author: HYDE, Judge.

text:
    Otis EDWARDS, Plaintiff-Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and Robert P. Adams, Defendants-Respondents.
    No. 49275.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.

      Melvin L. Hertzman, Ginsberg & Wool, St. Louis, for appellant.
    William M. Corrigan, St. Louis, for respondents.
   HYDE, Judge.

Action for $21,500.00 damages for personal injuries sustained in a collision between the automobile plaintiff was driving and defendants’ bus. Verdict and judgment were for defendants and plaintiff has appealed.

Plaintiff claims error in giving instructions 6 and 7 at request of defendants. Defendants have filed a motion to dismiss appeal and while plaintiff’s brief does not fully comply with the rules it is sufficient for the points presented and the motion to dismiss is overruled.

Plaintiff submitted solely on humanitarian negligence. He said he drove west to about the middle of the 4100 block of St. Louis Avenue (50 feet wide) stopping near the north curb; then desiring to go to his house on the south side of the street he made a U-turn and his car was struck by defendants’ bus after he had crossed the center line of the street and reached a point seven or eight feet south of it. Plaintiff said when he stopped on the north side of the street he saw an eastbound bus discharging passengers about 250 feet west (at the Whittier Street intersection) and that the bus and his car started in motion about the same time. Plaintiff’s speed in making the turn was estimated at between five and ten miles per hour. The speed of the bus prior to the collision was twenty miles per hour. The driver estimated it had been reduced to 15 miles per hour at the point of impact. The bus driver said he first saw plaintiff’s car when it was 10 or 12 feet north of the center line of the street when the bus was 40 to 50 feet west of the point of impact, and that he then “started to apply the brakes and swerve to the right and blew the horn.” Plaintiff had evidence that the bus could be stopped in 44 feet at a speed of 20 miles per hour, and that his own car could be stopped in 16)4 feet at 10 miles per hour. (Reaction times included.) As the bus traveled eastwardly on St. Louis Avenue its left side was from one to four feet south of the center line. The collision occurred just before noon of a clear day on dry pavement.

Instructions 6 and 7 were as follows:

No. 6. “The Court instructs the jury that if you find and believe from the credible evidence that on the occasion mentioned in the evidence the eastbound motor bus mentioned in the evidence was traveling at a speed of approximately 20 miles an hour in the eastbound traffic lane (with the right end of said motor bus 3 to 4 feet south of the center line of St. Louis Avenue,) and if you find that (when said motor bus was approaching the middle of the block east of Whittier Street the automobile driven by plaintiff started up from the north curb of St. Louis Avenue) and that when said automobile was approximately 12 feet north of the center line of St. Louis Avenue it was headed in a south, southwest direction (into a rU’ turn) and that at that time the motor bus was 40 to 50 feet west of said automobile, and if you find that then Mr. Adams blew the horn on said motor bus, applied the brakes and swerved 3 or 4 feet to the south in an attempt to avoid colliding with plaintiff’s automobile, and if you find that plaintiff (continued to drive toward the south into a ‘U’ turn) and crossed the center line of St. Louis Avenue and drove directly into the path of and in close and dangerous proximity to said motor bus, and if you find that Mr. Adams, in the exercise of the highest degree of care, (could not avoid colliding with said automobile,) and if you find that Mr. Adams was at all times exercising the highest degree of care in the operation of said motor bus and was not negligent in any manner submitted to you in Instruction No. 1, then, in that event, the plaintiff, Otis Edwards, is not entitled to recover herein, and your verdict must be for the defendants.” (Parts of instruction criticised by plaintiff emphasized.)

No. 7. “The Court instructs the jury that if you find and believe from the evidence that at the time plaintiff entered a position of imminent peril, if you so find, it was then too late for the operator of the motorbus mentioned in the evidence in the exercise of the highest degree of care and with the means and appliances at hand, consistent with his own safety and the safety of the passengers in said motorbus and the equipment which he was operating to have stopped said motorbus before striking the plaintiff and thus and thereby to have avoided the collision mentioned in the evidence, then, in such event, plaintiff is not entitled to recover from the defendants, and you will find your verdict in favor of the defendants.”

Plaintiff’s objections to Instruction 6 are: (A) that it was misleading and confusing because it hypothesized the bus was “in the eastbound traffic lane with the right end of said bus 3 to 4 feet south of the center line of St. Louis Avenue,” when all the evidence showed the left end of the bus was nearest to the center line; (B) that there was no evidence to support the hypothesized finding “that when said motor bus was approaching the middle of the block east of Whittier Street the automobile driven by the plaintiff started up from the north curb”; (C) it was confusing and misleading since there was no evidence in the case that the motor bus could not be stopped after the time when plaintiff was in a position of imminent peril and especially after the time when the bus driver should have seen plaintiff in a position of imminent peril; (D) it injected contributory negligence of plaintiff by the hypothesized findings about plaintiff making a “U turn”.

As to (A) this was a clerical or typographical error inadvertently using “right” for “left”. It could not have been misleading or prejudicial because as plaintiff says the evidence was uncontroverted as to the true fact, both parties’ evidence showing the entire bus was south of the center line of the street. This is within our ruling in Wegener v. St. Louis County Transit Co., Mo.Sup., 357 S.W.2d 943, 949, as to insubstantial errors, and is of even less importance than the errors in the instruction in that case which we held not prejudicial.

As to (B) plaintiff relies on the evidence favorable to him, when in deciding whether or not this criticised finding was supported by evidence we must consider the evidence most favorable to defendants. In the first place, if the bus had been as far away when plaintiff started to cross the street, as plaintiff and his witness, who followed it, testified (250 feet or more), there could not have been a collision at all. All the evidence showed the maximum speed of the bus as 20 miles per hour and of plaintiff’s car as 10 miles per hour. Therefore, if plaintiff’s car traveled about 32 feet from the north curb (how close it got to the curb was not shown) to the point of impact at ten miles per hour, this would take little more than two seconds; and traveling 20 miles per hour the bus could not have been much more than 60 feet away when the car started across the street. Furthermore, if plaintiff’s car was going only five miles per hour, it would have required little more than four seconds to have reached the point of impact, while for the bus to have traveled 250 feet at 20 miles per hour would have required more than eight seconds. Therefore, our conclusion is that the evidence most favorable to defendants does support a finding that plaintiff started his car from the north curb when the bus was approaching the middle of the block. Of course, all these fact issues of speeds and distances were for the jury to determine and the language of the instruction “approaching the middle of the block” did not restrict them to any definite estimates of either party. (The length of the block was not shown.) Moreover, the instruction authorized a verdict for defendants only if the jury also made the other subsequently required findings preventing the bus driver from avoiding colliding with plaintiff’s car, in the exercise of the highest degree of care. We therefore hold that this finding of “approaching the middle of the block” did not make Instruction 6 prejudicially erroneous.

As to (C) the burden of proof was on plaintiff to show that defendants’ bus could have been stopped after the time when plaintiff was in and should have been seen in a position of imminent peril. That was an essential element of plaintiff’s humanitarian negligence case and was submitted in Instruction 1 given at plaintiff’s request. This claimed unsupported finding in defendants’ instruction is only a converse of a finding which plaintiff had to prove to make a case. “[A] defendant is entitled to submit the converse of any essential element of the plaintiff’s case.” Alberty v. Sunshine Biscuit Co., Mo.Sup., 321 S.W.2d 418, 422, and cases cited. Of course, a defendant must have evidence to support facts hypothesized in his instruction which are not shown by the plaintiff’s evidence; but this does not change the burden of proof as to the essential elements of the plaintiff’s case.

As to (D) the references to plaintiff making a “U turn” only submit findings of facts. Instruction No. 1, given at plaintiff’s request, submitted that plaintiff “was operating his Pontiac motor vehicle westwardly on St. Louis Avenue and came to a stop at the north curb and then turned on St, Louis Avenue in order to proceed east-wardly or to the south curb of said street.” This certainly describes a “U turn” and plaintiff in his testimony said he made a “U turn”. As we said of a similar contention in Montgomery v. Sobel, Mo.Sup., 334 S.W.2d 112, 116: “It is surmised that these preliminary hypotheses of facts in the instructions of both of the parties were but submissions of the approach of the vehicles of the respective parties to the scene of the casualty. They were not designed and intended to submit negligence in the antecedent conduct of either party, and we doubt that any ordinarily intelligent juror would consider these facts so hypothesized as submitting factual bases for negligence.” The cases cited by plaintiff such as Catanzaro v. McKay, Mo.Sup., 277 S.W.2d 566, 570, and Sheerin v. St. Louis Public Service Co., Mo.Sup., 300 S.W.2d 483, 487, ruled on instructions which commenced by stating the duty of a plaintiff to use care, not properly for consideration in a humanitarian negligence case, and had other defects not present in Instruction 6. We hold that none of plaintiff’s criticisms show that Instruction 6 was prejudicially erroneous.

As to Instruction 7 plaintiff repeats the contention made as to Instruction 6 that there was no evidence to show that defendants could not have stopped the bus at the time he entered a position of imminent peril. As we pointed out, plaintiff fails to recognize where the burden of proof is on this issue. Plaintiff also, citing Pulley v. Scott, 362 Mo. 1217, 247 S.W.2d 767, 770, says Instructions 6 and 7 submitted the same theory and unduly emphasized this defense. In the Pulley case, the trial court granted a new trial because of three instructions, and although we commented that two of these instructions submitted the same theory, we affirmed the trial court’s order mainly because of an improper burden of proof instruction. Instruction 6 submits a factual situation under which there could have been no humanitarian negligence; that is a converse situation from plaintiff’s humanitarian submission so that it was essentially a sole cause instruction without using that term. See Rosenfeld v. Peters, Mo.Sup., 327 S.W.2d 264, 267, and cases cited. Instruction 7 is a true converse instruction to the essential elements of plaintiff’s humanitarian submission which did not require hypoth-esization of facts. For a discussion of converse instructions see Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, 749, 750; Happy v. Blanton, Mo.Sup., 303 S.W.2d 633, 637; Liebow v. Jones Store Co., Mo.Sup., 303 S.W.2d 660, 663; Schaefer v. Accardi, Mo.Sup., 315 S.W.2d 230, 234. While both instructions may not have been necessary, we do not find prejudicial error in giving both. Plaintiff also argues the evidence from the viewpoint most favorable to him, citing Frandeka v. St. Louis Public Service Co., Mo.Sup., 234 S.W.2d 540, 548, as an argument against giving Instruction 7, saying it is not reasonable to believe that the bus driver, if he had kept a lookout, should not have discovered plaintiff in a position of imminent peril prior to the time he did. That was an issue to be determined by the jury and has no bearing on the right of defendants to have such a converse instruction.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: ELMO B. HUNTER, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Donald Keith SAWYER, Appellant.
    No. 49194.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.

      ■ Charles M. Shaw, Clayton, for appellant.
    Thomas F. Eagleton, Atty. Gen., Brick P. Starts, III, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   ELMO B. HUNTER, Special Judge.

On September 26, 1961, defendant, Donald Keith Sawyer, was convicted by a jury in the Circuit Court of St. Louis County of the crime of robbery in the first degree by means of a dangerous and deadly weapon. The jury fixed his punishment at five years. After an unsuccessful motion for new trial and allocution, the court entered judgment sentencing defendant to five years in the Department of Corrections of the State of Missouri. This appeal followed.

Although the defendant was represented by counsel at every stage of the proceedings in the circuit court he has not provided this court with a brief. The case is before us' on the transcript of the record on appeal and a brief filed by the State. Our duty is to review the valid assignments of error set forth in the motion for new trial. (S.Ct. Rule 27.20, V.A.M.R.), and the portions of the record required by S.Ct. Rules 28.02 and 28.08.

A summary of pertinent portions of the evidence is helpful to an understanding of the assignments of error contained in the motion for new trial.

On August 21, 1961, two young men, Jackie Glen Thompson and Jerry Wayne Walton, left the City of St. Louis to go to California to obtain jobs. Their plan to walk and hitchhike to Pittsburg, Kansas, to the home of Thompson’s grandparents. There they expected to obtain sufficient money from the grandparents to buy bus tickets to their California destination.

As they left St. Louis Thompson was carrying a suitcase that he owned which was worth about $6.00. In it were articles of clothing belonging to him and some belonging to Walton, all having an approximate value of $20.00. Additionally, Walton had $65.00 in cash which he divided by giving Thompson approximately $30.00.

The two young men proceeded on Highway 66 to Woody’s Quonset Hut, a truck stop in St. Louis County, arriving about 11:00 p. m. They planned to get a ride to a larger truck stop on Highway 66, called “The. Diamonds.” They checked taxicab charges, and learned it would cost $5.00 to $6.00 to go there by cab. Thompson had struck up a conversation with a stranger, William Howard Boyer, and he asked Boyer if he had a car and if he would be willing to take them to “The Diamonds” for $3.00.. Boyer agreed to do so, and was given $3.00. On their way to the car Boyer told them, he had a buddy in it who was sleeping.

The automobile had no back seat. Walton who was carrying the suitcase put it in the back on the car floor and sat on it. The sleeping man, who turned out to be defendant, and who owned the 1954 Plymouth car, moved to the center of the front seat, Boyer to the driver’s seat and Thompson to the right side of the front seat. After about a ten minutes’ drive Boyer pulled over and asked Sawyer to drive, and Sawyer said something. Boyer got out, went around the car and got in the rear on the right hand side, Walton moved behind the driver’s seat, and defendant moved to the driver’s seat. They proceeded down the road for a couple of minutes with defendant driving when Thompson heard Boyer say, “Give me your money. Give me your wallet.” Thompson turned around and could see the outline of a gun in Boyer’s hand.

Thompson testified that Sawyer told Boyer, “ ‘Put that thing away.’ He said, ‘Don’t be foolish,’ just knock it out, in other words; so then Boyer says, ‘Well,’ he says, ‘I’m drunk enough I’d just as soon blow their heads off.’ ” Walton made no move to give over his money. Boyer then fired a shot in front of Walton’s face, and when. Walton was slow to respond, again fired the-gun. As ordered, both Walton and Thompson then gave over their wallets containing their money and other items such as selective service cards and drivers’ licenses.. Then defendant said, “ ‘Well, we’ll just drop them out somewhere where they can get a ride.’ Boyer said, ‘Okay.’ ” Defendant stopped the car just east of Pacific, Missouri, between Eureka and Pacific, in front of a closed filling station. As Thompson, and Walton started to get out of the car. “Boyer asked Sawyer if they wanted the suitcase and Sawyer said ‘yes,’ so he said ‘Get out and leave the suitcase in.’ ” Sawyer said he “wanted the suitcase” and said to Boyer “Keep the suitcase.”

Walton’s description of this part of the incident was that after Boyer shot the gun Sawyer told Boyer “ ‘Man, put that thing away.’ And Boyer says, ‘No,’ he says, something about, ‘Forget it,’ he says, ‘I’m just drunk enough to shoot these guys,’ he said, ‘We got their money.’ * * * finally they pulled over and let us out and Boyer asked Sawyer, he says, ‘Do you want that suitcase?’ And Sawyer says, ‘Yes, get it.’ So they let us out and they took off, and Jack got the license number.”

The two hoys walked ten or fifteen yards from where they were let out, and there found an outside telephone booth by the filling station, called the Highway Patrol and reported the entire incident. Thompson had written down on a match cover the license number of the automobile in which they had been robbed and he gave that number to the Highway Patrol, and later to the Fenton police.

About 2:00 a. m. defendant’s car was observed by the Highway Patrol and the Fenton police on Highway 66 near Woody’s Quonset Hut. They chased it and overtook it. The defendant and Boyer were still in it as was Thompson’s suitcase which had been opened and its contents gone through. Boyer still had some of the contents of the boys’ wallets, including the drivers’ licenses and selective service cards.

We turn to defendant’s motion for new trial to examine his contentions of error, the first being that the venue of the case according to the evidence was not shown to be in St. Louis County. However, the evidence touching the venue question does show that the robbery occurred in St. Louis County. Trooper Scheu stated that right after their telephone call he met Thompson and Walton east of Pacific, Mis■souri, east of the stop light just west of the railroad tracks. “Q. Now, * * * is that area in St. Louis County ? A. Yes, sir. Q. That is in St. Louis County, is that correct? A. Yes, sir.” This coupled with Thompson’s testimony that he walked only 10 or IS yards to a phone, then called the highway patrol and waited at this phone booth until the highway patrolman arrived is sufficient to support a finding that the robbery occurred in St. Louis County. There was other evidence indicating the eastern portion of Pacific, Missouri, and Highway 66 on east of Pacific, Missouri, was in St. Louis County. Additionally, we note defendant’s attorney during the trial must have thought there was proper venue: “Q. * * * When you say that ‘we was robbed,’ that took place definitely east of Pacific, is that right? A. Yes, sir. Q. So that would be in Saint Louis County * * We find no merit in defendant’s first contention.

Secondly, defendant contends the trial court abused its discretion by permitting the rebuttal testimony of Officer Scheu. Defendant had taken the stand and testified in his own defense. His version of the incident was that while he was driving down the highway he heard a gun go off and turned around and saw Walton and Boyer wrestling over the gun. He indicated it was Walton who must have had a gun and who was, attempting to rob Boyer. He denied he or Boyer had robbed anyone. He stated the draft cards and drivers’ licenses did not come from Thompson’s and Walton’s wallets but had been found in the suitcase the boys had voluntarily left in the car. He testified he told all this to Trooper Scheu shortly after his arrest. Trooper Scheu at the close of defendant’s evidence was recalled to rebut defendant’s statement that he had told the above version of the incident to Officer Scheu. Thereafter, defendant was permitted to return to the witness stand to surrebut Officer Scheu’s rebuttal testimony.

Clearly the trial court did not err to defendant’s prejudice. As pointed out in State v. Lewis, Mo.Sup., 137 S.W.2d 465, 467, “Where a court admits evidence in rebuttal and then gives the defendant full opportunity to explain or rebut such evidence, no rights of the defendant are violated.” Additionally, the scope of rebuttal testimony is largely within the sound discretion of the trial court, and, unless the trial court has abused its discretion to the prejudice of defendant an appellate court will not reverse on that ground, even though the evidence is not strictly or entirely rebuttal evidence. State v. Dees, Mo.Sup., 276 S.W.2d 201; State v. Mason, 322 Mo. 194, 14 S.W.2d 611. Under the circumstances presented, we find no abuse of discretion on the part of the trial court,, nor any prejudice of the rights of defendant.

Did the trial court err as defendant next contends in failing to sustain defendant’s motion for a judgment of acquittal filed at the close of all the evidence? In determining the sufficiency of the evidence to make a submissible case or to sustain a conviction, the reviewing court considers as true the evidence favorable to the State together with the favorable reasonable inferences to be drawn therefrom, and disregards evidence to the contrary. Such evidence shows a robbery occurred during which Boyer took money and property from Thompson and Walton at gun’s point, after having fired it twice. There is ample evidence to the effect that defendant participated actively in this robbery as Boyer’s accomplice. Most revealing on this subject is the evidence that before defendant stopped his car to let Thompson and Walton out and while they were still under the threat of Boyer’s gun Sawyer directed that Thompson’s suitcase together with its contents be left in his car as he wanted it. When later apprehended he still had this suitcase in his car. The evidence is such as to permit the jury to find beyond a reasonable doubt that all the elements of robbery in the first degree as set out in Section 560.120 RSMo 1959, V.A.M.S., were proved. The trial court did not err in overruling defendant’s motion for acquittal filed at the close of all the evidence in the case.

Nor did the trial court err in overruling defendant’s similar motion for acquittal filed at the close of the State’s evidence on the ground that no submissible case has been made. From what we have said it is apparent that a submissible jury case had been made at that point. However, we need not so rule because any error in overruling the motion for judgment of acquittal made at the close of the State’s case was waived by the introduction of evidence by the defendant in his own behalf. State v. Slade, Mo.Sup., 338 S.W.2d 802.

Defendant’s next contention in his motion for new trial is, “That the Court committed prejudicial error in submitting to the jury for their consideration the court’s instruction concerning robbery in that it was an improper instruction under the law and under the facts of the case.” This contention is no more than that the instruction is improper. As such, the contention is meaningless. It fails to state or even indicate wherein or why the instruction is improper. Our rule 27.20 requires a motion for new trial “must set forth in detail and with particularity, * * * the specific grounds or causes therefor” and if it does not, it presents nothing for review. This type of general assignment of error wholly failing to set forth in detail and with particularity the specific grounds or causes relied upon for the granting a new trial has frequently and uniformly been condemned and held to preserve and present nothing on appeal, and we again so rule. See, State v. Payne, Mo.Sup., 342 S.W.2d 950; State v. Williams, Mo.Sup., 343 S.W.2d 58; State v. Whitaker, Mo.Sup., 312 S.W.2d 34.

For his sixth assignment of error defendant points to the trial court’s refusal to give defendant’s instruction concerning him being a mere spectator. In Instruction No. 2 given by the trial court the subject of mere spectator was covered. The defendant has not complained of Instruction No. 2 and it is certainly at least as favorable to defendant as he is entitled to have. See, State v. Gilliam, Mo.Sup., 351 S.W.2d 723. Since the trial court adequately instructed on the subject it cannot be convicted of error for refusing to do so a second time. State v. Harris, Mo.Sup., 351 S.W.2d 713(5); State v. Chaney, En Banc, Mo.Sup., 349 S.W.2d 238, 244; State v. Crow, 346 Mo. 306, 141 S.W.2d 66, 72.

In Instruction No. 3 the court instructed that voluntary intoxication is no excuse for the commission of crime. Defendant assigns error, saying intoxication was not raised by him as an excuse or reason for the acts that allegedly took place. The record is replete with testimony concerning heavy drinking by and the intoxication of both defendant and Boyer. Defendant testified he was sick from drinking and a little intoxicated at the time of the robbery.

It is the accepted rule that voluntary intoxication is not an excuse for the commission of crime. State v. Smith, Mo.Sup., 342 S.W.2d 940. Our Rule 26.02 states “the court, whether or not it shall have been requested so to do by either party, must instruct- the jury in writing upon all questions of law necessary for their guidance in returning their verdict * Assuming that the instruction is outside the scope of the mandatory instructions contemplated by Rule 26.02 (See, State v. Chaney, En Banc, Mo.Sup., 349 S.W.2d 238, 241) this does not mean that the trial court may not or should not give it. Even though defendant takes the position in his motion for new trial that he was not relying on drunkenness as an excuse for his alleged acts, his testimony and that of others placed that subject before the jury. It was in the interest of justice to give the jury for their guidance in returning their verdict the applicable law on- this subject before them under the evidence, and the trial court did not err in so doing.

The final three contentions of defendant are that the trial court erred in not instructing on the crimes of stealing over and under fifty dollars in lieu of robbery in the first degree. It is defendant’s reasoning there is evidence that at most all he did was keep a suitcase. Defendant overlooks the fact that in a prosecution for robbery in the first degree, the value of the items taken is not important as long as the constitutive elements of the crime are present. State v. Van Horn, Mo.Sup., 288 S.W.2d 919. As we stated in State v. Churchill, 299 S.W.2d 475, “The essence of the offense of robbery in the first degree * * * is ‘feloniously taking the property of another from his person, or in his presence, and against his will’ V.A.M.S. § 560.120, and the offense may be committed in two ways; one, by violence, or, two, by putting the victim in fear of some immediate injury to his person.”

The State’s evidence shows defendant participated in and committed the robbery in the first degree charged in which items and money were taken in an immaterial but substantial total amount. Defendant’s evidence is such as to show he committed no crime — not even that of stealing in any degree. Thus, the evidence made a case of robbery in the first degree or nothing. There is no proper place for an instruction on stealing in any amount, for there is no evidence to support such a submission. State v. Parker, Mo.Sup., 324 S.W.2d 717; State v. Herron, Mo.Sup., 349 S.W.2d 936. The trial court did not err in not instructing on the crimes of stealing over fifty dollars or stealing under fifty dollars.

We have examined the information, verdict, judgment and sentence, as required by our Rules 28.02 and 28.08, and find them sufficient in form and substance.

The judgment is affirmed.

All concur.


author: HOLMAN, Commissioner.

text:
    UNION ELECTRIC COMPANY, Plaintiff-Appellant, v. Raymond J. STAHLSCHMIDT, Dorothy Stahlschmidt et al., Defendants-Respondents.
    No. 49544.
    Supreme Court of Missouri. Division No. 1.
    March 11, 1963.
    Robert V. Niedner, Niedner, Niedner & Moerschel, St. Charles, for appellant.
    J. O’Connell Hough, Hough, Hormberg, Butler & Abels, Clayton, for respondents.
   HOLMAN, Commissioner.

In this condemnation case the commissioners appointed by the circuit court awarded defendants the sum of $47,5Q0 for the taking of their 68-acre farm and both plaintiff and defendants filed exceptions to that award. In the subsequent jury trial a verdict was .returned for defendants in the sum of $42,000. Thereafter, the trial court sustained defendants’ motion for a new trial upon the sole ground that the court had erred in giving Instruction No. 1, at plaintiff’s .request, in that it misdirected the jury “with respect to the date on which the fair market value of defendants’ property should be determined.” Plaintiff - has duly appealed from said order granting defendants a new trial.

The farm in question is located in St. Charles County and is from ¾ to 1J4 miles from both the Missouri and Mississippi Rivers. It constitutes a part of a 990-acre tract which plaintiff has acquired (both-by condemnation and purchase) as a site for a power plant. Plaintiff’s witnesses fixed the market value of defendants’ farm at amounts ranging from $25,500 to $39,163. On the other hand, defendants’ witnesses placed the value at amounts ranging from a minimum of $85,000 to a maximum of $127,000. .Since plaintiff desires that the $42,000 judgment be reinstated, and since defendants’ evidence would support a judgment which would exceed $42,000 by much more than $15,000, we have appellate jurisdiction by reason of the amount in dispute. See Art. V, § 3, Constitution of Missouri, 1945, V.A.-M.S., and § 477.040 RSMo 1959, V.A.M.S.

The petition in this case was filed on September 13, 1960. The appointment of commissioners was delayed by reason of the fact that defendants contested plaintiff’s right to condemn. After their motion for judgment was overruled defendants sought a writ of prohibition in the St. Louis Court- of Appeals which was subsequently denied. However, the commissioners were appointed on December 21, 1960, and they filed their report on the same day. The award of the commissioners was paid into court by plaintiff on December 27, 1960. As stated, both parties filed exceptions and the cause was tried in February 1962.

The sole question for our determination is whether the court committed prejudicial error in instructing the jury that the value of defendants’ farm should be determined as of September 13, 1960. Defendants contend that the jury should have been instructed to make the evaluation as of the date of taking, i. e., December 27, 1960.

Prior to the adoption of our new civil rules, which became effective on April 1, 1960, it was well settled that in a case of this kind the date of taking was the date that the amount of the award was paid into court, and that the value of the land should be determined as of that date. See City of St. Louis v. International Harvester Co., Mo.Sup., 350 S.W.2d 782, and cases cited therein. However, we think it is clear that under Civil Rule 86.06, V.A.M.R., as originally adopted, the valuation, under the situation here presented, would have been made as of September 13, 1960, the date the petition was filed. Prior to the trial of this case, however, effective November 1, 1961, Civil Rule 86.06 was amended to provide that where the award is paid within one year thereafter, the evaluation date shall be “the date the assessment is made” which, in the case before us, would have been December 21, 1960. Notwithstanding that amendment plaintiff contends that the court was warranted in using the date specified in the original rule because, under Civil Rule 41.08, V.A.M.R., in the event of an amendment, the court, in a case pending on the effective date thereof, could use the original rule if it was of the opinion that it “would not be feasible or would work'injustice” to use the new provision. That contention may not be sustained because we-find nothing in the transcript to indicate-that the court made the quoted finding iru this case. As indicated, we are of the opinion that, in the absence of a finding in accordance with Civil Rule 41.08, the proper-date for the assessment of the value of defendants’ farm was December 21, 1960.

We do not think, however, that defendants were prejudiced by, or are in a. position to complain of, the use of September 13, 1960 (the date the petition was filed) in Instruction No. 1.

In that connection it should be noted that the period of time elapsing between September 13 and December 21 was relatively-short, and in the absence of some unusual' development it is not likely that defendants’' property increased appreciably in value during that interval. No contention was made-during the trial that the property had increased in value during that time and, in. fact, defendants’ counsel tacitly conceded, that it had not. We base this latter conclusion on the fact that at one time when the court and counsel were discussing the date of taking, the following transpired:“Mr. Niedner: I think the record will show-the petition was filed September 13. Mr. Butler: I believe the order condemning the real estate was entered December 21, 1960, although I don’t think it’s real important for our purpose here. This is the report you gave Judge Romjue. Mr. Niedner: Yes, and that report is correct. The date at which you evaluate property is the date of the filing of the petition unless * * * The Court: Is there any contention that the property changed radically from September to December? Mr. Niedner: I don’t know. I don’t think there is. Mr. Butler: I’ll rephrase the question. Based on your experience, do you have any opinion as to the best market value, best adaptability, of this property as of September 1960?” From the above it will be noted that (1) defendants’ attorney stated that he ■did not think the date was “real important for our purpose here”, (2) when the court asked if it was contended that the property had “changed radically [in value] from September to December” counsel for defendants did not respond, thus indicating by his silence that he was not making such a contention, and (3) without any ruling by the court defendants’ counsel then rephrased his question so as to elicit from the witness the value in September.

While on three occasions during the trial counsel for defendants expressed the view that December 21 was the valuation date, it nevertheless abundantly appears that both sides actually tried the case throughout upon the theory that the time of valuation was September. There were six witnesses (three on each side) who expressed opinions as to the value of this farm. No specific date was used in examining one of defendants’ witnesses. However, all of the other five experts expressed their opinions ns to the value in September 1960. Defendants’ counsel used that date repeatedly in examining his witnesses, in cross-examining plaintiff’s witnesses, and in his argument.

On one occasion the court indicated that •it would not permit defendants to show by one of their witnesses the sale price of an allegedly comparable tract of ground because the sale was made after the taking of defendants’ property. At that point the following occurred: “Mr. Butler: Your Honor, I think at this time we had better have a ruling on when the time of taking was in the Stahlschmidt place. It has become pertinent at this time, whether it was September or December, because these sales were made in the interim. The Court: It’s my understanding that the taking under the law as it existed at the time this suit was filed is as of the date of the filing of the petition, which is September 13. Mr. Nied-ner: That’s my understanding of the law. Mr. Butler: We had quite some time transpire before the filing of the petition. We even had writs of prohibition. * * * The Court: I believe the time of the taking in this case is September 13, 1960.”

After the court made the last-quoted ruling as to the date of taking, the attorney for defendants did not protest further or endeavor to point out why the ruling was wrong. He acquiesced therein and continued to try the case upon the theory that September 13 was the valuation date. Defendants say in their brief that they were prejudiced by said ruling because- it precluded them from offering evidence in regard to comparable sales between September 13 and December 21. We do not think the exclusion of that evidence may be considered in connection with the alleged error in using an incorrect date in Instruction No. 1. If defendants thought the court was in error in excluding evidence of a comparable sale after September 13 they should have made an offer of proof and thus have preserved that alleged error for appellate review. This they did not do. Under the circumstances, that matter is not before us for determination.

Another instance which occurred prior to the time the court .ruled on the date of taking, and which tends to show that defendants’ counsel acquiesced in the view of plaintiff’s attorney on the date of the taking, appears in the following: “Mr. Niedner: Do you know of your own knowledge how many buildings there were on that tract in September 1960? Mr. Butler: Object. We’.re talking about September 1960. I think we should tell them what that date means. Mr. Niedner: September I960 was the time when the suit was filed. Mr. Butler: It’s the time of taking. The Court: Overruled. Mr. Niedner: The evaluation is as of the time the suit was filed, as I understand the law. Do you know how many buildings there were at that time'? A. It’s my understanding — ”

In urging that we affirm the trial court’s order the defendants point to the rule that where the trial court sustains a motion for a new trial this court will be liberal in upholding the trial court’s action. Reichmuth v. Adler, 348 Mo. 812, 155, S.W.2d 181. While we fully agree with that rule we are nevertheless of the opinion that where, as here, it is manifest that the matter complained of did not constitute prejudicial error, the order granting a new trial should be reversed.

In summary, as heretofore indicated, we rule that defendants were not prejudiced by reason of the date specified in Instruction No. 1 because (1) there was no contention that there was any increase in the valuation of the farm between September 13 and December 21, (2) defendants’ counsel acquiesced in the view of counsel for plaintiff and the court that September 13 was the proper valuation date, and (3) the case was tried by both sides (with the exceptions heretofore noted) upon the theory that September 13 was the appropriate date. Hall v. Martindale, Mo.App., 166 S.W.2d 594 [23]; Marr v. Marr, 342 Mo. 656, 117 S.W.2d 230 [1]; City of St. Louis v. Busch, 252 Mo. 209, 158 S.W. 309 [5] ; State ex rel. State Highway Commission v. Baumhoff, 230 Mo.App. 1030, 93 S.W.2d 104 [14].

The trial court’s order granting a new trial is reversed and the cause is remanded with directions to reinstate the verdict and judgment.

COIL, C., not participating.

HOUSER, G, concurs.

PER CURIAM.

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

All concur.


author: STOCKARD, Commissioner.

text:
    William R. ROYSTER, Appellant, v. Glen S. BAKER, Harold R. Dinges, Wallace G. McDowell, John T. Pierson, J. T. Edwards, Tom Van Hoozer, The Baltimore Bank, a corporation, and J. C. Dennis, Respondents.
    No. 49594.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1963.

      Richard P. Sprinkle, Paul C. Sprinkle, Sprinkle, Carter, Sprinkle & Larson, Kansas City, for appellant.
    Ilus W. Davis, James J. McGannon, Dietrich, Tyler, Davis, Burrell & Dicus, Kansas City, for respondents.
   STOCKARD, Commissioner.

Plaintiff has appealed from a judgment dismissing his first amended petition wherein he sought damages in the amount of $200,000 for civil conspiracy.

We shall set out in considerable detail the allegations of the petition, and will quote those portions which have a particular bearing on the issue of whether the petition states a cause of action. “Several years ago” plaintiff, his brother (not named), and J. C. Dennis (one of the defendants) secured a location in northwest Missouri for a hunting club. Plaintiff personally “gave large amounts of his time and his own money and secured materials and services for the erection of a club house and other structures.” The hunting club was incorporated under “the non-profit corporation statute of Missouri,” and plaintiff, his brother and J. C. Dennis were the “permanent acting managing trustees of said hunting club which was then known as the Bigelow Hunting Club.” At their solicitation defendants Glen S. Baker, Harold R. Dinges, Wallace G. McDowell, John T. Pierson, J. T. Edwards, Tom Van Hoozer, the Baltimore Bank, and J. C. Dennis (the latter was already a member of the club), were “permitted to join as members of the hunting club,” all of whom stated that “they were perfectly satisfied with the hunting club as it was operated and joined as members unsolicited.” Shortly after the defendants were “permitted to join * * * each of them individually and jointly and through their personal attorney (not named) began to recommend that the hunting club be reincorporated under the business statutes of Missouri.” All the defendants “represented * * * that they were perfectly willing to place in trust one-half of their stock interest in said club under the control of the plaintiff, his brother and J. C. Dennis so that the management of the new corporation would remain as it had been in the past,” and defendants “represented” to plaintiff “that this arrangement would be a better business arrangement.” As soon as “this was done” the defendants “first denied any knowledge of an agreement to place their stock in the hands of trustees and denied any such arrangement, and stated that they intended to take over said hunting club and oust the plaintiff as managing trustee,” and “to that end” J. C. Dennis “entered into the conspiracy with the others” and “the attorney representing the defendants joined with them.” “Although the defendants had full knowledge of the interest the plaintiff had (not further defined) in said gun club, which greatly exceeded their interest (also not defined), yet they informed the plaintiff that they intended to take over the club without taking into consideration the superior right and interest of plaintiff,” and “this conduct was a conspiracy on the part of all of the defendants to unlawfully deprive the plaintiff of his interest in said club and take over his interest to the benefit of the defendants.” “As stockholders in said club,” the defendants “conspired to deny any agreement by which the plaintiff and others were to control the club as it had been in the past;” the “representations of the defendants with respect to the forming of a new corporation” were “unlawful” and the conspiracies of the defendants were to remove and eliminate the plaintiff from his management and ownership and interest in said club and to acquire “that valuable interest” for the defendants; and “the representations to him for the purpose of forming the business corporation were false, unlawful and the result of conspiracy between the defendants and each of them.” Plaintiff also alleges that “in operating the club he incurred expenses (the amount or circumstances not being alleged) which the defendants refuse to pay and which he was caused to pay personally;” that the defendants refused “to improve the club, take care of the taxes, or to in any way finance the loan upon the club;” and that “one of the defendants (not identified) conspired with the others, agreed to procure a loan upon the club and then declare the same a default and refused to permit the loan to be paid off,” and by that means “sought” to gain control of the club and force the plaintiff out of the club and to eliminate his financial interest in the same.

Defendants filed a motion to dismiss the petition because (1) it failed to state a claim upon which relief can be granted, (2) plaintiff’s claim, if any, should have been asserted as a compulsory counterclaim in a case pending in the same court at the time the petition was filed entitled Glen S. Baker et al. v. William R. Royster et al., No. 632,141, and (3) the “orders” of the court in Case No. 632,141 constituted a determination of all the issues raised in plaintiff’s petition and were res judicata as to the pending case. The pleadings and judgment of the court in Case No. 632,141 were attached as exhibits to the motion to dismiss. The trial court dismissed the petition “for the reasons stated in the motion.” On this appeal plaintiff assigned as error the action of the trial court in dismissing the petition “on the theory it was compulsory that the [plaintiff] file a counterclaim” in Case No. 632,141. No error was assigned as to the other two reasons relied on by the trial court for dismissing the petition. Defendants then filed a motion in this court to dismiss the appeal because “it does not address itself to all the grounds * ⅜ * which * * * were the basis for the trial court’s order of dismissal from which appellant here appeals.” This court ordered that the motion to dismiss be taken with the case. Thereafter, defendants filed their brief as respondents and. briefed all three of the reasons advanced by the trial court in sustaining the motion to dismiss the petition. Plaintiff then filed a “reply brief” in which he purports to reply to defendants’ answer to his principal brief, and in which he also purports to assert that the other two reasons relied on by the trial court in dismissing his petition were erroneous. This presents the interesting situation where the judgment of the trial court is to be affirmed if it was correct as to any one of the three reasons assigned for dismissing the petition, but in his principal brief as appellant plaintiff challenged as erroneous only one of those reasons. The respondent in an appeal does not have the burden to establish the correctness of the judgment from which the appeal is taken, Lakin v. Postal Life & Casualty Insurance Company, Mo., 316 S.W.2d 542, 549, 70 A.L.R.2d 564, and assignments of error first set forth by an appellant in a reply brief do not present an issue for appellate review. Berghorn v. Reorganized School Dist. No. 8, Franklin County, 364 Mo. 121, 260 S.W.2d 573. However, the entire matter is now before us, although presented in an improper manner, and if the trial court was correct in dismissing the petition for any one of the three reasons advanced by it for its action it is not necessary to consider the other two. Our review establishes that the petition properly was dismissed because it failed to state a claim upon which relief can be granted. We shall now set forth the basis for that conclusion.

A civil conspiracy is an agreement or understanding between two or more persons to do an unlawful act, or to use unlawful means to do an act which otherwise would be lawful. Rosen v. Alside, Inc., Mo., 248 S.W.2d 638, 643; Byers Bros. Real Estate & Insurance Agency, Inc. v. Campbell, Mo.App., 353 S.W.2d 102, 105. “Strictly speaking, there has been no distinct form of writ or action of conspiracy; but the action sounds in tort, and is of the nature of an action on the case upon the wrong done under the conspiracy alleged. 11 Am.Jur., Conspiracy, § 53, p. 584; 15 C.J.S. Conspiracy, § 21, pp. 1031-1033. The gist of the action is not the conspiracy, but the wrong done by acts in furtherance of the conspiracy or concerted design resulting in damage to plaintiff. Shaltupsky v. Brown Shoe Co., supra [350 Mo. 831, 168 S.W.2d 1083]; Medich v. Stippec, 335 Mo. 796, 73 S.W.2d 998; Seegers v. Marx & Haas Clothing Co., supra [334 Mo. 632, 66 S.W.2d 526]; Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570.” Rosen v. Alside, Inc., supra. In the Seegers case, supra, it was stated that the “only purpose in charging the conspiracy is to make the defendants responsible for the acts done by each other in pursuance of the common design,” and that “in order to state a cause of action for an unlawful conspiracy, the petition must not only allege that defendants conspired and agreed to do an unlawful act, but it must also allege that in pursuance of the conspiracy defendants did some unlawful act or acts which resulted in damages to the plaintiff.” This basic and essential feature of a cause of action for civil conspiracy was clearly set forth in Darrow v. Briggs, 261 Mo. 244, 169 S.W. 118, in quoting from Hunt v. Simonds, 19 Mo. 583, as follows: “‘[T]he conclusion would seem to be unavoidable that the action can only be sustained against several, where the acts complained of would sustain an action against one of the defendants; in other words, that the number of the defendants sued, and the allegation that they conspired together, do not authorize the plaintiff to maintain his action, when he could not maintain it against one defendant, if sued alone.’ ” See also McCarty v. Hemker, Mo.App., 4 S.W.2d 1088, and the excellent discussion there of the essential requisites to plead a cause of action for civil conspiracy. It is thus evident that an alleged conspiracy by or agreement between the defendants is not of itself actionable. Some wrongful act to the plaintiff’s damage must have been done by one or more of the defendants, and the fact of a conspiracy merely bears on the liability of the various defendants as joint tort-feasors.

In determining the sufficiency of a petition to state a claim upon which relief can be granted, the averments are to be given a liberal construction and the petition accorded those reasonable inferences fairly indulged from the facts stated. Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W. 2d 52, 54. However, “The conclusions of the pleader are not to be considered in determining whether plaintiffs have stated a cause of action, * * * because the averment of a legal conclusion is not a statement of an issuable fact and is to be treated as no statement at all.” Goodson v. City of Ferguson, Mo., 339 S.W.2d 841. The “grounds or gravamen” of an action for civil conspiracy “must be set out with the same certainty and particularity as in an ordinary civil action, against a single defendant only, growing out of tortious conduct of the same general character.” McCarty v. Hemker, Mo.App., 4 S.W.2d 1088, 1089, 1092. When we so consider the petition in this case, we find that plaintiff has alleged that at defendant’s request they were permitted to join the hunting club; that they stated that they were satisfied with the management of the club but they represented that it would be better to change the corporate structure and that they were willing to place one-half of their stock in trust under the control of plaintiff; that after the reorganization they denied any knowledge of an agreement to place their stock in trust and they announced that they intended to take over the management of the corporation. In addition to what plaintiff has alleged, it is also important to note what he has not alleged. There is no allegation that an agreement was entered into that the stock of defendants would be placed in trust subject to plaintiff’s control, or that plaintiff relied to his disadvantage on the representations of defendants. There is no allegation that defendants, or any of them, did any illegal or wrongful act in their efforts to obtain control of the club or to change its management. Neither is there any allegation that defendants’ ownership or interest in the corporation was such that they were not entitled to control or change its policies or make a change in the management personnel of the corporation.

It is not wrongful for the stockholders of a corporation, who control or own a majority of the stock, to agree among themselves to vote their stock a certain way and to change the management of the corporation or its methods of doing business as long as their conduct does not violate the laws of the state, the charter or bylaws of the corporation, or infringe upon contractual or other rights of others. No facts are alleged from which it can be determined that the defendants acted wrongfully in any of these respects. When we give every allegation properly made in the petition its most liberal construction favorable to plaintiff, the petition does no more than allege that the defendants agreed, or if the term is preferred, conspiréd, to accomplish lawful acts in a lawful manner. It may be that in doing this the management and policies of the corporation have been or will be changed, but that does not result in a minority stockholder who disagrees with the action of the majority having a cause of action against the members of the majority for civil conspiracy.

We have encountered some difficulty in determining the precise theory of plaintiff’s petition. If we understand the argument correctly we perhaps find a clue in his brief. He there asserts that in the petition he “alleges damages because he is by conspiracy at sometime in the future to be deprived •of a financial business interest.” He then states that “The action filed by the respondents and others (referring to Case No. 632,-141) would amount to depriving him of that interest,” but that “at the time the suit was filed by the respondents and others against the appellant and others the wrong had not yet been done.” This argument is directed to the contention that the subject of the pending suit was not required to have asserted as a counterclaim in Case No. 632,141 because it is not necessary to file a counterclaim “for something which has not yet occurred.” It thus seems to be plaintiff’s contention that the defendants “conspired” to ■deprive him of his interest in the corporation, and to accomplish the purpose of that conspiracy they filed a suit against him and ■others, referring to Case No. 632,141. His ■position is that if they are successful in that •suit he will be damaged, and for that reason he is entitled at this time to sue the defend.ants in a separate action for that conspiracy. The answer to this is that if the defendants .are wrong as to their right to relief in Case No. 632,141, the court will so hold and plaintiff will not be damaged. If they are correct as to their right to relief and prevail in that action, while plaintiff may lose something to defendants, the defendants would ■not acquire anything wrongfully. It goes without comment or discussion that plaintiffs who join together to assert in a court .a joint cause of action, and are successful, .are not thereby subject to suit by the defendant for civil conspiracy.

The trial court properly dismissed the petition for failing to state a cause of action for civil conspiracy. We need not rule the sufficiency or correctness of the other two ■reasons relied on by the trial court dismissing the petition.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Kenneth Hardin NORRIS, Appellant.
    No. 49382.
    Supreme Court of Missouri, Division No. 1.
    Feb. 11, 1963.
    Motion for Rehearing or to Transfer to Court En Bane Denied March 11, 1963.

      Richard P. Nangle, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Scott O. Wright, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   HYDE, Judge.

Defendant, charged under the habitual criminal statute (Sec. 556.280), was convicted of assault with intent to rob with malice aforethought (Sec. 559.180) and sentenced to 25 years’ imprisonment. (Statutory references are to RSMo and V.A.M.S.) Defendant has appealed and makes the following two claims of error: (1) the court erred in failing to give instructions on lesser grades of the offense; and (2) the court erred in giving Instruction No. 1 authorizing the verdict found.

Considering first the latter, the State’s evidence was that defendant and his companion Elmer Hammond hailed a taxi, driven by Lawrence Aubuchon, at Mississippi and Park in St. Louis. When Aubuchon picked them up, he was told to take them to Broadway and Market. At the south end of the Fourteenth Street Viaduct (over the railroad tracks) defendant grabbed Au-buchon about the back of his neck with his left hand and put a knife against his throat held in his right hand, saying “keep driving you son of a bitch and don’t give us no shit.” Aubuchon said: “I grabbed his wrist, tried to pull it away a little bit. I said I won’t cause you no trouble.” Defendant told him to “shut up”, emphasized by more vile language, and pulled the knife back toward his throat. At that moment, Aubuchon saw a police car (with which there were two officers) on the viaduct and started to drive over toward it. Defendant said “don’t you dare” but Aubuchon drove over against the police car, stopped his cab,, jumped out and told one of the officers that “a fellow in the cab had a knife on me.”' One of the officers went to each side of the cab and arrested the men in the back seat-A steak knife was found on the floor of the-cab in front of the back seat. (The knife had a 4½ inch, very sharp, stainless steel blade.) On cross-examination the following occurred: “Q Did either of the men in that cab ask you for your money? [Objection made and overruled.] A They didn’t ask for any money at that time. Q At any time did they ask you? A Hadn’t got that far. * * * Q Mr. Aubuchon, just to clarify this, you stated there was no conversation before this alleged threat. So, in other words, there was no argument of any kind between you and the passengers of your cab? A No, sir. Not until he grabbed me.”

Defendant’s only witness was Hammond who said he and defendant had been drinking together and that he fell asleep in the cab right after he told the driver where they wanted to go and was not awakened until they came to the police car. He said he never saw defendant have the knife at any time while he was with him. Hammond said he and defendant were going downtown to do more drinking together and that they both had money, about $15.00 together.

Defendant claims the evidence does not show an intent to rob, arguing that no demand for money was made; that the incident took place on the viaduct which was well lighted after having passed over poorly lighted streets; and that the time the knife was held at the driver’s throat was long; enough for a demand for money to have been made, if that had been his purpose. A somewhat similar situation was presented in State v. Simon, 317 Mo. 336, 295 S.W. 1076, in which a cashier of a shoe company (G. P. Clark) was on his way from the bank with the company’s payroll, when the defendant therein jumped out of an automobile parked at the curb, with the engine running and an alleged confederate behind the steering wheel, and shoving a pistol against the cashier’s body, said, "Get into this car; get into this car.” As the cashier struggled with the defendant, the man in the car said: “Hit him”; but the cashier broke away from appellant and escaped. The defendant then jumped into the waiting car and was driven away. It was noted: “The record is entirely barren of proof of any words spoken by appellant which may be said to characterize his act as done with intent to rob rather than to commit some other felony.” Nevertheless, holding the evidence sufficient to sustain a conviction of assault with intent to rob with malice, we said: “The weight of authority and indeed the dictates of common sense require us to hold in the case at bar that the intent in the mind of appellant at the time he made the assault upon Clark was a matter peculiarly within the province of the jury to determine from all the facts and circumstances in evidence, including the words spoken by appellant. The jury had the right to find from such evidence that appellant intended to rob Clark when he jumped out of his automobile and placed his pistol against Clark’s body and commanded him to ‘get into this car.’ * * * In determining the intent of appellant, the jurors had the right to avail themselves of their own knowledge of the usual and ordinary happenings of life and to apply such knowledge to the particular facts and circumstances in evidence in the case at bar. It was for the jurors to say whether such facts and circumstances, measured by their own knowledge and experience of the affairs of life, pointed to the intent of appellant in assaulting Clark as that of robbing him.”

In the Simon case (295 S.W. 1. c. 1076-1079) this court cited and quoted from Illinois, Iowa, Oklahoma and Texas cases holding that intent to rob could be inferred from all the surrounding circumstances although no words stating intent to rob were used; and stated that a suggestion to the contrary, in State v. Tate, 145 Mo. 667, 47 S.W. 792, “should not be followed here, because such rule is out of harmony with what we regard as the great weight of authority.” Likewise, it is stated in 77 C.J.S. Robbery § 72, p. 528: “The essential intent may be established by any circumstances from which the jury may reasonably infer it, and such an inference may be proper despite accused’s failure to say a word about wanting valuables; nor is it necessary to prove that the victim was searched or that there was any effort whatever to take from him any money or other thing of value. The victim’s successful prevention of the robbery has no tendency to disprove the intent of accused to rob.” See also 46 Am. Jur. 171, Robbery, Sec. 69; Annotation, Ann.Cas.l918A 416. Cases cited in these authorities emphasize as relevant circumstances such facts as the parties being strangers to each other, with no personal malice or grudge between them, and the occurrence taking place in the nighttime, as well as the kind of weapon used and the manner of its use

Obviously in this case, defendant wanted the driver to do something different from the previous instructions given him. It would certainly be reasonable for the jury to believe that defendant intended to force the driver to go somewhere else than Broadway and Market so he could accomplish whatever act he intended without detection. It is common knowledge that taxi drivers carry money collected from passengers, and to make change, and that taxi drivers have been robbed by persons purporting to be passengers. Defendant’s conduct, directions to the driver and his effort to stop him from reaching the police, considered with the fact that the parties were strangers to each other and the way the knife was used, all indicate such a purpose. Our conclusion is that the jury could reasonably find from the facts and circumstances in evidence that the intent of defendant in assaulting Aubuchon with the knife was to rob him and that there was no error in giving the instruction authorizing such a verdict.

As stated defendant was charged and convicted of violation of Sec. 559.180. Of course, as defendant says, it is the duty of the court to instruct on essential questions of law arising in the case [Sec. 546.-070(4), now Rule 26.02, V.A.M.R.] which means “instructions presenting the facts constitutive of the offense charged or any grade thereof shown by the testimony.” See discussion of cases in State v. Chaney, Mo.Sup., 349 S.W.2d 238, 241. Defendant contends the jury should have been instructed on assault without malice aforethought defined by Sec. 559.190 and common assault under Sec. 559.220. None of the cases cited by defendant are robbery cases but consider the duty of the court to instruct on lesser degrees of other offenses. This same contention was made in State v. Washington, Mo.Sup., 357 S.W.2d 92, 95, a robbery case in which the defendant was charged with aiding another who actually used the weapon involved. (Brass knucks.) We said: “Before instructions on the included 'Or lesser offenses are compelled, however, there must be evidentiary support for such offenses.” Noting the defendant’s claim that he did not participate in the robbery and had no intention of robbing the victim, we ruled: “According to him, he was not guilty of any offense. Had he admitted participation and a reason for the assault other than robbery or denied a felonious intent even though engaging in the combat, an instruction on the lesser or included offenses may have been required. 58 A.L. R.2d 1. c. 810. Thus, upon this record, the appellant was either guilty of the supported charge of assault with malice with intent to rob or he was not guilty of any offense.” See also State v. Benjamin, Mo. Sup., 309 S.W.2d 602, 606; State v. Burns, Mo.Sup., 328 S.W.2d 711; State v. Brown, Mo.Sup., 245 S.W.2d 866, 868.

In this case the State’s evidence showed defendant committed the offense of assault with a deadly weapon with intent to-rob under such circumstances as to indicate malice aforethought. (For the definition of these terms see State v. Ayers, Mo.Sup., 305 S.W.2d 484, 486, and cases cited.) Defendant was in the cab for several blocks-with no words spoken, after directions to the driver as to destination, and after ample time for deliberation made an assault with the knife on reaching the viaduct. “The law presumes malice as a concomitant of an: assault with a deadly weapon in the absence- * * * of countervailing testimony or circumstances.” State v. Ayers, supra, 305 S.W.2d 1. c. 486. Certainly defendant’s, claim was that he was not guilty of any assault or any offense, and, while he did' not testify, he used his companion’s evidence that he saw and heard nothing but slept undisturbed during the entire trip, as the basis of an inference that there was no-assault. Defendant certainly did not claim or attempt to show that he engaged in an assault for any other purpose or without a deadly weapon. Our conclusion is that he-was guilty of the offense charged or not guilty of any offense. For a case in which an instruction was given on assault with intent to rob without malice, see State v. Swiney, Mo.Sup., 296 S.W.2d 112, where-defendant’s evidence showed a fight first started by the person who claimed the defendant had attempted to rob him. Therefore, we hold the court did not err in failing to instruct on lesser degrees of assault.,

We have examined the record as required by our Rules 28.02 and 28.08 and find it sufficient as to those matters therein specified.

The judgment is affirmed.

All of the Judges of the Division concur- and STONE, Special Judge, concurs.


author: DALTON, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Lawrence SMITH, Appellant.
    No. 49522.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.
    Maurice B. Soltz, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Pendle-ton Goodall, Jr., Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   DALTON, Presiding Judge.

Defendant was charged under the Habitual Criminal Act with the offense of burglary, second degree, and stealing. On trial he was found guilty of the offenses charged and the court assessed defendant’s punishment at five years’ imprisonment for the burglary and five years for stealing, the sentences to run consecutively. See Sections 560.045, 560.110, 560.156 and 556.280 RSMo 1959, V.A.M.S. Defendant has appealed and filed a brief in this court wherein the only error assigned is that the court erred in giving Instruction No. 8, an instruction setting out forms of verdict. Other assignments of error set out in the motion for new trial are therefore waived. Supreme Court Rule 28.02.

The State’s evidence tended to show that on January 13, 1962, Jesse Randle occupied Apartment No. 402 on the fourth floor of an apartment building located at 1317 Troost Avenue in Kansas City, Jackson County, Missouri; that about 7:30 a. m. on that date, when he left for his work, he locked each of the two front doors of his apartment. The locks consisted of padlocks and hasps, the hasps being of the type that, when closed and padlocked, it was impossible to remove the screws holding the hasps, and the hasps could be removed only by prying them off. Upon returning to his apartment about 6 p. m. on the day in question, Randle observed that his apartment doors were both open and that, although the padlocks were still fixed to the hasps, the hasps had been pried off. Access could only have been obtained to the apartment by the forcible removal of the hasps and padlocks from both an outer and an inner door. On inspection of his apartment Ran-dle discovered that his brown plastic Admiral table radio and his dark brown “Hi-Fi” set, described as a Motorola, were missing. They were in his apartment when he left home that morning. He had not given anyone permission to enter his apartment that day or to remove any of his property. The value of the radio was $5 and the value •of the “Hi-Fi” set was about $20. They were never recovered.

Randle was well acquainted with defendant Lawrence Smith and had known him for some five or six years, since at one time both had lived in the same rooming house. Defendant had visited Randle in his apartment the night before the alleged burglary and stealing. At that time he had borrowed Mr. Randle’s razor and had shaved with it. Mr. Randle had also furnished him food. Prior to this occasion Randle had borrowed money from defendant Smith and had put up personal property as collateral, but the debt was subsequently paid and the property returned to Randle. Defendant knew that Randle had a radio and “Hi-Fi”, since he had listened to both. In fact, he had visited Randle frequently and they had “shot craps” together.

The State’s evidence further tended to show that about 1:30 p. m. on January 13, 1962, Arnold Kratchman, one of the owners of the apartment building, who was well acquainted with defendant Smith because of some past association with him, heard a loud crash in the back stairway of the apartment building and he came up to investigate. At that time he observed defendant Smith between the first and second stairway landings of the building with a “Hi-Fi” set in his possession and a plastic, dark-colored, table radio. Apparently the noise had been caused by the fall of the radio, since Smith was bending down picking it up when Kratchman arrived. Smith had been coming down the steps, but when Kratchman asked: “What are you doing with this radio and Hi-Fi set ?” Smith said: “I am carrying it up to somebody” and he turned around and started back up the steps. Kratchman described the radio and the record player substantially as described by Randle. Kratchman stood at the bottom on the stairs, while defendant was on the fourth step from the top and a little above Kratchman. Kratchman observed that defendant wore glasses and he recognized defendant, especially from his profile, since defendant had a “pronounced profile.” Kratchman did not note whether defendant was clean-shaven or had a mustache, but defendant did not have on a coat, gloves or hat. At one time defendant had worked as a maintenance man in the building for four days and then left, but later he had visited about the building and Kratchman had recently seen him.

Later the same afternoon several tenants-came down and advised Mr. Kratchman that the doors to Randle’s room were open.. Kratchman then went up to Randle’s apartment and “saw that the two locks on the-doors had been broken off, and the room was open.” He reported the matter to the-police and defendant Smith was arrested on January IS, 1962. When questioned by the police, defendant denied “any implication”’ in the offenses charged. No evidence was-offered on behalf of defendant.

There is no contention here that the State’s evidence was not sufficient to make a case for the jury on each of the offenses-charged or that the court erred in overruling defendant’s motion for judgment of acquittal presented at the close of the State’s case.

As stated, the only point in appellant’s brief is that “The form of verdict instruction, Number -8-, was erroneous since the state and court prevented the jury from finding defendant guilty of stealing under $50.00 without finding him guilty of burglary by deleting and omitting said instruction [sic] from the original form of verdict instruction.” The assignment is in conformity to the sixth assignment in defendant’s motion for a new trial.

Instruction No. 8 (omitting the forms of verdict which are not in question) is, as follows :

“If the jury find the defendant, LAWRENCE SMITH, guilty of both Burglary, Second Degree and Stealing, you may use the following form: * * * (form set out) * *

“If the jury find the defendant, LAWRENCE SMITH, guilty of Burglary, Second Degree and not guilty of Stealing, you may use the following form: * * * •(form set out) * * *.”

“If the jury find the defendant, LAWRENCE SMITH, not guilty of Burglary, Second Degree, and not guilty of Stealing, you may use the following form: * * * (form set out) * *

“Your one verdict, with a separate finding as to each offense charged, must be unanimous, must be signed by one of your number as foreman, and should he written upon a separate sheet of paper and not upon one of these instructions.” (Italics •ours.)

On this appeal, appellant seeks to raise (by argument) an issue not raised at the trial nor mentioned and preserved in the motion for new trial, to wit: that the •court erred in not instructing the jury on the issue of stealing of property of less value than $50. Appellant cites and relies upon Section 546.070 RSMo 1959, V.A.M.S. and Supreme Court Rule 26.02(6) which require the court, whether requested or not, to instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict. Appellant insists that the •court erred in failing to instruct as to lar■ceny and petit larceny; and that this was necessary for the jury’s information in giving their verdict. Appellant cites State v. Hecox, 83 Mo. 531, 537; State v. Hutchinson, 111 Mo. 257, 20 S.W. 34, 35; State v. Brinkley, 146 Mo. 37, 47 S.W. 793, 794; State v. Conway, 241 Mo. 271, 145 S.W. 441, 448. No such objection was presented at the trial or raised in the motion for a new trial. It will be noted further that the issue in question is not raised by the appellant’s single assignment in this court which is directed solely to error in the giving of Instruction No. 8.

By Instruction No. 2 the court submitted a finding of facts from which the jury might find defendant guilty of burglary, second degree, and the instruction further stated “unless you find the facts to be as above stated, you are instructed to acquit the defendant of Burglary.”

By Instruction No. 3 the court submitted a finding of stealing in connection with burglary, second degree, and in effect submitted a finding as to both offenses, omitted any required finding as to the specific value of the property taken, but required a finding that “the defendant feloniously and intentionally did steal property of any value” and continued with the words: “then you will find defendant guilty of Stealing and so ¡find in your verdict. And, unless you find the facts to be as above stated, you are instructed to acquit the defendant of Stealing.”

While Instruction No. 8 did not contain a form of verdict for the jury to use in the event that they should find the defendant guilty of stealing, but not guilty of burglary, second degree, nevertheless the offenses charged were submitted by separate instructions, as hereinbefore stated. (Instructions No. 2 and No. 3.) The matter was further covered by the closing paragraph of Instruction No. 8.

In the case of State v. Huff, 352 Mo. 1161, 181 S.W.2d 513, 516(7) the court said: “Again, appellant complains that the jury was not instructed that it could convict appellant of burglary and acquit him of larceny, or could convict him of larceny and acquit him of burglary, or that he could be convicted of both or acquitted of both charges. As we indicated above the burglary charge was submitted in one instruction and the question of larceny in another. Two separate instructions. Each concluded with the words, 'and unless you shall so find and believe from the evidence, you will find the defendant not guilty.’ The instructions, therefore, gave the jury the authority to do just what appellant contends it should have been instructed it could do.”

In the case before us, it is clear that the issue of defendant’s guilt or innocence of burglary, second degree, was properly submitted by Instruction No. 2, and in view of that finding the value of the property taken became unimportant so long as it had some value as submitted in Instruction No. 3 and the jury has found defendant guilty of both offenses as submitted. State v. Worley, Mo.Sup., 353 S.W.2d 589, 595(5, 6).

As stated, no objection was made at the time to the court’s failure to instruct on the offense of stealing property having a less value than $50, nor did defendant request such an instruction or raise that issue in his motion for a new trial. Nor did defendant specify or make any specific objections to either Instruction No. 2 or No. 3, or even mention such instructions or such issue in his motion for new trial. See Supreme Court Rules 27.20 and 70.02.

Appellant insists that only Instruction No., 8 “prevented the jury from finding appellant guilty of stealing under $50.00 without finding him guilty of burglary” and that this was error. We cannot agree. While it is true that Instruction No, 8 does not contain a form of verdict for the jury to use, if they found defendant not guilty of burglary, second degree, but did find defendant guilty of stealing property having a value of less than $50, yet no such offense was submitted to the jury, nor was objection made to such failure.

By his failure to object to the court’s action in not submitting an instruction on the offense of stealing property having a less value than $50, the defendant acquiesced in the submission as made and the court’s action in that respect cannot now be questioned in this court. See State v. Terry, Mo., 325 S.W.2d 1, 5. Acquiescence and consent to the submissions as made is further evidenced by the fact that no complaint as to the offenses submitted was made in the motion for a new trial.

On the record presented on this appeal, we need not determine whether the court should have instructed the jury on the. issue of stealing property having a value of less than $50. No such issue is properly before us. Perhaps the failure of defendant to complain of the court’s failure to so instruct the jury can be explained on the theory that the submission as made was more favorable to defendant. See State v. Brim, Mo., 339 S.W.2d 775, 780(6, 7) on which the State relies.

The judgment is affirmed.

All of the Judges of the Division and HUNTER, Special Judge, concur.