) would swear to the same facts upon the stand * * In State v. Burks, 132 Mo. 363, 34 S.W. 48, the appellant was charged with burglary with intent to- rape. To sustain his defense that he had entered the house of the prosecuting witness pursuant to an agreement with the maid, not forcibly for the purpose of ravishing the prosecu-trix, defendant called the maid as a witness. She denied any such agreement, the defendant proposed to treat her as a hostile witness subject to cross-examination and offered to prove her prior statements to defendant and his counsel to the contrary. In both of these cases the relevant rules were all examined and restated, and it was held that the witnesses could not be thus cross-examined and impeached.

The federal cases relied on by the state do not aid or support its position here. In Tripp v. United States, 10 Cir., 295 F.2d 418, the charge was conspiracy to utter and sell counterfeit obligation's of the United States. It was there held that contradictory statements of a “recalcitrant” witness “were admissible for the purpose of impeaching him, but it is well settled that contradictory statements introduced for the purpose of impeachment are not admissible as substantive evidence.” And a further qualification of the federal rule, overlooked by the state, is this: “But such contradictory statements do not become substantive evidence unless the witness recants his earlier testimony and admits or states that such statements correctly reflect the true facts. The effect of so doing is to make the statements a part of the witness’s present testimony." (Emphasis supplied.) 295 F.2d 1. c. 425. This phase of the federal rule is illustrated and emphasized by the cited case of Harman v. United States, 4 Cir., 199 F.2d 34. In the often cited case of United States v. Block, 2 Cir., 88 F.2d 618, Judge Learned Hand did say that the trial court had properly allowed the prosecutor to cross-examine the government’s “recalcitrant” witness, “it being obvious that he was suppressing truth,” and confront him with prior contradictory statements. But the point the state overlooks is that even though the court charged the jury that “they might use any part of the statement which the witness had admitted; but none that he had not,” the conviction was reversed, the court saying: “There was not the least color for allowing the jury to take it as his testimony on the stand, and the inevitable result was to get before them unsworn evidence in an exceptionally impressive and damaging way.”

As a matter of fact the only support for the state’s contention are the authoritative and respected teachers and authors, Wig-more and McCormick. Their impressive arguments are set forth in their texts (3 Wigmore, Evidence, Secs. 1017-1019, pp. 684-690; McCormick, Evidence, Secs. 38-39, pp. 70-82), and while it may be that no court has forthrightly accepted Dean Mc.Cormick’s challenge “either to cause the courts to bring forward answering arguments supporting the orthodox rule, or to abandon it” (McCormick, p. 78), their views, admittedly, have not been adopted in any jurisdiction. Both Wigmore and McCormick hopefully cited Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400 as supporting their arguments but both concede that “the Missouri Court has since retreated from its pioneer position.” McCormick p. 80; 3 Wigmore p. 688 n. 2. In this connection it is interesting to note that in 1935 Judge Ellison was the author of Pulitzer v. Chapman and in 1936 he was also the author of the leading case of State v. Gregory, supra. Judge Bennick made this analysis of Pulitzer v. Chapman: “In Pulitzer v. Chapman, supra, our Supreme Court did lay down the rule that, so far as concerns the impeachment of a witness by his deposition in the cause, not only may he be impeached by contradictory statements which appear therein, but his contradictory statements may also be accepted as substantive proof of the facts stated so far as they are competent and have probative value. This for the reason that testimony in a deposition is given both under oath and subject to the right of cross-examination, and is therefore not to be characterized as hearsay. However, it is to be noted that the court in its opinion specifically refused to hold that probative value should likewise be accorded to prior extrajudicial statements, and we are therefore left to follow the usual rule in such respects, which is that such statements are admissible only for the purpose of impeachment, assuming, of course, that the case is one where the impeachment of the witness is in order, a situation which we have shown did not exist in the instance under consideration.” Woelfle v. Connecticut Mutual Life Ins. Co., 234 Mo.App. 1. c. 151, 112 S.W.2d 1. c. 874. The other case cited by McCormick is the divided opinion (divided even as to what Wigmore means) of (1941) State v. Jolly, 112 Mont. 352, 116 P.2d 686, in which in any event the court said, “Thus Dees’ statement, if tending to prove defendant’s alleged statement constitutes no substantial evidence of the crime, and cannot sustain the verdict.”

As indicated, the judgment is necessarily reversed and the cause remanded.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion of BARRETT, C., is adopted as the ooinion of the court.

STORCKMAN, P. J.,

concurs in separate concurring opinion filed; EAGER, J., concurs in part and concurs in result in part in separate opinion filed; LEEDY, J., concurs in paragraph one of the opinion and the result, and concurs in the separate opinion of EAGER, J., believing that Boldizs (by changing his version of the solicitation by Mrs. Kinne to do away with her husband so as to characterize such solicitation as having been made “in a joking way” and from which change the trial court could have fairly inferred an effort and purpose on the part of the witness to suppress the truth) had become subject to cross-examination for the purpose of impeachment.

STORCKMAN, Presiding Judge

(concurring) .

I fully concur in the principal opinion by BARRETT, C., but believe there is still another reason why the state should not have been permitted to examine its witness John Boldizs in the manner it did.

When the prosecuting attorney asked the witness, “Was there anything ever said about your killing James Kinne for her”, the question was fully answered when the witness said: “Yes, sir.” The addition of the words “in a joking way” is not responsive to the question and appears to be entirely voluntary on the part of the witness, but there was no motion to strike.

Furthermore, as a general rule, the opinion or conclusion of a witness as to the meaning or effect of words spoken by another person is not admissible. See 23 C.J. S. Criminal Law § 878, p. 462, and State v. Irvin, 324 Mo. 217, 22 S.W.2d 772, 774 [4]. Whether the words were spoken by the defendant and her purpose in doing so were facts for the determination of the jury.

This is not to say that the circumstances under which the words were spoken and the attitude of the declarant at the time may not be fully developed as an aid to the jury in determining whether the words were spoken seriously or in jest. Nor does this opinion undertake to deal with the proper nature and extent of cross- or re-direct examination.

The standards for the impeachment of witnesses and the admission of substantive evidence especially in criminal cases are quite definitely established in this state and have been found quite satisfactory. They are generally in accord with those of other jurisdictions. In my opinion the instant record and circumstances do not present a proper case to vary or depart from these well-established rules

EAGER, Judge

(concurring in part and concurring in result in part).

I feel that under the circumstances of this case Boldizs was in a very real sense a witness hostile to the State and thus subject to cross-examination for the purpose of impeachment only. The fact that the State’s counsel do not argue this point is immaterial, for the public is a party to this proceeding and it is not to be estopped by any actions of its representatives. Since the evidence of prior statements was apparently considered as substantive evidence, the case must be reversed on that ground, as well as for error in the selection of the jury, in which latter phase of the opinion I concur.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    Bert JONES, Appellant, v. Donald C. SMITH, Administrator of the Estate of Israel A. Smith, Deceased, Respondent.
    No. 49614.
    Supreme Court of Missouri, Division No. 1.
    Oct. 14, 1963.
    Rehearing Denied Nov. 11, 1963.

      Jack B. Robertson, Rogers, Field & Gentry, Kansas City, for appellant.
    Fred J. Freel, John L. Sheridan, Sheridan, Baty, Markey, Sanders, Edwards & Carr, Kansas City, for respondent.
   WELBORN, Commissioner.

This is an action for damages for personal injuries sustained in an automobile collision. Plaintiff, Bert Jones, was a passenger in an automobile owned by him and driven by his employee, Carl Willis, when it collided with a vehicle driven by Israel A. Smith. Smith died as a result of injuries sustained in the collision. Plaintiff instituted this action for $100,000 damages against the defendant as administrator of the estate of Israel A. Smith. Defendant filed a counter-claim against plaintiff for damages for the death of Israel A. Smith. A trial by jury in Jackson County Circuit Court resulted in a verdict against plaintiff on his cause of action and for defendant on his counter-claim in the amount of $10,000. After plaintiff’s motion for new trial on his petition and defendant’s counter-claim had been filed, the parties settled the counter-claim and the motion for new trial as to it was sustained. Thereafter, the counter-claim was dismissed, with a stipulation that its dismissal should not in any manner impair the right of plaintiff to prosecute the principal action against the defendant. Plaintiff’s motion for new trial of his cause of action was overruled and he appealed to this court. Because of the amount in controversy, we have jurisdiction of the appeal. We will refer to the parties in this opinion as they appeared in. the trial court.

We conclude that the judgment of the trial court should be reversed because of error in Instruction B given on behalf of defendant at the trial.

The collision out of which this cause arose occurred at between 9:45 and 10:00 A.M. on June 14, 1958. It occurred in Daviess County on U. S. Route 69, about two miles north of the junction of Route 69 and State Route 6, called the “Altamont Junction.” In the area of the accident, the traveled portion of Route 69 was asphalt over concrete and was between 19 feet and 21 feet in width. Shoulders on either side were 5 feet to 6 feet in width.

Plaintiff owned the 19S8 Oldsmobile sedan which, on the day in question, his employee, Carl Willis, was driving, with the plaintiff as a passenger seated in the right front seat. Both Willis and plaintiff said that the vehicle was in good mechanical condition. Plaintiff and Willis were going from plaintiff’s residence near Eagle-ville to Smithville, where plaintiff intended to purchase some hogs.

When plaintiff and Willis left plaintiff’s residence at about 8:00 A.M., the sun was shining. However, as they drove south on Route 69, the weather became cloudy and, a short distance below Pattonsburg, rain began to fall heavily. According to Willis, he turned on the headlights, the windshield wipers and the defroster and reduced the speed of the car by approximately 10 miles per hour to SS miles per hour. He drove through heavy rain for several miles at a speed of 55 miles per hour. While rain continued to fall and while driving at 55 miles per hour, Willis reached the crest of a hill. There, according to him, he saw the automobile driven by Smith, a 1957 Chevrolet of which Smith was the sole occupant, proceeding northward in the southbound lane of traffic about 100 feet in front of plaintiff’s car. According to Willis, he turned his car sharply to the left and the right part of the front bumper and the right front fender of the Oldsmobile met the front of the Chevrolet on the left portion of the bumper. According to Willis, at the time of impact, his car was headed southeast and the Smith car northeast and parts of each car were in both lanes of traffic. The impact occurred in the. northbound lane and south of the north end. of a yellow “no-passing” line in the northbound lane. According to Willis, the left front wheel of his car was 5 feet in the northbound lane at the time of the collision. Willis testified that he did not see the Smith car until he saw it 100 feet away in his lane of traffic as he came over the crest of the hill and that, until he swerved violently to the left, he had been operating his vehicle on the right side of the pavement.

After the collision, the vehicles came to a stop, with plaintiff’s Oldsmobile in the northbound lane, headed in a southeasterly direction, with the left front wheel 3 feet to 4 feet on the east shoulder and the left rear wheel near the east side of the pavement. Smith’s vehicle was headed east, with the rear portion practically across the southbound lane and the front in the northbound lane.

Plaintiff did not observe the collision. He was reading a letter at the time and the first thing of which he was aware was a violent swerve of his vehicle and an almost simultaneous crash “like a bolt of lightning.” Smith died shortly after the collision of injuries which he received and Willis was the only eyewitness who testified concerning the actual collision.

Both Willis and plaintiff suffered injuries in the collision which required hospitalization. The extent of their injuries is immaterial to this appeal.

Plaintiff’s petition charged Smith with negligence in failing to operate his vehicle on the right half of the roadway and in operating his car left of the center line in the lane of traffic reserved for southbound traffic. Defendant’s answer and counterclaim charged plaintiff and Willis with negligence in failing to keep a careful lookout, operating at an excessive rate of speed and in operating plaintiff’s car across the center of the highway and into the path of the Smith vehicle.

At the trial, Willis testified substantially as above set out. Persons who arrived kat the scene testified that Willis told them there that “he hit me” and that the driver of the other car was on his side of the road and that he swerved to avoid him.

The Daviess County sheriff testified that he observed a skid mark left by the tire of Smith’s car at the scene of the collision. The mark started near the center of the highway in the northbound lane and went in a circle around into the west side or southbound lane of the highway, the length of the mark being about 15 feet.

The defendant’s evidence included the testimony of Sergeant N. L. Eader of the Missouri State Highway Patrol, who investigated the accident. Sergeant Eader, who arrived some 30 minutes after the collision, testified that he found no debris in the southbound lane of the highway, but he did see dirt and mud on the east side in the northbound lane and debris on the shoulder on the east side. He observed two freshly made deep scratches or gouges in the north lane, one 3 feet east of the center line and the other 5 feet east of the center line. He found the marks to be 30 feet from the north end of the “no-passing” line in the northbound lane.

Sergeant Eader testified concerning tests of vision which he made a week before the trial at the request of defendant’s counsel. On a clear day, he walked north from the gouge marks approximately 240 feet, over the crest of the hill. There he crouched down so that his eye level would approximate that of a person in a car. From that point, he could see the top of the next hill.

Arch Welch, a commercial photographer, testified on behalf of defendant. He identified various photographs which he made at the scene of the collision approximately one month after it had occurred. One photograph, taken with a camera lens 50 inches above the pavement and with the camera located 250 feet north of the gouge marks, showed the top of an automobile which was 250 feet south of the gouge marks. At a distance 265 feet north of the gouge marks, at the same lens level, an auto 265 feet south of the marks could not be seen in a photograph because of the intervening hill.

Doctor W. H. Tonn testified on behalf of defendant as an expert on automobile collisions. He found the grade of the highway from 100 feet north of the gouge marks to be upward at the rate of .8 of a foot per 100 feet for 100 feet. From that point on north the grade was down 2.6 feet per 100 feet for the next 100 feet and 3.5 feet for the following 100 feet. The grade south of the gouge marks was downward 1.7 feet per 100 feet.

He testified that the eye level of a driver of average height at 200 feet north of the gouge marks would be .7 of a foot below the crest of the hill; at 150 feet north, 3.2 feet above the crest, and at 100 feet, 4 feet above the crest. The top of the Smith car, at 200 feet south of the gouge marks, according to the witness, would have been 2 inches above the crest of the hill; at 150 feet south of the gouge marks, the top of the Chevrolet would have been 2}4 feet above the crest of the hill, and at 100 feet south of the gouge marks, the top of the Chevrolet would have been 3.3 feet above the crest of the hill. He also testified that, when two vehicles collide head on, the back ends fly up in the air and the front ends bear in and down to the pavement, and that, if the Oldsmobile was going faster than the Chevrolet, it would push the Chevrolet backward after the initial impact. He testified that, if the Oldsmobile collided with the front of the Chevrolet at an angle, the Chevrolet would be pushed backward and rotated in a clockwise direction to the left. He testified that the debris from the faster moving vehicle would be carried forward in the direction of travel and debris from the slower moving vehicle would be dropped at the point of collision.

At the outset of this appeal, we are confronted by defendant’s contention that the judgment should he affirmed because the plaintiff did not make a submis-sible case supported by substantial evidence of probative value. This contention is based upon the defendant’s analysis of the testimony of witness Willis that he was traveling 55 miles per hour when he first saw the Smith car 100 feet ahead and that his vehicle and the Smith vehicle traveled approximately the same distance between the time that the Smith car first came into view and the time of the collision. Upon cross-examination, defendant’s counsel elicited Willis’ acknowledgment that the normal reaction time of the driver of a vehicle is three-fourths of a second and that a motor vehicle traveling at 55 miles per hour would travel approximately 60 feet in the reaction time. Applying these figures, defendant asserts that it would have been inevitable, according to Willis’ testimony, that the cars would collide on the west side of the highway before either driver could have reacted to the situation. Defendant concludes that Willis’ testimony is contrary to common knowledge and experience and to the known laws of physics and does not amount to substantial evidence of probative value.

We have, of course, in cases in which the ability of a driver to react by swerving, braking, signaling, etc., is a factor, determined the possibility of his action upon the basis of a normal reaction time of three-fourths of a second. De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 635; Hendershot v. Minich, Mo.Sup., 297 S.W.2d 403, 407. However, in such cases, we were determining whether the possibility of action existed, not whether action was taken. Here Willis asserts that he did act. Whether he reacted more promptly than the average driver or whether he mistook the distance between the vehicles when he first saw the Smith car (plaintiff is not conclusively bound by Willis’ estimate of distance. Carlson v. St. Louis Public Service Company, Mo.Sup., 358 S.W.2d 795, 800; Rudin v. Moss, Mo.Sup., 349 S.W.2d 893; Highfill v. Brown, Mo.Sup., 340 S.W.2d 656), the fact remains that he testified he did act and we cannot say that his testimony was manifestly impossible or untrue. Garrison v. Ryno, Mo.Sup., 328 S.W.2d 557, 561.

The case of Stephens v. Thompson, Mo.Sup., 293 S.W.2d 392, relied upon by defendant, presented a far different situation from that found here. That case involved a railroad crossing accident and this court concluded that the plaintiff should not be accorded any favorable inferences from the testimony of the railroad engineer as to distance. However, the difficulty there was that the testimony of the engineer as to the relevant distance varied from 500 to 1820 feet. We concluded that the wide, unexplained divergency made the testimony contradictory and without probative value. We cannot say that the testimony of Willis in this case is subject to the same objection.

The cases of Stonefield v. Flynn, Mo.App., 347 S.W.2d 472, and Kelly v. Terminal Railroad Ass’n of St. Louis, Mo.Sup., 315 S.W.2d 699, also relied upon by defendant, likewise involved wholly different factual situations, dealing with estimates of stopping distance which were rejected as incredible. Here we are, as above pointed out, not dealing with estimates of what might have been done but with testimony of what was done.

Defendant also contends that a directed verdict in his favor should have been ordered because the evidence showed that plaintiff, through Willis, was guilty of contributory negligence as a matter of law. He asserts that Willis’ failure to see the Smith car until it was only 100 feet away was a failure to see what defendant asserts was plainly visible and therefore constituted contributory negligence as a matter of law. In this connection defendant relies upon Willis’ testimony that he had visibility of 300 feet to 400 feet ahead without difficulty and up to 500 feet with some difficulty at the time of the collision. Defendant then relies upon photographic evidence and evidence of measurements by defendant’s witnesses regarding sight distances at the scene of the accident to show that, if Willis could have seen as far as 400 feet, he should have seen the Smith car at a minimum distance of 400 feet.

Of course, the plaintiff is not hound by the testimony of defendant’s witnesses. As to the photographs and the measurements and experiments of defendant’s witnesses, we feel that such evidence did not amount to'proof of facts or circumstances by the defendant which leave no other reasonable inference than that the plaintiff was guilty of contributory negligence. Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972, 975. Consideration of such evidence in the light of all the circumstances, particularly the weather conditions, precludes any such conclusion.

The photographic evidence here is far different from that presented in Lohmann v. Wabash R. Co., 364 Mo. 910, 269 S.W.2d 885, relied upon by defendant. In that case, the question was the extent to which a building at the scene of a railroad crossing accident obstructed the view of the tracks of a person at the crossing. The photographic evidence in the case clearly established that the view was not obstructed to the extent that the plaintiff claimed. Here, at most, the photographs might have evidenced what could have been seen at varying distances on a clear, sunny day. Certainly, they did not establish incontrovertible, physical proof of what might have been visible in a rainstorm.

■ We turn now to plaintiff’s assignments of error.

Plaintiff’s Instruction No. 1 submitted plaintiff’s theory that, when the vehicle driven by Willis reached the crest of the hill, he, for the first time, saw Smith’s car approximately 100 feet ahead being driven north in the southbound lane and that Willis, in an effort to avoid a collision, swerved his car to the left as Smith swerved to the right and the collision occurred.

The instruction called upon the Jury to determine, if they found that Smith was driving to the left of the center line, whether or not such conduct was negligence and whether such negligence directly caused the collision.

On behalf of the defendant, Instruction A, his verdict-directing instruction on his counter-claim, and Instruction B, his defense of contributory negligence to plaintiff’s claim, were given. Each instruction defined the liability of Jones for the negligence of Willis, and referred to the duty of a motorist to drive on the right half of the roadway. Instruction A then provided as follows:

“And so, if you find and believe from the evidence that Israel A. Smith was driving a Chevrolet automobile in a northerly direction on U. S. Highway 69 on June 14, 1958, on his own right hand side of the road, at approximately 10:00 A.M., and if you further find and believe from the evidence that at said time and place the Oldsmobile automobile in which plaintiff was riding was southbound on said highway and collided with the Chevrolet being driven by Israel A. Smith, and if you further find and believe from the evidence that said highway was a roadway in Missouri, and was at the time and place of collision of sufficient width to permit the Oldsmobile in which plaintiff was riding to drive upon his right or the west side of said highway, and if you further find from the evidence that the driver of the Oldsmobile in which plaintiff was riding failed to drive on the west half of said highway, but instead crossed over the center line of said roadway, into the east half of said highway, and came into collision with the Chevrolet driven by Israel A. Smith then such failure of the driver of the Oldsmobile in which plaintiff was riding to drive on the right or west half of the highway, if so, was negligence on his part; and if you further find and believe that such negligence, if any, on the part of the driver of the Oldsmobile directly caused the collision mentioned in evidence and the death of Israel A. Smith, if so, and at the time Israel A. Smith was exercising the highest degree of care for his own safety, then your verdict shall be in favor of the defendant on defendant’s counter-claim and against plaintiff on plaintiff’s petition.”

After the introductory material, Instruction B read:

“And so, if you find and believe from the evidence that Israel A. Smith was driving a Chevrolet automobile in a northerly direction on U. S. Highway 69 on June 14, 1958, at approximately 10:00 A.M., and if you further find .and believe from the evidence that at said time and place the Oldsmobile au-tomobile in which plaintiff was riding was southbound on said highway and collided with the Chevrolet being driven by Israel A. Smith, and if you further find and believe from the evidence -that said highway was a roadway in Missouri, and was at the time and place of collision of sufficient width to permit the Oldsmobile in which plaintiff was riding to drive upon his right or ■the west side of said highway, and if you further find from the evidence that ■the driver of the Oldsmobile in which ■plaintiff was riding failed to drive on the west half of said highway, but instead crossed over the center line of said roadway, into the east half of said 'highway, and came into collision with the Chevrolet driven by Israel A. .Smith, then such failure of the driver •of the Oldsmobile in which plaintiff was riding to drive on the right or west half of the highway, if so, was negligence on his part; and if you further find and believe that such negligence, if any, on the part of the driver <of the Oldsmobile directly caused or idirecdy contributed to cause the collision mentioned in evidence and the death of Israel A. Smith, if so, then your verdict shall be in favor of the defendant and against plaintiff on plaintiff’s petition, regardless of whether or not you may find Israel A. Smith was also negligent.”

Plaintiff asserts that these instructions are erroneous for the reason that there was no evidence to support the submission in Instruction A that Smith was at all times on his right side' of the road; that both erroneously instruct that, as a matter of law, Willis was negligent in driving to the left of the center line, and that both conflict with plaintiff’s Instruction No. 1. Defendant, on the other hand, contends that -the instructions properly presented his theory of the case, i. e., that Smith was operating his automobile on his right side of the road at all times approaching the accident and at the time the accident occurred, and that Willis, without cause or excuse, violated his duty to operate his automobile on the right half of the roadway. Defendant contends that the evidence supported the submission and that he was entitled to a submission on his theory-even though the evidence of the plaintiff was contrary to it. He supports the submission of Willis’ driving to the left of the center as negligence as a matter of law by the case of Harris v. Hughes, Mo.App., 266 S.W.2d 763.

As to Instruction B, defendant also asserts that any error in that instruction was non-prejudicial for the reason that the jury obviously decided the case on the basis of defendant’s counter-claim instruction, Instruction A, and not on the basis of the contributory negligence instruction.

The defendant did, of course, have the right to submit to the jury his theory of how the accident occurred insofar as there was evidence to support such theory. Compton v. Meadows, Mo.Sup., 359 S.W.2d 673, 675. “The fact that the parties present conflicting and divergent theories of the manner in which the collision occurred does not preclude one injured by violation of a statute from relying upon negligence per se.” Lincoln v. Railway Express Agency, Inc., Mo.Sup., 359 S.W.2d 759, 764.

We have held that unexcused failure to drive to the right of the center of a highway of sufficient width is negligence per se. Melber v. Yourtee, Mo.Sup., 203 S.W.2d 727; Wilhite v. City of St. Louis, 359 Mo. 933, 224 S.W.2d 956.

In his Instruction No. 1, plaintiff relied upon the well-recognized exception to the rule requiring driving on the right side of the road which permits a jury to determine whether or not a driver who swerved to the left of the center in an emergency, when there was reason to apprehend a collision by reason of another driver’s operating his vehicle on the wrong side of the road, did what a person exercising the highest degree of care would have done in similar circumstances. Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541; Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736; Helton v. Huckeba, 365 Mo. 93, 276 S.W.2d 78.

Basically, there need be no fundamental inconsistency between the proper submission of the theories of both parties in this case, assuming that the evidence warrants. Helton v. Huckeba, supra. However, the difficulty in this case arises out of the manner in which the theories were submitted, particularly in defendant’s Instruction B. In that instruction the direction is that, if the jury finds that the collision occurred on Smith’s side of the road, the jury should find that the plaintiff was negligent and find for the defendant, if such negligence was the sole or contributing cause of the collision, even though the jury might also find Smith negligent. There was no disagreement between the parties that the collision occurred on Smith’s side of the road. The basic factual question was why the collision occurred there. The only negligence on the part of Smith, which was submitted by the plaintiff, was in driving on the wrong side of the road. The effect of Instruction B was, therefore, to tell the jury that, as a matter of law, Willis was negligent in driving into Smith’s lane even though Smith had been negligent in driving in the wrong lane. In that respect the instruction clearly conflicts with plaintiff’s Instruction No. 1 which correctly declares the law in such situations. The defendant’s instruction, therefore, should not have been given. Marsh v. Heerlein, Mo.Sup., 299 S.W.2d 441, 445; Jones v. Hughey, Mo.Sup., 283 S.W.2d 550, 554.

Defendant asserts that, even if Instruction B was erroneous, the error was non-prejudicial because it is evident that the jury determined the case on the basis of defendant’s counter-claim instruction, Instruction A, and not on the issue of contributory negligence. The jury did find for the defendant on his counter-claim. However, there is no reason to assume that the jury first considered that issue. An equally logical and reasonable procedure would have been for the jury to have considered first the plaintiff’s cause of action and then defendant’s counter-claim. Should the jury have followed such course, they would inevitably have considered defendant’s Instruction B, which we find to be erroneous. Certainly, there is no reason to presume that the jury followed one or the other of the courses available to them. Inasmuch as the counter-claim has been dismissed and we have concluded that Instruction B was erroneous, there is no necessity to pass upon the objections to Instruction A.

In view of the fact that the questions may recur on a new trial, we turn briefly to plaintiff’s contentions of error based upon the admission of testimony of defendant’s expert witness, Doctor Tonn, and the photographic evidence identified by defendant’s witness Welch. As to Tonn’s testimony, plaintiff objects that such matters concerning which the witness testified as the eye level of a driver of a 1958 Oldsmobile, what would happen when vehicles collide head on at various speeds and angles, what he would expect to find in the road after a collision, and which wheel of a Chevrolet would carry the weight upon an assumed impact, were not proper subjects for expert testimony. The testimony as to the eye level was merely to establish the measurements used in computation of sight ranges. As to the other matters, the rule is that "the necessity for admission of expert testimony in a given situation rests in the first instance in the sound discretion of the trial court, and its decision in those respects is not to be set aside in the absence of showing of an abuse of discretion.” Yocum v. Kansas City Public Service Company, Mo. Sup., 349 S.W.2d 860, 864. The transcript here shows that the trial court carefully limited the witness’ testimony, particularly as to matters of opinion relating to questions of common knowledge and also on the strongly contested issue of the angle at which the vehicles collided. As to the matters concerning which Tonn was permitted to testify, there is no contention that his testimony was irrelevant. Indeed, plaintiff’s objection is based upon the damaging effect of the testimony on plaintiff’s case. In view of the careful limits by which the trial court circumscribed the testimony of Tonn, and in view of the nature of the matters concerning which testimony was admitted, we could not conclude that the trial court was in error in its rulings. Yocum v. Kansas City Public Service Company, supra.

As to the photographic evidence, plaintiff asserts that defendant’s exhibits G, Q and R, taken with the testimony of Welch, are experiments to determine range of visibility at the scene of the collision, yet they were made under weather conditions far different from those existing at the time of the collision. Obviously, the photographs were taken on a clear, sunny day and there is no dispute that the collision occurred during a heavy rain. Defendant asserts, however, that the photographs are line of sight photographs, designed to show the physical facts at the hill crest north of where the collision took place. The three exhibits were introduced together, and in identifying the first concerning which he testified, exhibit R, Welch stated: “The purpose for making this photograph was to show line of sight over the hill crest, * * As with expert testimony, the admission of photographic evidence is a matter primarily for the trial court’s determination. Brock v. Gulf, Mobile and Ohio Railroad Co., Mo. Sup., 270 S.W.2d 827; Gray v. St. Louis-San Francisco Ry. Co., 363 Mo. 864, 254 S.W.2d 577. “It has often been held that photographs of locations or of objects are admissible in evidence even though taken long after the event and when changes have occurred, if the extent of such changes is explained. Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96, 104; Reed v. Coleman, Mo.App., 167 S.W. 2d 125, 133 (15).” Brock v. Gulf, Mobile and Ohio Railroad Co., supra, 1. c. 833.

Here, the jury was made fully aware of the difference in conditions at the time of the collision and at the time of the taking of the photographs. Furthermore, Willis testified that his range of visibility extended as far as 500 feet, the maximum distance at which the exhibits tend to show range of visibility. In this situation, we would not hold that the trial court abused his discretion in admitting the photographs for the sole purpose of showing sight distances and the physical facts at the scene of the collision.

The judgment is reversed and the case remanded.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Joseph Anthony LIRA, Appellant.
    No. 49912.
    Supreme Court of Missouri, Division No. 2.
    Nov. 11, 1963.
    Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst Atty. Gen;, Jefferson City', attorneys for respondent.
    Charles M. Shaw, Clayton, for appellant.
   PRITCHARD, Commissioner.

The jury found defendant guilty of second degree burglary of a business building as charged in the information, and assessed his punishment at two years in the Department of Corrections of the State of Missouri. Defendant has filed no brief, so in accordance with the requirements of Supreme Court Rule 28.02, V.A.M.R., we must examine all of the assignments of error properly raised in the defendant’s motion for new trial.

Since defendant challenges the sufficiency of the evidence to sustain his conviction, we set forth the evidence below in its light which is most favorable to the state. State v. Sawyer, Mo., 365 S.W.2d 487, 491 [4, 5]; State v. Baldwin, Mo., 358 S.W.2d 18, 22 [2].

George H. Mehringer was the owner and operator of the Ben Franklin Variety Store in Hermann, Missouri. In the morning of February 5, 1962, he arrived at his store premises (the building of which was leased by Mr. Mehringer from Mr. Edgar Obenhaus) between a quarter after 7:00 and 7:30 o’clock, and found that the doors on the east side of the store building were wide open, the door frame was split and the door lock was lying on the sidewalk. Mr. Mehringer immediately reported this to the sheriff, and the deputy sheriff from Owens-ville came to the premises and made an investigation. After Mr. Mehringer went inside the store he found the file cabinets, file boxes and the Simplicity Pattern box had the drawers wide open. In the basement stockroom there had been placed a blue duffel bag which had a defective handle, this bag having been returned by a customer. Mr. Mehringer had seen the duffel bag (marked State’s Exhibit 1) in the stockroom on a shelf prior to February 5th, but he did not tell the deputy sheriff that it was missing although he said he noticed that it was missing from its place on the shelf after the burglary. The police officers showed him the bag sometime after it was stolen, and he then identified it as his property.

On March 14, 1963, Detective Thomas Boulch arrested defendant and one Fred Dietrich at North Florissant and Hebert Avenue in St. Louis, Missouri, upon suspicion of burglary, and during the course of the arrest he found under the rear seat of defendant’s station wagon the blue canvas, zipper-type bag identified as State’s Exhibit 1. Defendant was then taken to Troop C Headquarters of the State Highway Patrol at Kirkwood, Missouri, where he was fingerprinted and questioned by Lieutenant Maxey who had the blue duffel bag on his desk at the time. Maxey told the defendant that he was going to ask him some questions concerning the bag, and that anything he might say could be used against him, and defendant told him he realized that. Maxey testified that defendant declined to give a written statement, but told him orally that on February 5, 1962, he and one Fred John Dietrich went to Hermann, Missouri, and after arriving they broke into a store, which defendant thought was the Ben Franklin Store, by forcing or prying open the front door. Defendant and Dietrich, according to this oral statement, were going to look for a safe, but did not find one in the building, so they picked up the blue duffel bag and a few articles, put them into the bag and left the store.

In defendant’s first assignment of error it is claimed that there was no competent evidence on behalf of the state to prove that goods of any sort were taken or carried away from the premises in question, therefore defendant’s motion for judgment of acquittal should have been sustained.

Under the provisions of Sec. 560.070, RSMo 1959, V.A.M.S., defining the offense of burglary of enclosures besides dwelling places, it is not necessary for the state to prove that goods of any sort were taken or carried away from the premises. It is sufficient for the state- to show (as was done - in this; case) that a breaking and entering occurred in a building in which there shall be at the time “ * * * any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal or commit any crime therein * * Sec. 560.070, supra. See State v. Adams, 339 Mo. 926, 98 S.W.2d 632, 637 [4], 108 A.L.R. 838 where this court said, “But asportation is not an essential element of burglary, that crime being complete when there has been a breaking and entering with intent to commit a felony, section 4042, RSMo 1929 (Mo.St. Ann. § 4042, p. 2846); 9 C.J. § 3, p. 1009.” The evidence here is that the Ben Franklin Store contained some 8,000 items of merchandise. The fact that the blue duffel bag found by the officer in defendant’s automobile upon his arrest, together with defendant’s statement that he and Dietrich pried open the door to the store to look for a safe, is sufficient for the jury to infer that defendant had the requisite intent to steal. State v. Parks, Mo., 336 S.W.2d 369, 370 [2, 3]. This assignment of error is ruled against defendant.

Defendant’s second assignment of error that there was no competent evidence that he burglarized into or in anyway broke into and entered said premises is also ruled against him. There was direct and positive evidence to show that the door of the store building was broken and pried open; defendant admitted to the officers that he did this act and entered the store. Again, the possession by defendant of the blue duffel bag, without more, would warrant an inference that he was within the store where, prior to the burglary, the bag was kept.

During cross-examination of state’s witness, Lieutenant V. E. Maxey, the following occurred:

“Q. (By Mr. Shaw) I’m going to ask you this: do you remember making a statement then that when Lira admitted to you that he had burglarized this place in Hermann, do you remember making the statement that the officers that were present at the time he made the statement were Trooper R. E. Beck, W. L. Hutchings, Trooper R. E. Mudd, Joseph Lira and Freddy Dietrich; do you remember saying that?
“A. Which burglary are you talking about ?
“Q. I’m talking about the 5th day of February, 1962.
“MR. SHAW: And I’m going to ask that the Court declare a mistrial and discharge the jury.' I ask that the jury be discharged and a mistrial declared because of an improper, prejudicial remark made by the witness who knows better.
“The Court: Overruled,
“MR. SHAW: My exception.”

For his third assignment of error, defendant says that the above “unresponsive and voluntary reply by Lt. Maxey had the effect of unduly prejudicing the Defendant in the eyes of the Jury and in effect was a comment upon other arrests and crimes for which the Defendant was charged but not presently on trial.”

There is no evidence here of any other charge against defendant other than the officer’s testimony that defendant and Dietrich were first arrested upon suspicion of burglary. It does not appear whether or not that suspicion was resolved into a formal charge, so there is no support to defendant’s assignment, in part, that the officer’s answer was in effect a comment upon other arrests and crimes for which the “Defendant was charged but not presently on trial.”

While the officer’s unresponsive and voluntary answer was improper, (admitted by the state) defendant did not request the trial court to instruct the jury to disregard the answer, but merely requested a mistrial. In such circumstances it would have been better for the trial court to have so instructed the jury on his own motion, but we cannot say that it was an abuse of discretion that he did not instruct the jury to disregard the officer’s unresponsive statement, or that he refused to grant the requested mistrial. The trial court is in better position to weigh the prejudicial effect upon the jury in such matters. State v. Baker, Mo., 293 S.W.2d 900, 902 [1]; State v. Staffer, Mo., 331 S.W.2d 526, 531 [13, 14]; State v. Richardson, Mo., 343 S.W.2d 51, 53 [2, 3]. Defendant’s third assignment of error is overruled.

Under defendant’s last assignment of error it is contended that the trial court erred in overruling his motion for judgment of acquittal in that he competently established an alibi and conclusively proved he was not present at the scene of the commission of the burglary at the store leased by George Mehringer.

The evidence as to alibi is that defendant went to Chicago, Illinois, on the date or dates in question (February 4 and 5, 1962), and helped one Ford Ligón tow his disabled automobile to St. Louis, Missouri. These facts, sought by defendant to be established, if believed by the jury, would place him at some other place at the time of the commission of the offense. The jury was instructed as to defendant’s alibi defense. The fallacy of defendant’s contention is that all of the testimony, including his own, is for the jury to determine as to its truth. State v. Hagerman, 361 Mo. 994, 238 S.W.2d 327, 329 [2, 3] ; State v. Davis, Mo., 365 S.W.2d 577, 580 [5]. This assignment of error is likewise overruled.

Pursuant to our discretionary authority under Supreme Court Rule 27.20(c), V.A. M.R., we have examined the record to determine if there may have been any plain errors affecting substantial rights. We find none. The information charging second degree burglary is sufficient to apprise defendant of that alleged offense. Defendant was duly arraigned and entered his plea of not guilty. The verdict of the jury is in proper form and is responsive to the issues. Defendant filed his motion for new trial which was overruled. Thereafter, defendant was informed of the verdict of the jury, allocution was granted, and judgment of conviction was entered. The sentence was in accordance with the verdict, and was within the permissible limits of the offense charged. Defendant was accorded a fair trial, throughout which he was present.

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: EAGER, Judge.

text:
    STATE of Missouri, Appellant, v. Willard Marvin BROOKS, Respondent.
    No. 50067.
    Supreme Court of Missouri, Division No. 2.
    Nov. 11, 1963.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Bill D. Burlison, Sp. Asst. Atty. Gen., Cape Girardeau, for appellant.
    Strom & Strom, Stephen E. Strom, Cape Girardeau, for respondent.
   EAGER, Judge.

Defendant was charged by information with burglary and stealing, supposedly occurring on December 20, 1962. More specifically, the State charged that defendant broke and entered a building “the property of the estate of Paul Harris (Lucille Overbeck, administratrix)” and stole two guns “the property of said estate.” The information was filed on February 19, 1963; defendant was arraigned on that day and entered a plea of not guilty. On the same day defendant filed his motion to dismiss the information and to discharge the defendant for the reasons: that the information failed to charge a criminal offense in that the building and personal property in question were specifically alleged to be the property of the Paul Harris estate, that defendant was a lawful heir or devisee of Harris, and that he was lawfully entitled to enter the said premises and take the said personal property into his possession.

Also, on the same day, February 19, 1963, the parties filed a stipulation to the following effect: that Paul Harris died on December 11, 1962, leaving ten nieces and nephews and two children of a deceased nephew as his heirs; that defendant was a nephew and heir; that letters of administration were granted to Lucille Overbeck on January 4, 1963, but that no application for letters had been made prior to such date; that on February 8, 1963, the will of Paul Harris was filed and admitted to probate, which will provided for the payment of debts and bequeathed all of the residue to Harris’ wife, who had predeceased him; that the will made no other disposition of the property, and that thereupon Lucille Overbeck was appointed Administratrix with the Will Annexed.

On the same day, namely, February 19, 1963, defendant’s motion was presented and taken under advisement. On the next day the following order was entered: “Now on this day Defendant’s Motion to Dismiss Information and to Discharge Defendant, is hereby sustained by the Court and costs ordered certified to the County for Payment in the above entitled cause.” It is from that order that the State has appealed within due time.

We must first consider whether the appeal vests any jurisdiction here. In so stating, we are not intimating that an appeal in a felony case, if valid at all, would vest jurisdiction elsewhere. The essential question in this case is whether the State was entitled to appeal at all. It has often been stated that the State has a right of appeal in a criminal case only in those instances for which specific provision is made. State v. Hughes, Mo.App., 223 S.W.2d 106; State v. Pottinger, 365 Mo. 794, 287 S.W.2d 782; State v. Craig, 223 Mo. 201, 122 S.W. 1006; State v. Marshall, 124 Mo. 483, 27 S.W. 1107; State v. Bright, Mo.App., 263 S.W. 559; State v. Hunter, Mo.App., 198 S.W.2d 544; State v. Ulmer, Mo., 351 S.W.2d 7. Those provisions are contained in §§ 547.200 and 547.210, RSMo 1959, V.A.M.S., and in Crim. Rule 28.04, V.A.M.R. which is as follows: “The state shall be entitled to take an appeal in the following cases and in no others: (a) when, prior to judgment, upon motion or upon the court’s own view, it is adjudged that an indictment or information is insufficient; (b) when a judgment is arrested or set aside.” The statutory sections just cited are of the same general substance as the rule and they prescribe what has long been the Missouri law.

In construing these sections of the statutes (and where appropriate, the Rule) our courts have consistently held that the only cases in which the State is thus permitted to appeal are those in which the indictment or information has been adjudged insufficient because of defects or insufficiencies in the indictment or information itself; and an appeal is not permitted where an indictment or information has been adjudged insufficient because of matters “dehors the record” and which do not appear in such indictment or information. State v. Hughes, Mo.App., 223 S.W.2d 106; State v. Bright, 263 S.W. 559; State v. Craig, 223 Mo. 201, 122 S.W. 1006; State v. Pottinger, 365 Mo. 794, 287 S.W.2d 782. In Hughes, supra, the court said at 223 S.W.2d loc. cit. 108: “All of these undisputed facts show that the information was not held insufficient because of any defect in the information itself and was 'quashed’ because of matters not appearing in the information nor on the face of the record. Therefore, this is not the kind of a case in which the State is entitled to an appeal under the plainly limited provisions of Section 4143, supra.” In Pottinger, supra, the Court said in part, at 287 S.W.2d loc. cit. 785: “ ‘We think it clear that under the above sections the right of the • state to prosecute an appeal is limited to those cases where the indictment has -been adjudged to be insufficient either on motion to quash, on demurrer, or motion in arrest of judgment because of defective indictment.’ State v. Risley, 72 Mo. 609; State v. Heisserer, 83 Mo. 692; State v. Ashcraft, 95 Mo. 348, 8 S.W. 216; State v. Rowe, 22 Mo. 328.” See, also, State v. Ulmer, Mo., 351 S.W.2d 7, where the Court said at loc. cit. 10: “It seems clear that the insufficiency of the information referred to by the legislature in Section 547.210 and restated in Rule 28.04 refers to the ‘insufficiency of accusation’ contained in an indictment or information and does not mean an ‘insufficiency’ implied, if at all, solely by reason of the fact that an information or indictment has been quashed or dismissed. See again State v. Pottinger, supra; and see State v. Hunter, Mo.App., 198 S.W.2d 544, 546 [4], 547 [5]; State v. Reisman, 225 Mo. App. 637, 37 S.W.2d 675, 677 [3]; State v. Clipper, 142 Mo. 474, 44 S.W. 264; State v. Bollinger,. 69 Mo. 577, 580.”

The State insists that, since the information followed the form of the statutes on burglary and stealing, it did charge criminal offenses and a dismissal was improper. State v. Crouch, Mo., 353 S.W.2d 597, 601; State v. Anderson, Mo., 232 S.W.2d 909, 911. That contention does not reach the real point involved.

The parties here did not submit an attack based solely on the sufficiency or insufficiency of the information, within itself, to state an accusation. They filed a stipulation with the motion, and we can only assume that the Court considered it. That stipulation set out facts to support defendant’s contention and defense that he could not be guilty of burglary or stealing because he was “a lawful heir * * The effect of the court’s order has been and is a discharge on the merits, and its effect is not lessened by the fact that the decision was made “upon the determination by the court of a question of law; * * State v. Craig, 223 Mo. 201, 122 S.W. 1006. To this end the order could properly have been amplified somewhat, but the State has recognized it as a final order and judgment by attempting this appeal.

Cases are cited, largely by way of analogy, as indicating whether defendant would or would not be guilty of burglary on the facts charged and stipulated. We shall not cite or discuss these, nor attempt to indicate a view on the merits. And, for our present purpose, it is immaterial-whether the trial court was right or wrong on the merits. There being no appeal properly here, the appeal is dismissed

All of the Judges concur.


author: EAGER, Chief Justice.

text:
    STATE ex rel. Daniel C. ROGERS, Relator, v. J. Marcus KIRTLEY, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, Respondent.
    No. 49935.
    Supreme Court of Missouri, In Banc.
    Nov. 11, 1963.
    Thomas F. Eagleton, Atty. Gen., J. Gordon Siddens and Louis C. DeFeo, Jr., Asst-Attys. Gen., Jefferson City, for relator.
    Keith Wilson, Jr., City Counselor, John J. Cosgrove, Associate City Counselor, Kansas City, for respondent.
   EAGER, Chief Justice.

In this matter we issued our provisional rule in prohibition against Respondent, prohibiting him from enforcing his order of January 12, 1963, restraining Daniel C. Rogers, Chairman of the Missouri Board of Mediation, from returning the plants, equipment and facilities of Kansas City-Transit, Inc., to the owner thereof, and from exercising further jurisdiction in the cause entitled City of Kansas City v. Daniel C. Rogers; also, to show cause why a writ of prohibition should not issue. The present, proceeding is an outgrowth of labor difficulties in the Kansas City Transit System. The property in question had earlier (on November 13, 1961) been seized by the State of Missouri, acting through the said. Daniel C. Rogers as the agent of the Governor, and under the provisions of § 295.180, RSMo 1959, V.A.M.S. (popularly known as the King-Thompson Law) “for the use and operation by the state of Missouri in the public interest.” By Executive Order entered on December 28, 1962, the Governor declared that the labor dispute in question remained unresolved, but found that a continued exercise of his seizure authority was not justified, and ordered the termination of his prior seizure order and the return of all said property to Kansas City Transit, Inc., effective at 11:59 p. m. on January 12, 1963. Immediately prior to the time fixed for such relinquishment, Respondent issued the order which we thereafter prohibited. That order was issued in an injunction suit filed by the City of Kansas City, Missouri, against the said Rogers, as already indicated. Respondent Kirtley has filed his return and Relator has moved for judgment on the pleadings. We shall not concern ourselves with the merits (although Relator has insisted that certain questions on the merits should be decided) for the result has been predetermined by action of the United States Supreme Court. In the case of Division 1287 of the Amalgamated Ass’n of Street, Electric Railway and Motor Coach Employees of America et al. v. State of Missouri, 374 U.S. 74, 83 S.Ct. 1657, 10 L.Ed.2d 763 (decided June 10, 1963, motion for rehearing overruled October 14, 1963) that Court held that our King-Thompson Act was invalid, at least in so far as concerns all seizure powers of the State. The Court there said (374 U.S. 74, 83 S.Ct. at 1662, 10 L.Ed.2d at loc. cit. 768): “The short of the matter is that Missouri, through the fiction of ‘seizure’ by the State, has made a peaceful strike against a public utility unlawful, in direct conflict with federal legislation which guarantees the right to strike against a public utility, as against any employer engaged in interstate commerce. In forbidding a strike against an employer covered by the National Labor Relations Act, Missouri has forbidden the exercise of rights explicitly protected by § 7 of that Act. Collective bargaining, with the right to strike at its core, is the essence of the federal scheme. As in Wisconsin Board, a state law which denies that right cannot stand under the Supremacy Clause of the Constitution.” Since the injunction suit in which Respondent’s order was issued was based solely upon the seizure rights of the State under said act and an insistence upon a continuation of the seizure, both the suit itself and Respondent’s order are now wholly without any basis in law.

Thus, while a determination of this matter has become more or less academic, the provisional rule in prohibition heretofore issued is made absolute: •

All concur.