author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Harvey F. EUGE, Appellant.
    No. 51030.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.

      No brief filed for appellant.
    Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

Defendant, Harvey F. Euge, was convicted of obtaining money with intent to cheat and defraud by means of a bogus check under § 561.450 RSMo 1959, V.A. M.S., by a jury in the Circuit Court of the City of St. Louis, and his punishment was assessed at imprisonment in the custody of the State Department of Corrections for a term of two years. Following rendition of judgment and imposition of sentence in accordance with the verdict, an appeal was perfected to this Court.

The defendant has filed no brief in this Court. The case is before us on the transcript of the record and the brief of the respondent. Therefore, we consider such of the assignments of the motion for a new trial as are sufficient to comply with the requirements of Rule 27.20(a), V.A. M.R. State v. Fraley, Mo.Sup., 369 S.W. 2d 195.

Defendant assigns as error the overruling of his motions for directed verdict wherein he alleged that under the evidence he is not guilty of the offense charged against him because the check in issue was merely a check returned for insufficient funds. This assignment of error is sufficient to dispose of this case on appeal.

Section 561.450 RSMo 1959, V.A.M.S., under which defendant was prosecuted, provides that: “Every person who, with the intent to cheat and defraud, shall obtain or attempt to obtain, from any other person, or persons, any money, property or valuable thing whatever * * * by means or by use, of any false or bogus check or by means of a check drawn, with intent to cheat and defraud, on a bank in which the drawer of the check knows he has no funds * * * shall be deemed guilty of a felony * * *.”

The charging portion of the indictment reads as follows:

“THE GRAND JURORS OF THE STATE OF MISSOURI, within and for the body of the City of St. Louis, now here in Court, duly impaneled, sworn and charged, upon their oath present, That HARVEY F. EUGE between October 17th, and the 22nd day of October, one thousand nine hundred and sixty-three, at the City of St. Louis aforesaid, unlawfully, feloni-ously, designedly, fraudulently, with intent to cheat BANK OF ST. LOUIS, INCORPORATED, a Corporation, in the care and custody of HAROLD RATHMAN, by means and by use of a certain check purportedly drawn by one DAYTON MITCHELL HORN on an account in the MANCHESTER BANK of ST. LOUIS, a Corporation, and dated October 17th, 1963 and that HARVEY F. EUGE did present and tender the aforesaid check to HAROLD RATHMAN and the said HAROLD RATHMAN relying on the purported genuineness of the said check and being induced and deceived thereby did then and there give to the said HARVEY F. EUGE the sum of forty-five dollars, lawful money of the United States; the money and property of the said BANK OF ST. LOUIS, INCORPORATED, a corporation; and the said HARVEY F. EUGE at the time unlawfully, feloniously, and with intent to cheat and defraud did obtain the aforesaid money and property from BANK of ST. LOUIS INCORPORATED, a corporation, and the defendant knew at the time he. tendered the said check that the name of DAYTON MITCHELL HORN was in fact the name of a fictitious person and that the aforesaid check was bogus; contrary to Section 561.450, Missouri Revised Statutes, in such case made and provided, and against the peace and dignity of the State.”

The State’s evidence justifies the following statement: On September 19, 1963, defendant Harvey F. Euge went to the Manchester Bank of St. Louis, deposited $40 cash in a checking account under the name Dayton Mitchell Horn and ordered checks printed. Mrs. Daisy Hayes, an employee of the Manchester Bank, identified defendant at the trial as the man who opened the Horn account. Defendant had an account at the Bank of St. Louis from December 31, 1959, until January 28, 1963, when it was closed by the bank. This account was in the name of Harvey F. Euge. On October 17 or 18, 1963 (there is a conflict in the evidence as to the correct date), defendant went to a teller’s window at the Bank of St. Louis and re-opened his account in the name Harvey F. Euge. He deposited a check in the amount of $45 on the Manchester Bank of St. Louis, drawn to cash, signed by Dayton Mitchell Horn, and endorsed on the back by Harvey Euge. He received a deposit slip in return showing a $45 deposit in the Harvey F. Euge account. Immediately thereafter he wrote a check in the amount of $45 on the Harvey F. Euge account in the Bank of St. Louis, presented it to the teller at the Bank of St. Louis, and was given $45 cash. The Bank of St. Louis processed the Horn check and it was returned by the Manchester Bank, marked “insufficient funds.”

The question is whether the proof supports a charge under § 561.450 RSMo 1959, V.A.M.S.

In construing § 561.450 RSMo 1959, V.A.M.S., we have pointed out m State v. Bird, Mo.Sup., 242 S.W.2d 576, 577, and State v. Robinson, Mo.Sup., 255 S.W.2d 811, 814, “ * * * that the legislature has distinguished between a genuine check drawn on a bank in which the drawer knows he has no funds and a false or bogus check, i. e., one drawn on a non-existent bank, or by or payable to a fictitious person. ⅜ * ”

In State v. Scott, Mo.Sup., 230 S.W.2d 764, 767, we held, “ * * * the State must prove the particular method to cheat and defraud which is prohibited by statute and which is charged in the information.” The indictment in the instant case does not charge defendant with obtaining money by means of a check drawn by him on a bank in which he knew he had no funds. The record affirmatively shows that funds were in the Horn account at the Manchester Bank when the Horn check was presented to it.

It was returned marked “insufficient funds.”

Therefore, the question narrows to whether the proof supports a charge that defendant obtained money with intent to cheat and defraud by means of a bogus check.

In State v. Todd, Mo.Sup., 372 S.W.2d 133, at 136, we stated: “* ⅜ * A bogus check is one drawn on a non-existent bank, or by or payable to a fictitious person. State v. Robinson, Mo., 255 S.W.2d 811, 814[2]; State v. Bird, Mo., 242 S.W.2d 576, 577[2]. All of the evidence tended to prove that the drawers of the checks were fictitious persons. Therefore, the pretended accounts were non-existent. Cheating and defrauding ‘by means or by use, of any false or bogus check’ is speci 'cally proscribed by § 561.450. * * *”

In State v. Todd, supra, payment of nine checks deposited was refused by the banks on which they were drawn and the evidence showed those banks did not have any accounts in the names of the purported makers. In State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, defendant obtained money by endorsing, and receiving cash for, a payroll check, allegedly drawn by a shoe company, which was not a check of the shoe company and which was drawn to a person not employed by the company, and by a person not authorized to draw checks in behalf of the company. There was substantial evidence that the bank had no account out of which the check could be paid. The payee was held to be a fictitious person and the evidence was held sufficient to sustain a conviction. In State v. Polak-off, 361 Mo. 929, 237 S.W.2d 173, the defendant, Abe Elmer Polakoff, signed a check using the name Mrs. Blanch Watson, but the evidence was that there was no money in the bank belonging to him in his name or in the name of Blanch Watson. In State v. Fraley, supra, defendant obtained money by endorsing, and receiving cash for, a check which named as payee a fictitious person not an employee of the company and signed by fictitious persons not authorized to sign checks for the company. The checks in all of these cases were clearly bogus checks.

These cases do not assist us in determining the issue in the instant case. Here, the alleged bogus check was written by defendant Euge under the assumed name of Horn on the Horn account in the Manchester Bank and there was money, though insufficient, in said account. The check was drawn by a fictitious person. Horn was fictitious. Was the check drawn by a fictitious person under the rule set forth in State v. Todd, supra, and therefore vio-lative of § 561.450 RSMo 1959, V.A.M.S.? We think not.

Section 417.200 RSMo 1959, V.A. M.S., provides that it shall be unlawful to transact business under a fictitious name without first registering said name with the Secretary of State, and § 417.230 RSMo 1959, V.A.M.S., makes failure to register a misdemeanor. However, a person may assume a different name from his true one and may make contracts under his fictitious name. Sims v. Missouri State Life Ins. Co., 223 Mo.App. 1150, 23 S.W.2d 1075, 1078; 65 C.J.S. Names § 9, pp. 9-11. In his dealings with the Manchester Bank, defendant assumed the name Horn. He entered into a contract with the bank that, in return for his cash deposit, the bank would, when demanded, pay funds from the Horn account in such sums and to such persons as the depositor should direct. 7 Am.Jur., Banks, § 503, p. 358. This contract with the bank was not unlawful, nor did it contemplate the performance of an unlawful act. Defendant deposited cash in the Horn account. If he contemplated drawing money out of the account by signing the Horn name, he contemplated obtaining money which was his property. Under these circumstances, defendant may have violated § 417.230, supra, a misdemeanor. However, his contract with the Manchester Bank was not void. Bassen v. Monckton, 308 Mo. 641, 274 S.W. 404; Kusnetzky v. Security Ins. Co., 313 Mo. 143, 281 S.W. 47, 45 A.L.R. 189. Had the Manchester Bank honored the check, defendant would have had no recourse against the bank.

Tn State v. Tomlinson, Mo.Sup., 364 S.W. 2d 529, defendant Tomlinson was charged with attempting to obtain money by means of a false check on the Bank of St. Ann given to National Food Store, to which check he signed the name of his brother-in-law, Larry D. Rohmann. Defendant had authority to sign Rohmann’s name to checks. Rohmann had an account at the bank some months prior to the day the check was written. The Court concluded that Rohmann and the defendant may have conspired to cheat and defraud the National Food Store but that, to convict the defendant, it must have been shown that the defendant knew when he signed the check that there were no funds in the bank.

In the case before us, defendant opened an account under the name Dayton Mitchell Horn by depositing $40 cash in the Manchester Bank. He subsequently drew a check in the amount of $45 on said account and signed it with the name Dayton Mitchell Horn. Defendant had authority to sign the name Dayton Mitchell Horn to the check. There was an account at the bank the day the check was written. Defendant could not have known when he signed the check that there were no funds in the Horn account because the evidence shows there were funds in the account. The check was returned marked “insufficient funds.” Under this evidence, we do not consider the check a bogus check under § 561.450 RSMo 1959, V.A.M.S. The determining factor is that there were funds, though insufficient, in the Dayton Mitchell Horn account when the check was written. It is possible that defendant could have been charged under § 561.460 RSMo 1959, V.A.M.S., for drawing an insufficient funds check. However, he was not charged thereunder and we do not rule the question here.

We consider this case to represent an exception to the rule announced in State v. Todd, supra, and cases cited therein, to the effect that a bogus check is one drawn on a non-existent bank, or by or payable to a fictitious person. Here, though the check was drawn by a fictitious person (defendant by use of the assumed name Horn), the check was not a bogus check because there was a Horn account in the Manchester Bank and money in the account when the check was drawn on the account. The check was drawn by a fictitious person but on an existing account. These facts distinguish the instant case from the Todd case where there was no evidence of existent accounts in the names of fictitious persons.

We hold the State’s evidence was insufficient to prove defendant guilty of obtaining money by use of a bogus check. The trial court should have directed an acquittal. The judgment is reversed and defendant discharged.

All concur.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    Thomas Glennon HALLEY, Jr., by Darlene Halley, His Next Friend, et al., Appellants, v. Marquis SCHOPP, Respondent.
    No. 51626.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.

      Schurr & Inman, Robert L. Inman, Clayton, for appellants.
    F. X. Cleary, Paul S. Brown, Daniel T. Rabbitt, Jr., Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   WELBORN, Commissioner.

This is an appeal from a judgment entered on a defendant’s verdict in an action for $52,500 damages for personal injuries. Separate actions, consolidated for trial, were brought by the injured minor plaintiff, Thomas Glennon Halley, Jr., through a next friend, and by his parents.

The appeal is here on an agreed statement of the case, as follows:

“This case was brought by Thomas Glennon Halley, Jr., a then 11 year old boy hereinafter referred to as Tommy, and his father and mother, Thomas Glennon Halley, Sr., and Darlene Halley, for damages resulting from personal injuries to Tommy which occurred July 10, 1963. The injury occurred when Tommy was a pedestrian crossing Emma Avenue, a public street in the City of St. Louis, and was struck by an automobile owned and operated by defendant. Immediately prior to the accident, Tommy and his older sister, Debbie, then age 13, were playing on the front porch of the Halley residence with two other children. A fairly heavy rain was falling and as the children were playing, a ball rolled off the porch and into the street. The Halley residence is located approximately in the middle of the block. Tommy went into the house for a raincoat which he threw over his head and shoulders and went across the street to retrieve the ball and was struck as he was coming back after he had picked it up. Emma Avenue in the area where the accident occurred ran in a general East-West direction and the Halley home was on the South side of the street. Defendant was operating his automobile in an easterly direction. Plaintiffs’ evidence was all to the effect that the accident occurred on the North half of Emma Avenue before Tommy reached the center of the street on his way back. Emma Avenue is a two-way street and an Ordinance of the City of St. Louis introduced and read to the Jury, requires that an automobile be operated on the right half of the road way.

“Plaintiffs’ witnesses as to liability were Tommy, his sister Debbie and an adult neighbor who lived several houses to the east of plaintiffs’ residence. All of those witnesses claimed to have observed the accident and testified to the facts that they claimed to have observed. Neither of the two neighborhood children playing on the porch with Tommy and Debbie were called as witnesses by plaintiffs or defendant.

“Defendant called a different adult neighbor who lived a little farther to the East than the neighbor called by plaintiff. This witness testified that defendant’s car was on the right half of the roadway. Defendant on cross-examination testified that the left wheels of his car were about at the center of the street.

“The Jury’s verdict was for the defendant and plaintiffs timely filed their Motion for New Trial with Notice to Take Same Up on June 4, 1965, which motion was overruled June 25, 1965.”

The two matters here submitted for review arose during defendant’s attorney’s closing argument to the jury. The first point is stated by plaintiffs as follows:

“Defendant’s attorney committed prejudicial error in arguing to the Jury why other children playing on plaintiffs’ porch at the time of the accident were not brought in as witnesses and compounded the error by making false and misleading statements to the Jury regarding their availability to defendant as witnesses.”

Mr. Cleary, on behalf of defendant, in his argument referred to the girls on the porch and said:

“They stopped for some reason on the porch, the three girls, and watched this little boy one year their junior — maybe some of the girls were his age, I don’t know. Where are they? I don’t know. What do they know about this accident? What would they say if they were brought in? I don’t know. Where are they? I don’t know. Aren’t they important people ? Don’t you think they would have some knowledge of what transpired? His Honor said in weighing what you have heard here, in passing judgment, take into consideration in this first instruction, the credibility of the witnesses. Weigh what they say, their interest in the result or outcome of the trial.”

“MR. INMAN: If the Court please, I’m going to object to Mr. Cleary’s line of argument about other independent witnesses that he has the names and addresses of. He knows where they are.

“MR. CLEARY: That is a false statement, your Honor. I have no such information.

“Mr. INMAN: If you don’t, you can get it.

“THE COURT: Let’s not get into that. Don’t make any allegations about what he has. Put your objection on a legal basis and I will rule on it. I will sustain the objection as far as availability of the witnesses.

“MR. CLEARY: I know not who they are. I do know one thing. They are not here. I brought in the police officer. I was interested because he took pictures, and I have no way of getting that information except by subpoena which I served on him. * * * Who is making the effort bringing in people here? Either side can subpoena Officer Smith and bring him in here and bring his records if they were available. I did my best in that respect.”

As shown by the transcript, plaintiffs’ only objection during the incident was sustained by "the trial court. Plaintiffs so acknowledged in their motion for new trial, in which they stated:

“Although plaintiff’s objection to this line of argument was sustained by the Court, no instruction by the Court to the Jury could have offset the harmful effect of such a highly prejudicial argument.”

Undoubtedly, there may be argument so harmful that no instruction by the court to the jury can offset its harmful effect. Certainly, if a trial court reaches such conclusion, as it did in awarding a new trial in Franklin v. Kansas City, 213 Mo. App. 154, 248 S.W. 616, cited by plaintiffs, the appellate court on review is not likely to disregard the trial court’s conclusion. However, as in the control of argument generally, the primary responsibility for such determination lies with the trial court. That court is in a position to determine how a jury might react to the particular argument in its “setting” or “background.” Phillips v. Vrooman, Mo.Sup., 251 S.W.2d 626, 630 [2, 3], There can be no doubt that an argument which seeks to reflect an unfavorable inference against a party for failing to produce witnesses who were equally available to both parties is prejudicially erroneous where the trial court overrules objection to such argument. Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506, 512. Likewise, the trial court may commit prejudicial error even when it sustains objection to such argument, if it fails in the circumstances to take further remedial action requested by the objecting party. Stephens v. Henning-sen, Inc., Mo.App., 358 S.W.2d 450. See also O’Donnell v. St. Louis Public Service Co., Mo.App., 246 S.W.2d 539, 544 [4]. In Hankins v. St. Louis-San Francisco Ry. Co., Mo.App., 31 S.W.2d 596, 600 [6-9, 10, 11], the court indicated that mere sustaining of an objection to argument of such nature, without, in the light of a further request for a mistrial, a full explanation to the jury and a severe reprimand to counsel, “could not remove the poison already injected.” However, the ultimate conclusion of the court was that such error, in any event, was not such as appeared to have influenced the verdict and therefore the judgment was affirmed. See Civil Rule 83.13(b), V.A.M.R.

We find no case and plaintiffs cite none in which an appellate court has concluded that argument to the effect of that here in question is so prejudicial that it requires overturning of the trial court’s denial of a motion for new trial in a case where the only objection to the argument was sustained and no further action by the trial court was requested at the time of the remarks. We do not consider the argument of such a nature as to cause a case such as this to be declared an exception to the general rule that when the trial court sustains an objection to improper argument and no further remedial action is requested, no error is presented for appellate review. Copeland v. Terminal R. Ass’n, 353 Mo. 433, 182 S.W.2d 600, 606 [7]; see Olsten v. Susman, Mo.Sup., 391 S.W.2d 328, 330 [3-6], and cases there cited.

Plaintiffs argue that the prejudicial effect of the argument to which objection was sustained was compounded by the remarks of defendant’s counsel, charging plaintiffs’ counsel with having made a false statement, and further, by the repetition of the argument to which objection was sustained. Again, we are confronted with the fact that plaintiffs’ counsel sought no action by the trial court on either of these matters. Certainly, the charge against the veracity of plaintiffs’ counsel is to be decried. However, instead of properly seeking relief at the hands of the trial court, plaintiffs’ counsel chose to direct a remark to opposing counsel. Even when the trial court, in effect, invited plaintiffs’ counsel to present a proper objection, no action was taken. (Plaintiffs do not here contend that the trial court’s remarks, prior to sustaining the objection, amounted to a rebuke or reprimand of their counsel.) The fact that plaintiff Tommy Halley’s deposition, taken by defendant, which identified the neighbor girls, had not been placed in evidence would not have prevented action by the trial court against defendant’s counsel for the statement attacking the veracity of plaintiffs’ counsel. However, since plaintiffs’ counsel sought no relief on this score, we cannot convict the trial court of error.

As for the repetition of the argument to which objection was sustained, again no objection was made to the renewal of the argument, leaving no proper basis for claim for relief here. Anderson v. Sutton, 316 Mo. 1058, 293 S.W. 770, 773 [7],

Plaintiffs’ second assignment of error is as follows:

“The Court committed prejudicial error in overruling plaintiffs’ attorney’s objection to defendant’s attorney’s argument that a pedestrian must exercise the same degree of care in keeping a lookout as a driver of an automobile must exercise.”

This assignment arises out of the following in defendant’s counsel’s closing argument :

“MR. CLEARY: * * * The Court tells you that the little boy was required to exercise ordinary care commensurate with that degree of care a boy eleven years of age would exercise. If you’re a man sixty years of age or forty years of age, you still would have to exercise ordinary care. Because you’re not driving an instrument like an automobile or a motorbus or a vehicle, a pedestrian is required to exercise ordinary care. He’s under just as much duty to keep a lookout as the driver of an automobile.

“MR. INMAN: Now, if the Court please, I object to that. That’s not the Court’s instructions to the jury. Mr. Cleary has intentionally misquoted, attempted to mislead this jury. I ask that portion be stricken and the jury instructed to disregard that portion of his argument.

“THE COURT: Objection overruled. The Court has already instructed the jury as to the law.

“MR. CLEARY: This little boy as Judge McMillian tells you in Instruction No. 5 cannot run blindly across the street. That’s not the law. He’s required to keep a lookout for his own safety, and when I say that Tom Halley was required to do that, I’m pointing that out to show the manner in which this accident occurred and to show non-liability on Mark Schopp, the driver of the automobile.”

Plaintiffs contend that the statement, “He’s under just as much duty” etc., is a positive misstatement of the law, in conflict with the written instruction to the jury and that the trial court, by overruling the objection to the argument, approved the erroneous statement.

Defendant submitted plaintiff Tommy Halley’s failure to keep a lookout as contributory negligence. Plaintiffs submitted an instruction properly defining the standard of care applicable to plaintiff Tommy. M.A.I. 11.04. We do not consider the argument objected to and the court’s ruling thereon to have amounted to the court’s approval of a misstatement of the law. The remark particularly objected to was prefaced by a proper statement of the standard of care imposed upon plaintiff Tommy. The remainder of the argument and the statement specifically pointed to were designed to impress upon the jury that Tommy did have a duty to keep a lookout and that such duty was not confined to motorists. Defendant was entitled to argue his theory of the case based on the court’s instruction and the evidence adduced.

The argument, considered as a whole, is not subject to the interpretation which plaintiffs place upon it. The effect of the court’s remark in overruling the objection was to direct the jury’s attention to the law as set out in the instruction. That was sufficient in the circumstances. Stewart v. Boring, Mo.Sup., 312 S.W.2d 131; Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969, 976 [15], See Anderson v. Duckworth, Mo.Sup., 383 S. W.2d 726, 728-729.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Charles GILOTI, Appellant, v. KENNEDY-STUBBERS DISTRIBUTING CO., Inc., Respondent.
    No. 51490.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.
    John R. Whitsitt, John W. Ehrlich, Kansas City, for appellant.
    Levy & Craig,.Kansas City, for respondent.
   HOUSER, Commissioner.

The plaintiff, the petition, the issue in the trial court, the judgment dismissing the petition for failure to state a claim upon which relief may be granted, the issues on appeal, and the plaintiff’s brief on appeal are identical with those in Giloti v. Hamm-Singer Corp., Mo.Sup., 396 S.W.2d 711, decided by Division No. 2 of this Court on December 13, 1965. An examination of defendant’s brief on this appeal reveals that the points and arguments are substantially the same as in that case. The only difference between the two cases is the name of the defendant, the names of the attorneys for the defendant and the name of the circuit judge. We approve and endorse the statement of facts, the reasoning and the decision of Division No. 2 in the prior case and therefore affirm the judgment dismissing the petition.

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.


text:
    STATE of Missouri, Respondent, v. Robert Earl WATSON, Appellant.
    No. 51396.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied March 14, 1966.
    Norman H. Anderson, Atty. Gen., Jefferson City, Claude W. McElwee, Jr., Sp. Ass’t. Atty. Gen., St. Louis, for respondent.

      Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellant.
   DONNELLY, Judge.

Appellant, Robert Earl Watson, was convicted of first-degree robbery under § 560.-120 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of Jackson County, Missouri, at Kansas City, and his punishment under the provisions of the Habitual Criminal Act, § 556.280 RSMo 1959 (as amended Laws 1959, S.B.No.117), was assessed at imprisonment in the custody of the Department of Corrections for a term of ten years. Following rendition of judgment and imposition of sentence, an appeal was perfected to this Court.

According to the evidence, on May 18, 1964, between 8:45 p. m. and 9:00 p. m., three men entered a liquor store at 3301 Brooklyn Avenue in Kansas City, Jackson County, Missouri. Preston D. Marlow, an employee, was working at a counter at the rear of the store. John Joe Giamalva, a co-owner of the store, was working at a counter at the front of the store. One of the men went to the back counter and two of the men went to the front counter. The man at the back counter fired a shot into some bottles and instructed Marlow to open his cash register. Marlow placed some money on the counter and the man picked up the money, fired a second shot, and ran out the front door. Meanwhile, at the front counter, one of the two men who remained in the front of the store pointed a .32 automatic pistol at Giamalva and ordered him to open his cash register. Both men reached into the cash register and took money out. The two men went out the door, another shot was fired, and Gia-malva was hit in the shoulder. The alarm button was punched, the police arrived, and a police officer found a .32 caliber shell casing on the floor of the store approximately ten feet from the door.

Appellant was arrested on May 19, 1964, at 3:50 p. m. at the marriage license bureau in the Jackson County Court House, and at 4:30 p. m. on said date was identified in person in a police “lineup” by Giamalva as one of the men who participated in the robbery.

At the trial, Giamalva identified appellant in the courtroom as one of the three men who entered the store. Giamalva stated that appellant was the man at his counter who did not have a gun and that appellant was right in front of Giamalva, about three feet away from him. He observed appellant at the robbery for a period of a minute and a half to two minutes.

Approximately $786 was taken in the robbery.

Appellant admitted the two prior convictions pleaded in the amended information.

Norval Joseph Helms testified he was a disc jockey at Little Caesar’s Lounge (which is located four blocks from the liquor store) and observed appellant at the lounge on May 18, 1964, from 7:00 or 7:30 p. m. until 9:00 or 9:30 p. m. John Williams, the manager of Little Caesar’s Lounge, testified that he noticed appellant at the lounge between 8 o’clock and 9 o’clock the evening of May 18, 1964, when he went to quell a commotion and appellant was there. He spent ten or fifteen minutes quelling the disturbance. Freda Vermont, a barmaid at Little Caesar’s, testified she went to work at 7:00 p. m. on May 18, 1964, and appellant came in right behind her. She testified she observed appellant at Little Caesar’s for three or four hours and saw him around 9:00 p. m. She thought appellant left arount 10:00 p. m. Barbara Reed testified that she saw appellant downstairs at Little Caesar’s the evening of May 18, 1964, about 7:00 p. m. and that appellant stayed down there two or three hours. She testified that he was there at 9:00 p. m. Rosemary Jackson testified that she saw appellant at Little Caesar’s about 6:30 p. m., May 18, 1964, and several times between 6:30 and 11 o’clock. Dorothy Walker, a barmaid, testified that she saw appellant at Little Caesar’s at 9:00 p. m., May 18, 1964. Ora Lee Watson, wife of appellant, testified appellant picked her up from work in front of the Post Office about 10:30 p. m., May 18, 1964, and she noticed nothing unusual about his appearance.

On October 29, 1964, the case went to the jury and a verdict of guilty of Robbery, First Degree was returned. On said date, appellant was given thirty days in which to file a motion for new trial and a pre-sentence investigation by the State Parole Board was ordered by the trial court. On November 27, 1964, a motion for new trial was overruled and it was ordered by the trial court that sentencing be deferred, pending receipt of presentence investigation from the State Parole Board. On March S, 1965, appellant appeared before the trial court in person and with his attorney, and his punishment was assessed at ten years in the custody of the Department of Corrections.

Appellant first alleges that the trial court erred in failing to indicate the sentence to be imposed prior to the expiration of the time for filing of appellant’s motion for new trial, and, therefore, deprived appellant of the opportunity to raise the questions of validity or ex-cessiveness of the sentence in his motion for new trial. Appellant quotes from State v. Grant, Mo.Sup., 380 S.W.2d 799, at page 802, as follows: “The determination of the punishment must be made after the conviction and should be made before the motion for a new trial is prepared and filed in order to give defendant’s counsel an opportunity to assign error with respect thereto in the motion. It was therefore in order for the court to determine the punishment after the jury had returned its verdict and been discharged.”

This statement relied on from the Grant case was made in connection with the determination of “the nature and’ legal effect of what occurred immediately after the verdict was returned and the jury discharged,” 380 S.W.2d 801. At that time the court called on counsel to state their views as to what the punishment should be, then required the defendant to stand and stated that it “will be the judgment” of the court that the defendant be sentenced to a stated term of imprisonment. This opinion holds the legal effect of this episode was to assess or determine the punishment under the Habitual Criminal Act and was not a formal judgment and pronouncement of sentence. The Grant case holds that it was proper to indicate to the parties at that time what the punishment would be, but it does not hold it would be prejudicial error to fail to do so before the motion for new trial was filed. In the Grant case a presentence investigation was not ordered under Rule 27.07(b), V.A.M.R., as was done in the instant case. Further, at page 803 of the opinion in the Grant case, it was expressly held that a judgment imposing sentence prior to the filing of a motion for new trial would be illegal and ineffective, citing State v. Withers, Mo. Sup., 347 S.W.2d 146, 148. If presentence investigation is not ordered, the trial judge may, after conviction and before the filing of the motion for new trial, indicate the punishment he intends to assess. However, this indication by the trial court does not constitute the judgment. Rule 27.20, V.A. M.R., and § 547.030 RSMo 1959, V.A. M.S., require that the motion for new trial shall be filed before judgment. When a motion for new trial is filed and presen-tence investigation ordered, they must be considered and ruled upon prior to judgment when sentence is imposed by the court. State v. Jaeger, Mo.Sup., 394 S.W.2d 347, 354. Appellant cites State v. Rizor, 353 Mo. 368, 182 S.W.2d 525, for the proposition that relief for excessive punishment is sought in a motion for new trial and is a cognizable question on appeal if there is evidence of passion and prejudice. The Rizor case does not assist appellant. It was decided long before the amendment in 1959 of the Habitual Criminal Act (§ 556.280 RSMo 1959), applicable here, which requires that punishment shall be determined by the trial court and not by the jury.

How then may a defendant in a case brought under the Habitual Criminal Act raise the question of validity or ex-cessiveness of sentence in his motion for new trial when judgment must be entered subsequent to disposition of his motion for new trial? The answer is that he cannot. However, he is not without remedy. These questions are reviewed on appeal under Rule 28.02, V.A.M.R. State v. Hurtt, Mo. Sup., 338 S.W.2d 876; State v. Kiddoo, Mo. Sup., 354 S.W.2d 883. Of course, in a case where the Habitual Criminal Act is not invoked, and the jury assesses the punishment (as in the Rizor case, supra), a defendant would be well advised to raise the question of excessiveness of punishment in his motion for new trial. See Rules 27.04 and 27.06, V.A.M.R., and §§ 546.430 and 546.460 RSMo 1959, V.A.M.S.

We have reviewed the matters relating to judgment and sentence and they are in all respects proper. Appellant’s punishment was assessed at ten years in the custody of the Department of Corrections and is not excessive. State v. Politte, Mo.Sup., 249 S.W.2d 366; §§ 560.120 and 560.135 RSMo 1959, V.A.M.S. and § 556.280 RSMo 1959, V.A.M.S. (as amended Laws 1959, S.B.No.117).

Appellant next alleges that the trial court abused its discretion in failing to grant appellant a new trial because of newly discovered evidence. This evidence consisted of a question and answer statement taken November 24, 1964, by a court reporter from one Andrew McKelvy, while incarcerated in the Jackson County Jail. McKelvy stated therein that he, McKelvy, was present at “a robbery that occurred sometime ago at 33rd and Brooklyn,” and that appellant, Robert Watson, “didn’t take part in it.”

A new trial may be granted for newly discovered evidence. Section 547.020 RS Mo 1959, V.A.M.S.; Rule 27.19, V.A.M.R. In State v. Green, Mo.Sup., 305 S.W.2d 863, at page 873, the Court stated: “The next point argued and briefed is that the court erred in refusing to grant a new trial on the ground of newly discovered evidence. The trial court is vested therein with much discretion in deciding among other things: (a) whether the evidence newly discovered is so material that it would probably produce a different result; (b) whether the failure to produce it at the trial was due to a want of diligence; and (c) whether it is merely cumulative. State v. Jones, Mo., 221 S.W.2d 137; State v. Sherry, Mo., 64 S.W.2d 238; State v. Vinson, Mo., 107 S.W.2d 16; State v. Thomas, Mo., 82 S.W.2d 885; State v. Brown, Mo., 245 S.W.2d 866. As is the rule in similar matters, an abuse of this discretion should appear in order to justify a reversal. And the courts do not favor the granting of new trials on this ground. Gromowsky v. Ingersol, Mo.App., 241 S.W. 2d 60; State v. Bybee, 149 Mo. 632, 51 S.W. 470.”

McKelvy’s statement was attached to appellant’s motion for new trial, was considered by the trial court, and appellant’s motion for new trial was overruled. Did the trial court in so doing abuse its discretion? We think not. A review of McKelvy’s statement is in order. McKelvy stated the robbery took place about six in the evening. It took place between 8:45 and 9:00 p. m. He stated a liquor store was robbed. He was accurate in this respect. McKelvy did not know the corner or the intersection on which the liquor store was located. He did not recall the weather conditions at the time of the robbery. He did not remember how he was dressed at the time. He thought the robbery occurred around the first of June, 1964. It occurred May 18, 1964. He did not recall how many people were in the store nor the amount of money taken. He stated the robbery was conducted at gun point. He was accurate in this respect. He stated there were shots fired but did not know who fired the shots. He did not know whether anyone was hit nor whether a scuffle ensued during the course of the robbery. He stated that appellant was not present at the time of the robbery. It is implied throughout the statement that McKelvy committed the robbery. However, he never expressly admitted his participation.

We are of the opinion that the trial court did not abuse its discretion in failing to grant appellant a new trial. The trial court considered the newly discovered evidence and found the facts against appellant. We hold that such action was within the discretion of the trial court and there was no abuse of discretion in this case. State v. Waters, 144 Mo. 341, 347, 348, 46 S.W. 173, 175; United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562; Jones v. United States, 4th Cir., 279 F.2d 433; Jeffries v. United States, 9th Cir., 215 F.2d 225, 15 Alaska 83; Connelly v. United States, 8th Cir., 271 F.2d 333; Underhill’s Criminal Evidence 5th Edition, § 430.

We have heretofore reviewed the matters of sentence and assessment of punishment under Rule 28.02, V.A.M.R. The amended information was sufficient and proper. Section 560.120 RSMo 1959, V.A. M.S., and § 556.280 RSMo 1959 (as amended Laws 1959, S.B.No.117); State v. Foster, Mo.Sup., 249 S.W.2d 371, 372, 373; State v. Brewer, Mo.Sup., 338 S.W.2d 863, 867. The verdict is sufficient. It is responsive to the charge made in the amended information and certain as to the offense intended. State v. Kennebrew, Mo.Sup., 380 S.W.2d 293, 295. It did not assess punishment nor did it find the prior convictions. However, these duties, since the effective date of the amended Habitual Criminal Act, § 556.280 (Laws Mo.1959, S.B.No.117), were properly performed by the trial judge. State v. Maxwell, Mo.Sup., 376 S.W.2d 170, 174, 175; State v. McWilliams, Mo.Sup., 370 S.W.2d 336, 338, 339; State v. West, Mo. Sup., 356 S.W.2d 880, 882.

The judgment is affirmed.

All concur.


author: PRITCHARD, Commissioner.

text:
    Myrtle CALVERT, Appellant, v. SUPER PROPANE CORPORATION, a corporation, d/b/a Camden S. P. Gas Company, and Basil Dean, Respondents.
    No. 51281.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.
    Opinion Modified on Court’s Own Motion and Motion for Rehearing or for Transfer to Court En Banc Denied March 14, 1966.

      Morgan M. Moulder, Camdenton, for appellant.
    Donnelly & Donnelly, David Donnelly, Lebanon, for respondents.
   PRITCHARD, Commissioner.

In this $25,000 action for damages for the wrongful death of plaintiff’s husband, George William Calvert, the trial court directed the verdict and entered judgment against plaintiff and in favor of both defendants. The grounds upon which the court acted were that the deceased was con-tributorily negligent as a matter of law in being on the wrong side of the road, and that there was no evidence of any negligence of Basil Dean, the driver of the pickup truck involved in the head-on collision with deceased.

The witnesses gave the following testimony relative to the issues on this appeal:

Howard Parrish, who lives and operates a store at the junction of Highway 5 and the old Ha Ha Tonka road, saw deceased at his store on the afternoon of December 16, 1963. Later Parrish delivered a load of wood and then returned by way of the Ha Ha Tonka road. He came upon and saw two vehicles in front of the Homer (“Jack”) Martin home, a pickup truck and a 1956 Chevrolet, the latter being pointed west and the former being pointed east. Both vehicles were on the south part of the road in the single set of tracks or ruts, and after they hit they were approximately two feet apart. It had been snowing and freezing, but the road was passable. There was just one track of ruts all the way from the junction and beyond the Martin home which all traffic was using. The road was of gravel, with no marked center line. Parrish passed the vehicles and made another set of tracks. He had to go around the north side of the road to get around them, and there was plenty of room therefor.

Earl Calvert, son of plaintiff and deceased, arrived at the scene after dark with Trooper Ralph Rider. He saw his father’s car and the S. P. Gas Company’s truck head on in front of the Martin home. The Chevrolet’s left front fender was driven back 15 to 16 or 17 inches-; the right front fender was not damaged and its headlight was still in place; and the radiator was pushed back a foot or two over the motor. He measured the width of the Chevrolet to be six feet.

In front of the Martin home the road is 18 to 20 feet wide. The road was slick and icy, but Earl could not say which side of the highway had been traveled because there had been several cars there before he arrived. The Chevrolet was sitting with its back toward the middle, the north side, and with reference to the center of the roadway the front of it was a little past the center to the south. The S. P. Gas truck was to the west of the Chevrolet and immediately in front of it and both vehicles were in the traveled tracks in front of the house.

Homer (“Jack”) Martin, who lived one-fourth of a mile from Highway 5 on the Ha Ha Tonka road, came home from work about 4:00 or 4:30 p. m., and saw the two automobiles which had been involved in a collision in front of his home. There were no people then present. He arrived before the cars had been moved. The road was wet, snowy and icy and there were single lane tracks which staggered or weaved back and forth in the middle of the road, but which were located approximately in its center. The snow was soft and wet on the right and left of the traveled portion. At the scene of collision the south track was a little bit closer to the ditch than the north track. Both the Chevrolet and the S. P. Gas truck were sitting in the one set of tracks which had been made, and the tracks were in the center of the road, and with relation to the center the back end of the S. P. Gas truck was a little north. When the photographs of the scene were taken he stood in the position, as shown thereon, where he saw the vehicles.

Mrs. Ruby Martin, wife of “Jack” Martin, was in the kitchen of her home about 3:30 p. m., on December 16, 1963. The window of that room faced west and at that time she saw a pickup truck traveling in an easterly direction. She picked up a coffee pot from the end of the dining table in the kitchen and took it to the heating stove in the front room, six or seven steps, and at that time she heard a crash which shook the windows. Immediately after-wards she went to the edge of the road and helped bring Mr. Calvert into her house. On cross-examination she testified that she formed a judgment that the pickup truck was going approximately 30 to 35 miles per hour.

R. W. Vincent, the County Surveyor, testified that he measured a distance of 660 feet from an automobile parked on the county road (to the west of where Mr. Martin found the vehicles), as shown in the photograph, Plaintiff’s Exhibit 5, to the point of the location of the collided vehicles where Mrs. Martin was standing. The objection of this testimony upon the ground that “the positions respecting the terminal points have not been identified,” was overruled, Mr. Vincent testified that the rate of speed to go 660 feet in 6 seconds is 75 miles per hour, and in 7 seconds 69.3 miles per hour.

Defendant Basil Dean testified that on the day of the collision he had been delivering gas on the Ha Ha Tonka road, and was returning when the collision occurred. The point of collision, with reference to the “Jack” Martin home, was just west thereof on the side of the hill. His speed was approximately 15 to 20 miles per hour. There was only one portion of the road where all the traffic was traveling, and the part of the road, right or left (of the tracks), was usable to pull over to pass; it was snowy and slick. In the collision the left sides of both vehicles were damaged. When he first saw the Calvert car (the top of it east of the hill) Dean was 120 feet from the point of collision, and one and one-half to two seconds elapsed from the time he first saw the Calvert car until the collision occurred. Dean’s brakes were working at the time. He hit the brakes and the truck slid, and he attempted to swerve to the right but the truck would not swerve.

The photographs taken later, admitted into evidence and with testimony related thereto, show that the general terrain of the Ha Ha Tonka road in the vicinity of the collision was unchanged from the time thereof. From the west the roadway inclines downward, then upward, on a rather long curve to the left some distance to the point where the vehicles were found. In front of the Martin home is the peak of a small hill.

On rebuttal, Arval Crall testified. He went out to the scene to help and to stop traffic coming over the hill. He found the Ha Ha Tonka road about as slick as he ever drove on, and there was just one lane, one path for the trucks, and to the right and left thereof there was just ice and snow— “[I]t was just rough that wasn’t driven into.” The cars were sitting practically in the one beaten path. On the left-hand side, as one goes west (as was Mr. Calvert), there was approximately 3 to 4 feet to the left side of the bank, and to the other side it was 7 or 8 feet. With reference to the center of the road, probably one-third of his car was on the north or his right side of the road.

Assuming, as defendants contend, that Mr. Calvert was not driving his Chevrolet upon the right half of the roadway, and that such was contrary to § 304.015, subd. 2, RSMo 1959, V.A.M.S., which provides, “Upon all public roads or highways of sufficient width a vehicle shall be driven upon the right half of the roadway, * * ” (after which follows statutory exceptions), and noting further that the jury could find same to be contributory negligence, yet we cannot, under this record, hold that such would amount to contributory negligence as a matter of law. Under all of the evidence regarded as true and beneficial to plaintiff, these facts existed: That this was a narrow, graveled, rural county road, 18 to 20 feet wide, with a graded portion 14 feet wide; that at the time of the collision the road was being used by the traveling public in a single two-track lane which was located approximately in its center, but which at the scene of the collision came within three or four feet of the left (south) bank of the road; that the whole of the Ha Ha Tonka road was, on the day in question, hazardous to driving, slick and icy (about as slick as witness Crall ever drove on), with soft, wet snow on either side of the beaten, traveled lane, which roadsides were “just rough that wasn’t driven into.” Upon finding these facts the jury could have concluded that deceased was not negligent in following the single, two-lane track that everybody on this country road was using, and that if the soft, wet snow on either side of the traveled track were used it would be more hazardous to deceased’s safety than the traveled portion. Whether deceased did what any reasonable man would have done in following the tracks, or whether he should have, in the exercise of the highest degree of care for his own safety, driven into the rough, soft and wet snow on the sides to the track, was for the jury to determine under all of the facts and circumstances. This is an issue upon which reaonable minds might reach different conclusions, and taking of the same away from the jury constituted error. Capriglione v. Southwestern Bell Telephone Co., Mo., 376 S.W.2d 205; Tharp v. Monsees, Mo., 327 S.W.2d 889.

We are cited by plaintiff the case of Tener v. Hill, Mo.App., 394 S.W.2d 425. There it was contended that plaintiff’s driver (a coadventurer) was guilty of negligence as a matter of law in approaching and entering an intersection on the south, left or wrong side of the road in violation of said § 304.015, subd. 2. Plaintiff’s evidence there tended to show that the part of the 23rd Street (upon which her driver was traveling) north of the center line and east of the intersection was impassable, and that he drove south of a manhole cover because it protruded above the surface and constituted a dangerous obstruction. There were several descriptions of the condition of the surface (as here, that the sides of the road were icy, wet snow and “rough that wasn’t driven into,” as against defendants’ evidence that the sides of the road could be negotiated in safety by passing vehicles). The court went on to say that it was a jury question whether plaintiff’s driver followed the tracks into and through the intersection out of necessity or for considerations of safety, and we likewise hold that these considerations in the case at bar were for the jury.

Some of the older cases under repealed (in 1953) § 304.020(2), RSMo 1949, V.A. M.S., providing that “All vehicles when in operation shall be kept as close to the right-hand side of the highway as practicable,” are helpful to plaintiff’s position here. In Moss v. Stevens, Mo., 247 S.W.2d 782, a truck driver was sought to be charged in a refused instruction with the statutory violation in passing a parked tractor from whence the decedent there came under the rear wheels of the truck and was killed. The accident happened on a county road with one lane of travel. This court, in holding the instruction properly refused, said, loe. cit. 785 [3, 4] : “The county road on which the accident occurred, according to plaintiffs’ and defendant’s witnesses, was a one lane highway with but two wheel tracks. * * * The requirement to operate motor vehicles ‘as close to the right-hand side of the highway as practicable’ * * * does not receive a literal construction but has reference to the attending circumstances and to the usable or passable way.” In Hadley v. Smith, Mo.App., 268 S.W.2d 444, the plaintiff drove from a north-south, one-lane, two-wheel tracked, gravel road, with soft or loose gravel at its edges, into an intersection, and it was claimed that he was contributorily negligent as a matter of law, which contention was denied, the court saying, loe. cit. 448 [2], that the statute [§ 304.020(2), supra] had reference to the attending circumstances and to the usable or passable way, and the fact that plaintiff admitted that his car was in the one-lane, usable or passable way, did not convict him of negligence as a matter of law. See also Harmon v. Fowler Packing Co., 129 Mo.App. 715, 108 S.W. 610, a street obstruction case; Darnell v. Ransdall, Mo.App., 277 S.W. 372; and see Miles v. Gaddy, Mo., 357 S.W.2d 897, 902 [4], for other recognized “excuses” or “excusable violations” (of an emergency nature) of statutory violations.

Defendants cite and rely upon Justice v. Malin, Mo., 336 S.W.2d 77. In that case, although the evidence concerning the scene of collision showed that the two hills, the approaches thereto, and the hollow between them were covered with a coating of ice, over which was a thin layer of snow, there was no evidence that the traveling public had been using a single, two-track lane with soft, wet snow to either side thereof, as we have here. In the Justice case there was no evidence of why decedent suddenly changed the course of his car and drove directly into the path of defendant’s car, there was no evidence of the rate of speed of either car or the distance between the hills, or where defendant’s car was when decedent’s car came over the hill which was south of the hill upon which the collision occurred in decedent’s wrong lane. Hence the court held, and properly so, that plaintiff’s evidence, standing alone and unexplained, convicted decedent of negligence as a matter of law. Here, the facts and circumstances of the traveled two-track lane and hazardous sides of the road, as the jury could find, tend to explain why deceased was on the south (left) portion of the roadway, and these facts and circumstances, not present in the Justice case, distinguish it.

With respect to the propriety of the trial court’s action in directing a verdict against plaintiff because of no evidence of any negligence of defendant, Dean, we examine the record and view all of the evidence in its light most favorable to plaintiff (as we have done also on the issue of deceased’s contributory negligence). Christie v. Gas Service Company, Mo., 347 S.W.2d 135, 137 [1]; Kettler v. Hampton, Mo., 365 S.W.2d 518. If the evidence reveals with any substantiality any pleaded theory of defendants’ negligence, then a submissible case thereof was made. Reynolds v. Thompson, Mo., 215 S.W.2d 452; Nelson v. Wabash Railroad Company, Mo., 300 S.W.2d 407. One alleged ground of primary negligence of defendant, Dean, is that he “Operated and drove said G.M.C. motor vehicle at a high, reckless, rapid and dangerous rate of speed under the circumstances then and there existing.” The evidence most beneficial to plaintiff as to the speed at which Dean was driving the pickup truck may be computed from his testimony that he was 120 feet away from the point of collision when he first saw the top of Mr. Calvert’s Chevrolet over the -hill, and that 1½ to 2 seconds elapsed from the time he first saw him until the collision occurred. This testimony of distance and time would place his speed from 40.9 miles per hour to 54.5 miles per hour prior to collision. Mrs. Martin testified that she formed a judgment as to the speed of the truck when she saw it through her kitchen window of 30 to 35 miles per hour, which would have been as it approached the point of impact from some precisely unknown distance to the west. The slope was there down hill. We attach no importance to the computation of speed by witness R. W. Vincent as having no probative value. Defendants’ objection thereto on the stated ground, supra, should have been sustained.

Defendants contend that there was no showing that the speed at which Dean was driving was the proximate cause of the collision. It is argued, and the quote is made from Miller v. Fink, Mo.App., 387 S.W.2d 173, 176, “Plaintiff states there is no evidence whatever to show that if plaintiff had entered the intersection at a slower speed that the collision could have been avoided and cites the case of Copher v. Barbee, Mo.App., 361 S.W.2d 137, 148, which sets out the general test of causal connection between negligence and injury. To be more specific, it should be noted that the courts of this state have held that excessive speed is not the proximate cause unless it prevents the operator of the vehicle traveling at the excessive speed from avoiding the accident. It must be shown therefore that the collision and resulting injuries would not have occurred except for the excessive speed shown by the evidence.” There is also the rule, conceded by the parties here, that the rule requiring the causal connection of excessive speed and injury does not require direct, specific proof. Miller v. Fink, supra, loe. cit. 387 S.W.2d 176 [3, 4], wherein the case of Watt v. St. Louis Public Service Company, Mo., 354 S.W.2d 889, 891, is quoted. We take the rule, that direct, specific proof of causal connection between excessive speed and injury is unnecessary, to mean that a party need not always prove at what slower speed the injury could have been avoided. “It is sufficient if the facts proved are of such a nature and are so connected and related to each other, that the conclusion therefrom may be fairly inferred.” Watt v. St. Louis Public Service Company, supra, loe. cit. 354 S.W.2d 891 [1-3]. In Berry v. Harmon, Mo., 329 S.W.2d 784, 789 [2-4], we said, “Whether a particular speed, not unlawful by reason of statute or ordinance, is excessive depends upon the condition of the highway and all the surrounding circumstances and conditions existing at the time. Chenoweth v. McBurney, 359 Mo. 890, 224 S.W.2d 114, 118(9, 10); Wood v. Claussen, Mo.App., 207 S.W.2d 802, 809(4, 5) ," Ritchie v. Burton, Mo.App., 292 S.W.2d 599, 604.” See also Steele v. Goosen, Mo., 329 S.W.2d 703, 710 [8-10], where it was held that a case was made for the jury on negligent speed (driving 50-55 miles per hour) by plaintiff’s admissions and testimony as to facts and circumstances existing north of a “patch of fog” on the highway; and Greenwood v. Vanarsdall, Mo.App., 356 S.W.2d 109, 112 [1-3], where it was said that excessive speed may be proved by circumstances, and skidding, when combined with surrounding circumstances, may be sufficient to justify the inference of a high and dangerous rate of speed.

A speed of 40.9 to 54.5 miles per hour, or even that estimated by Mrs. Martin of 30 to 35 miles per hour, under the circumstances of this hazardous, slick road, whereon there was a single two-track lane upon which Dean was traveling, with soft, wet snowy areas either side thereof, and upon which he could anticipate that some vehicle coming from the opposite direction might also be using, was one fraught with danger unless Dean drove at such a reduced speed that he could stop or otherwise control his pickup truck so as to avoid a suddenly appearing oncoming vehicle. These facts and circumstances, and that of Dean’s actual slide when he put on his brakes, are sufficient to support an inference of excessive speed, and to show a causal connection between such speed and the injury to plaintiff’s husband. A submissible case was made as to the assignment of negligence of excessive speed and the trial court erred in directing a verdict for defendants thereon.

No submissible case was made upon plaintiff’s assignment of humanitarian negligence of Dean’s failure to slacken his speed (which he testified to have been 15 to 20 miles per hour when he saw the top of Mr. Calvert’s car over the hill), or to have stopped prior to collision after it became apparent that deceased was in a position of imminent peril of being injured. Although there was evidence that Dean saw the top of the oncoming Chevrolet over the hill, there was no evidence that it was then on the wrong side of the road, and that it would continue thereon in the traveled tracks. The distance from the point of collision east to Mr. Calvert’s car was not shown, nor was his speed in evidence. Under this state of the record the jury would have to speculate and conjecture as to when Mr. Calvert came into a position of imminent peril, which means certain, immediate, and impending, and not -remote, uncertain or contingent, and likelihood or bare possibility of injury is not sufficient to create “imminent peril.” Ornder v. Childers, Mo., 327 S.W.2d 913, 916 [3]; Wilson v. Toliver, Mo., 305 S.W.2d 423, 427 [1, 2], Because there was no evidence that deceased was in a position of imminent peril at the time Dean first saw him, even though he may subsequently have come into such position ■ — i. e., to be then discovered by Dean on the wrong side of the road and pursuing his course to impact, there is no showing of any distance and time after Dean first saw the top of the Chevrolet within which and with the means and appliances at hand that Dean (obviously moving toward deceased’s Chevrolet after he first saw him) could have, with safety to himself, averted the collision. Thus the whole matter is left to speculation and conjecture, and no situation was shown in evidence upon which the humanitarian doctrine would seize.

Plaintiff’s remaining point deals with the exclusion of testimony by the trial court. Although plaintiff made a general assignment of error with respect thereto in her motion for new trial, she made complete offers of proof during the trial, and in view of Civil Rule 79.03, V.A.M.R., that “Where definite objections or requests were made during the trial in accordance with Rule 79.01, including specific objections to instructions, a general statement in the motion of any allegations of error based thereon is sufficient,” sufficiently preserves the same for review. Defendants’ contention that the propriety of the.court’s action in excluding evidence is not before us is therefore overruled.

Plaintiff offered to prove that deceased made statements sometime after the collision to the attending physician in Camdenton, Missouri, relative to the facts of the collision. Such statements were hearsay and not a part of the res gestae as claimed. There was no proof, or offer of proof, as to the condition of deceased during the interim. The same as to statements made by deceased in the presence of plaintiff some 40 minutes after the collision. There is no evidence of spontaneity of deceased’s statements, nor a sufficient offer of proof relative thereto, which would supply that necessary element of a res ges-tae statement. Compare Leahey v. Cass Ave. & F. G. Ry. Co., 97 Mo. 165, 10 S.W. 58, where it was held that statements made by a deceased hoy as to how he was injured after he had been removed from the scene of the accident, and the persons connected with the accident were separated, were inadmissible; Robyn v. New Amsterdam Casualty Co., Mo.App., 257 S.W. 1065, where deceased’s statements made sometime after the accident and after arrival at another’s home, were held to be a mere recital, or narrative of a past event, and were no part of the res gestae; Venters v. Bunnell, 230 MoApp. 1190, 93 S.W.2d 70.

Another offer of proof was made concerning a re-enactment, or test, of the movements of Mrs. Ruby Martin ostensibly in order to time her from when she observed a truck on the Ha Ha Tonka road from her kitchen window until she had walked to her living room where she placed a coffee pot upon the heating stove therein, at which time she heard the crash of the collision. The admission of evidence of such re-enactment, or test, was a matter peculiarly within the discretion of the trial court, Lynch v. Missouri-Kansas-Texas R. Co., 333 Mo. 89, 61 S.W.2d 918, 921. Although the conditions of the test were shown to be substantially the same as those existing at the time of the collision, Cook v. St. Joseph Ry., Light, Heat & Power Co., 232 Mo.App. 313, 106 S.W.2d 38, and were admissible, there was no abuse of discretion in view of Mrs. Martin’s received testimony that she made 6 or 7 steps and 6 or 7 seconds elapsed from the time she saw the truck in the road until she heard the crash.

The judgment is reversed and the case is remanded for new trial.

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.