author:
HOUSER, Commissioner.
      PER CURIAM:.

text:
    STATE of Missouri, Respondent, v. Willie EVANS, Appellant.
    No. 51887.
    Supreme Court of Missouri, Division No. 1.
    Oct. 10, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Bruce Normile, Special Asst. Atty. Gen., Edina, for respondent.
    J. Whitfield Moody, Sloan Richard Wilson, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
   HOUSER, Commissioner.

Willie Evans has appealed from a judgment of conviction and 10-year sentence on a charge of second degree murder.

In his brief and in oral argument his counsel on appeal makes three points.

First, error is assigned in the admission of State’s Exhibit 6, which is a typewritten question and answer statement, prepared by a police detective and signed by appellant with an “X” mark. In it appellant recited the facts surrounding the shotgun shooting of Earl Carmichael by defendant. Appellant complains that the statement should not have been admitted in evidence because appellant could not read the statement; that he did not know exactly what was in it; that it was not an accurate record of what he intended to communicate to the detective, and that parts of it were inconsistent with his assertion of self-defense. Appellant says the detective who took the statement paraphrased his words. For instance, instead of the word “drunk,” which appellant used, the detective wrote the word “intoxicated”; instead of referring to “the incident” or some such innocuous descriptive term the detective inserted the language “the aggravated assault,” which words appellant did not use and which contradicted his recital of a set of facts showing that he shot in self-defense. Appellant claims that the detective changed his words around so as to phrase the statement in a manner which was “appropriate” or “more fitting” for the benefit of the police department. He says the officer was “more guided by his own idea of what he wanted the appellant to say than what the appellant was actually trying to convey.” It is further objected that the question “Have you been advised that you do not have to make a statement and if you do, anything you say can be used against you and you have the right to consult with counsel?” and the answer “Yes” written in by the detective is not convincing that appellant actually knew what he was doing and understood his rights. Conceding that a “formal, cursory” statement of his rights was made to appellant, it is urged that the officer told appellant that he would “have” to sign the statement with the word “Yes” written in after the waiver of constitutional rights, and that if appellant could not do it the officer himself would do it. Appellant concludes that the statement was not voluntary.

At appellant’s request the court conducted a preliminary inquiry on the question of voluntariness, outside the hearing of the jury. Then the detective who took the statement testified in extenso before the jury concerning the method and manner of interviewing appellant and taking the statement, as follows: The interrogation and composition of the statement occupied about 30 minutes. At its inception appellant was informed that the questions to be directed to him related to the shooting of Earl Carmichael (who at that time had not died); that appellant had been booked as a suspect; that the information obtained from appellant, if he was willing to give it, would be used against him in court; that appellant did not have to tell the officer anything, or answer any questions, or make any statement in regard to this charge, and that he had the free use of the telephone to contact counsel if he so desired. No coercion, threats, duress or promises were used to force the making of the statement. Appellant was “very cooperative” and “quite willing” to make a statement, saying “I don’t have anything to hide. I shot him and that’s all there was to it.” After he heard appellant’s version of the facts it appeared to the detective that it was a case of self-defense and he considered that appellant was cooperative “because he felt that he had acted in self-defense.” The detective would ask appellant a question, get his answer, and then write down question and answer. In preparing the statement the detective was as exact as possible. The statement is the best record of the information obtained from appellant. He did not always use appellant’s exact language, and in several instances paraphrased the answers given, but the statement is an accurate statement of the information communicated to the detective by appellant. When the statement was completed it was handed to appellant who stated that he did not have his glasses and could not see. The officer offered to and did read it to appellant, thoroughly and slowly, so that any discrepancies between his actual answers and the written report of them could be corrected and changed. At appellant’s request he changed the language from “I shot him one time” to “I shot him one time, or at least I shot at him,” with the explanation that he did not know or realize that he had actually struck Carmichael until the latter came back outside and told appellant he did not need to shoot him. He read the statement to appellant twice. Appellant said that it was the truth; that “that was the way it was.” When asked to sign it defendant again stated that he did not have his glasses and could not see so well. Appellant was then asked to sign it by making an X Mark, which he did.

Appellant took the stand at the trial and testified to a set of facts which, if believed, would have entitled him to an acquittal on the ground of self-defense, as follows: After having remonstrated with appellant for having “bothered” his girl friend Carmichael, whose hand had been “shaking” in his jacket pocket, drew out a butcher knife, with the blade pointing at appellant, and came toward appellant. Appellant backed up to a door, opened the door, went inside and got a loaded shotgun which was in a corner by a table. When Carmichael jerked the door open appellant told him to turn the door loose and get out, whereupon Carmichael said “I’m coming in there to get you” and made “another lunge” at appellant. At that time, as Carmichael was moving toward appellant, the latter shot him. Appellant was frightened, believing that Carmichael intended to stab or cut him. On cross-examination appellant testified that he gave the detective a statement that he shot Carmichael “to keep him from cutting me,” but claimed that the detective “didn’t write it that way.” In this claim appellant is mistaken. The statement recited that after the remonstrance about “bothering” his girl friend Carmichael pulled a butcher knife out of his jacket pocket and started toward appellant, who broke and ran to his apartment, where he picked up the shotgun; that he was trying to save himself; that he had been cut before and was not taking any chances. There was one discrepancy between the statement and appellant’s testimony at the trial. The statement recited that when Carmichael saw the shotgun he started to run down the hall towards Carmichael’s apartment; that appellant followed Carmichael “and just as he got into his hallway” he shot him. Those recitals implied that appellant shot Carmichael as the latter was retreating, not as he was advancing upon, appellant. On the stand, however, appellant repeatedly denied that he told the detective that Carmichael started to run when he saw the shotgun. In substantially all other respects appellant confirmed and did not repudiate the statement. He said he signed the statement without fear because he figured he had a right to try to protect and defend himself. Appellant did not claim that he was unable to read or write because of illiteracy, but accounted for his inability to read on the ground that he could not see to read.

If believed, the detective’s testimony demonstrates clearly that State’s Exhibit 6 was voluntarily given after adequate advice to appellant as to his constitutional rights; that in all substantial particulars the exhibit accurately reported the interview; that appellant was not imposed on by the officer or deceived as to the contents of the statement but was fully informed and knew and understood what the statement contained when he attested to it by making his mark. The inconsistency between appellant’s testimony on the stand that Carmichael was advancing upon him and the recital in the statement that appellant was following Carmichael down the hall when he fired the shotgun did not make the statement inadmissible in evidence. It merely created a fact issue. Whether appellant made that damaging statement when interviewed by the detective was a question of fact for the jury to resolve. It is true that the detective paraphrased appellant’s statements, but not to the prejudice of appellant. Except in cases of verbatim transcription some reconstruction of the words of the person being interviewed, by the person composing the questions and answers, is inevitable. A full and complete opportunity was given appellant to expose any imposition on him or any twisting of the meaning of his words in the “translation.” Appellant’s counsel conducted a careful and searching cross-examination of the detective on this phase of the case, covering nearly 30 pages of the transcript. The subject was very fully and adequately explored, to the maximum benefit of defendant. There was no error in the admission of State’s Exhibit 6 in evidence.

Appellant’s second point is that the court erred in overruling appellant’s objection to the final argument of the prosecuting attorney “that the defendant would go out and shoot another person if not convicted.” This point is based upon these two sentences excerpted from the argument: “if it goes unpunished, how many more will happen tonight?” and * * you decide if that is going to be permitted. If it is going to be permitted then this man and that society is going to breed more and more evil, but if we put a stop to this — * *

The argument was made in answer to defense counsel’s references to race, neighborhood and sociology. The assistant prosecuting attorney, after arguing that in a case of killing of a man because of a threat it makes no difference what the man’s race is or where he lives; that the law is the same on Ward Parkway as at 17th and Forest. Continuing, he said: “Gentlemen, if we are going to have a jungle society at 17th and Forest, out on Ward Parkway, or anywhere in Jackson County, it is because just such things as this go unpunished. You are the only ones, you twelve men are the only ones, that can decide whether or not this will stop. These men on the Police Department can’t stop it. I do my best when I present the case to you, but, gentlemen, I tell you it stops right here, I can go no further with it, you are the ones who are going to decide if there is going to be a jungle law down there where a man can execute any possible threat, run after him and fire through a window and take his life, or whether he is going to live under the same law that you live under and that I live under. Gentlemen, don’t blame the neighborhood. If you blame the neighborhood, the neighborhood will continue, it will continue to bear evil like this if we let this go. If it goes unpunished, how many more will happen tonight ? You gentlemen, you twelve men, are the community of Jackson County to decide right now. It is your duty to decide. If you are satisfied of this man’s guilt, that he without any just cause, any just cause as you know it, took a man’s life by chasing him down and when he turned around fired through a window, you decide if that is going to be permitted. If it is going to be permitted then this man and that society is going to breed more and more evil, but if we put a stop to this—

"MR. HARRINGTON: Objection. He is arguing this man would go out and kill someone else. He says this man and that society is going to breed more and more evil. I believe that is clearly objectionable. I ask for a mistrial.
"THE COURT: Overruled.”

The argument is unexceptional. The gist of the argument is that in order to prevent' the breakdown of law and order it is necessary for the community to punish a person who is guilty of an unjustified killing, and that if satisfied of this man’s guilt the jury had the duty to decide whether this should be permitted; and that if it is allowed to go unpunished other crimes will result. The whole argument was predicated upon a preliminary finding of the guilt of the defendant.

The necessity of law enforcement as a deterrent to crime, State v. Jones, Mo. Sup., 384 S.W.2d 554; State v. Feltrop, Mo. Sup., 343 S.W.2d 36; State v. King, Mo. Sup., 334 S.W.2d 34; the evil results which will flow to society from a failure of'the jury to do its duty, State v. Groves, Mo. Sup., 295 S.W.2d 169; State v. Cox, Mo. Sup., 352 S.W.2d 665; State v. Feltrop, supra; and the responsibility of trial juries in the suppression of crime, State v. Jones, supra; State v. Feltrop, supra; State v. Turner, Mo.Sup., 320 S.W.2d 579, are legitimate arguments, as long as the prosecutor stays within the record and the reasonable inferences to be drawn therefrom, State v. Jones, Mo.Sup., 384 S.W.2d 554, and does not make an inflammatory appeal so as to arouse the personal hostility of the jurors toward defendant, such as implanting in their minds the fear that defendant’s acquittal will endanger their own personal safety or that of some member of their families. State v. Groves, Mo.Sup., 295 S.W.2d 169. This is particularly true when, as here, the request for a conviction is related to a finding of guilt. State v. Turner, supra. These rules were not violated in this instance and there was no error in overruling appellant’s objection to the argument.

Appellant’s third point is that the court erred in admitting in evidence the bloodstained clothing of the deceased. Two articles of clothing worn by deceased when shot, apparently a shirt and undershirt, stained with dried blood, were admitted over objection that they would not tend to prove or disprove any issue in the case and were introduced for the sole purpose of inflaming the jury. The articles contained holes made by the shotgun blast. Offered as physical evidence to show the pattern of the shot and the size of the wound, they were admitted for the purpose of showing the location of the wound. Appellant claims the exhibition of the bloody garments was not justified because there was no dispute as to the location of the wound, and that every witness who viewed the body of deceased gave an accurate, precise and consistent description of the location, size and nature of the wound (approximately two inches in diameter, in the abdomen on the right side, just above the belt line).

This type of demonstrative evidence is admissible if it shows the nature of the wound or throws any relevant light upon a material matter at issue. State v. Moore, Mo.Sup., 303 S.W.2d 60, and cases cited, l. c. 65. Its admission or rejection is a matter within the sound discretion of the trial judge. We find no abuse of discretion. The mere fact that there was evidence upon all of the material facts shown by the exhibits does not necessarily make them inadmissible. Even more so than in the case of photographs, the articles of clothing themselves “give a much clearer impression * * * than any oral description and that is the reason for using them.” State v. Tyson, 363 Mo. 1242, 258 S.W.2d 651, 654 [4], Furthermore, as pointed out in State v. Moore, supra, 303 S.W.2d, l. c. 65, the state should not be unduly limited in the quantum of the proof, since the state has the burden of proving defendant’s guilt beyond a reasonable doubt. These exhibits graphically showed the pattern of the shot, the size of the wound, and the location of the wound. The shirt showed that the shot struck the front of the body of deceased. While this did not aid the state’s theory that Carmichael was retreating when shot, it did bear definitely upon the issue of self-defense. By demonstrating that Carmichael was shot as he faced appellant the exhibits tended to support appellant’s theory, and to this extent their admission was not prejudicial, but actually helpful, to appellant. While appellant complains that the exhibits were inflammatory, he does not contend that they were gruesome, and as a practical matter it is difficult to believe that their admission prejudiced appellant, who received the minimum sentence at the hands of the jury.

We find no prejudicial error respecting the sufficiency of the information, verdict, judgment and sentence.

The judgment and sentence is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:.

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

All of the Judges concur.


source: Caselaw Access Project

author: HOUSER, Commissioner. PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Carl Mason CRAIG, Appellant.
    No. 51823.
    Supreme Court of Missouri, Division No. 1.
    Sept. 12, 1966.
    Rehearing Denied Oct. 10, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Claude W. McElwee, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Jerry D. Mee, Springfield, for defendant-appellant.
   HOUSER, Commissioner.

Carl Mason Craig, charged with and convicted by a jury of second degree burglary, § 560.070, V.A.M.S., and sentenced under the Habitual Criminal Act to five years in the custody of the department of corrections, has appealed.

Appellant’s first point, that the court erred in submitting the case to the jury for failure of the state to make any substantial proof of appellant’s presence at the scene of the burglary, requires a review of the evidence. The state introduced the following evidence: At the close of business on July 26, 1965 Gerald Puchta, owner of South Street Market, a grocery and tobacco store in Springfield, swept the floor and about 7 p. m. secured the doors and windows, locked up and left for the night. Around 11:30 p. m. Donald Casada, who lived in a nearby apartment, heard glass breaking. He left his apartment to investigate, saw a man who he thought was wearing a striped shirt crouched over in front of the store, stooped over like he was picking up something, at or near the front door. A 1955 Chevrolet, color “white-over-green, green body,” was sitting in front of the store, close to the curb. The lights were on inside the market. A phone booth at the southeast corner of the store was lighted, and there was a street light. Casada jumped in his car which was fairly close and drove by the Chevrolet in an attempt to get the license tag number. His car came within 3 or 4 feet of the Chevrolet. He noticed a blonde woman with long hair sitting under the steering wheel. Casada drove three driveways beyond the Chevrolet, stopped, wrote down the license number, make, model and color of the car, then turned around, came back and parked his car. As he was walking towards the store to check the license to make certain that he got the right number the people at the store (he thought there were three persons, but was not “real sure”) drove away, to the south, in the Chevrolet. On the left side and middle of the trunk of the Chevrolet there was a faded-out spot that you could see “real good.” Casada gave the police the information he had, stating that he was not sure of what he had written down.

Jackie Lane, a 15-year-old girl who lived in the same neighborhood, heard a car drive up, heard a crash “like something had broken,” went to the window and saw two men standing at the door of the South Street Market, breaking in. There was a “white and dark” colored car parked in front of the store. A third person was in the driver’s seat. She could not see whether it was a man or a woman. One of the men was wearing a white shirt and dark slacks. It was too dark to see what the other man was wearing. Jackie went to a neighbor and asked her to call the police.

Police converged at the scene from every direction. Within a few minutes Casada and Jackie were asked to go to the police station. The police thought they had the people and wanted them to attempt to make an identification. At the police station they saw three people who had just been arrested, appellant Craig, Maude Preston and James Robinson. Neither was able to identify appellant as one of the men who had broken into the store. They were shown a 1955 Chevrolet, but it was colored white-over-blue. At the police station neither would identify the car as that used in the burglary, but after police drove the car to the market and parked it under the prevailing light at that place, which was different from the light at the station, Casada identified the car as that used in the burglary. The car was painted a kind of metallic blue. It changed colors under the different shades of light, and appeared green in the light at the market. The car exhibited at the police station had the same identical markings (the worn spot on the trunk) as the one used by the burglars.

When police arrived at the store at 11:45 p. m. the glass in the front door was broken out and scattered over the sidewalk. A cigarette display case was sitting out in front. Articles, including “a lot of” cigarettes, were strewn about on the sidewalk. Casada gave the police lieutenant what he thought was the number of the license plate, H 20295, together with the make and model of the car, a white and green 6-cylinder ’55 Chevrolet sedan, occupied by three people, two males and one female. This information was conveyed to the dispatcher at police headquarters and broadcast. The owner, notified, arrived on the scene and he and the police entered the store, found some food thrown on the floor, a crumpled up package of Pall Mall cigarettes, and that no less than forty-two cartons of cigarettes were missing. Puchta purchased all his cigarettes from Anderson-Parks, distributors, whose number, 27540, was stamped on each package. A police sergeant found a cigarette lighter on the floor of the store, against the wall, just inside the front door. It was a Monaco brand, windproof lighter, made in Japan. At the time Puchta locked up the store the lighter and the crumpled up package of cigarettes were not on the floor in the store.

Police Officer Halsey received information by radio from the dispatcher that a burglary had occurred and a description of the vehicle and subjects occupying the-vehicle was broadcast (white-over-green ’55 Chevrolet, Missouri license H-20295; person who broke in described as lean and dark hair, wearing a shirt with stripes in it; a heavy-set female and a third person, not described). Halsey saw a car matching this description on the Consumers Service Station lot at College just west of Nettle-ton. Consumers Service Station is 19 or 20 blocks from South Street Market. The car, white-over-faded blue, carried Missouri license number HT-0495. A man and a woman occupied the front seat and a man was sitting in the back seat. The car had a flat tire and an attempt was being made to get the station attendant to fix it when the officer drove up. The officer observed that the man in front was wearing a striped shirt, was dark-headed, slender and the female was stocky. The officer arrested the trio. This occurred about 45 minutes after the information came over the radio. The officer searched the car and in the front seat, found, among other things, a package of cigarettes. The trio consisted of Carl Mason Craig, Maude Preston and James Robinson. Craig was told that he was arrested for burglary and larceny at the market at South and Madison (Puchta’s store). Another officer searched Craig at the time he was arrested, and found a package of Pall Malls and a package of L & M cigarettes in his pocket. They bore the number 27540. The officers took the three arrested persons to the police station and booked them. The booking room was 8 by 12 feet and contained a 3 x 5 desk, a bench and some chairs. Defendant’s personal effects, including a cigarette lighter, were placed on the table in front of him. The officer who found the lighter in the store gave it to Officer Jared, who laid it on the table about a foot from Craig’s effects. Calling defendant’s attention to the lighter found in the store, the officer asked him if the lighter was his and defendant said the lighter was his, said the lighter was broken at the hinge; that the bottom of the hinge pulled up and the lid came off of it; that he had this lighter around the house and after he lost the case of his other lighter he had picked this lighter up to use. He further asked if the police were accusing him of stealing the lighter.

Defendant’s light, striped shirt fit the witnesses’ description of the shirt they saw being worn by one of the men while in the act of committing the burglary. Defendant was arrested less than an hour after the burglary, 20 blocks from the scene, in an automobile identified by two eyewitnesses as the car used in the burglary. The first letter, third, fifth and sixth digits of the license number on the car were the same as the number hurriedly written down by Casada at the scene of the crime. Defendant was one of three persons occupying the automobile — two men and a woman— and the burglars were three, two men and a woman. The woman was “stocky,” corresponding to Casada’s description of the woman at the scene as “heavy set.” Cigarettes found on defendant’s person at the time of arrest and in the front seat of the car he was occupying bore the same distributor stamp number carried on all cigarettes stocked at South Street Market. A lighter, found in the burglarized store, was identified by defendant as his property. The foregoing constitutes strong circumstantial evidence that defendant was present at the scene and participated in the commission of the burglary and was sufficient to submit the question to the jury.

Appellant’s second point is that the court erred in giving Instruction No. 4, which follows:

“The Court instructs the jury that evidence is of two kinds, direct and circumstantial.
“Direct evidence is where a witness testified directly of his own knowledge of the main fact or facts to be proven.
“Circumstantial evidence is proof of certain facts and circumstances in a given case from which the jury may infer other and connected facts which usually and reasonably follow, according to the common experience of mankind.
“Crimes may be proven by circumstantial evidence, as well as by direct testimony of eye-witnesses, but to justify conviction, the facts and circumstances in evidence must be consistent with each other and with the guilt of the defendant, and inconsistent with any reasonable theory of the innocence of the defendant.”

Appellant objects that No. 4 is too broad, is confusing, attempts to instruct on two areas of the law in a single sentence, infers that there was direct evidence of defendant’s complicity whereas the state was relying wholly on circumstantial evidence, permits the jury to find defendant guilty where a mere suspicion of guilt arose from the evidence, gives the jury a roving commission to find guilt on conjecture or surmise, and fails to relate the burden of proof of the defendant’s complicity with the instruction on circumstantial evidence. The instruction is not subj ect to these criticisms. The use of this instruction was entirely appropriate in this case founded wholly upon circumstantial evidence. It conforms to the rule laid down in State v. Armstrong, Mo.Sup., 361 S.W.2d 811, 818, with respect to terminology, and it would have been error to refuse it. State v. Regazzi, Mo.Sup., 379 S.W.2d 575 [3].

Appellant’s third point is that the court erred by failing to give a cautionary instruction on the jury’s duty to carefully consider defendant’s incriminating statements made outside of court. This subject was not a part of the law of the case, on which the court had a duty to instruct, but was a collateral matter. Defendant made no request for a cautionary instruction on this subject. Under these circumstances we cannot convict the trial court of error in this respect. State v. Daugherty, Mo. Sup., 320 S.W.2d 586, 591.

Appellant’s fourth point is that the court erred in overruling defendant’s motion to suppress evidence, the product of an alleged illegal search and seizure, and in admitting over defendant’s objections evidence that was the product of an illegal arrest. The evidence in question was two packages of cigarettes taken from the pockets of defendant’s shirt, two packages of cigarettes found in the front seat of the car, and defendant’s striped shirt. The motion to suppress was based upon two grounds: that the searches and seizures were made without warrant or other lawful authority and not as a result of a lawful arrest.

The motion to suppress was properly overruled. The arrest was lawful and the articles were seized as a result of a' lawful search incident to a lawful arrest. No warrant was necessary. Police officers may arrest without a warrant if they have reasonable cause to believe that the person arrested is guilty of a recent felony. State v. Wragg, Mo.Sup., 395 S.W.2d 196; State v. Phelps, Mo.Sup., 384 S.W.2d 616, 619. The searching and arresting officers had reasonable cause to believe that this defendant, and his two companions, were guilty of burglary and larceny of South Street Market. They had received information from the police radio dispatcher that a burglary was in progress at South Street Market, and that people were carrying things from the store. Later they were informed that the burglars had left the scene in an automobile. They had information as to the number of participants, two men and a rather large female, a partial description of the subjects involved, a description of the clothing of one of the men, and a description of the make, model and color of the automobile. A Missouri license number which it was obvious to the officers was not a correct Missouri license number was given. Within 45 minutes three people answering the description were found in a parked automobile fitting the description, parked in a filling station 20 blocks from the scene of the crime. The arresting officer inquired of the filling station attendant how long they had been there and was informed they had been there about ten minutes. These facts gave the officers reasonable cause to believe that this was the trio which had committed the burglary at South Side Market and under these circumstances the arrests were made not on suspicion merely but in the exercise of a reasonable discretion, in apparent good faith.

The fifth point raised is that the court erred in overruling defendant’s motion to suppress the incriminating statement defendant made at the time of booking (that the lighter found in the store belonged to defendant) “when he had not been advised of his state and federal constitutional rights by an attorney at this critical stage and being’indigent could not have had appointed counsel until a later period * * * thereby depriving him of equal protection of the law and due process.”

The motion to suppress alleged that the statements were secured by the use of coercion, fraud and duress. Counsel points out that the three persons arrested were in a small room with three or four officers present, and says that “there was an element of misleading or fraudulent conduct in inducing defendant to discuss a lighter.” We find no basis for this statement. There is no evidence of coercion, fraud and duress and the charge is not seriously urged.

The motion to suppress further alleged that defendant was not effectively advised of his right to confer with an attorney before making any statement or of his absolute right to remain silent during interrogation. The thrust of appellant’s argument is directed to that portion of the motion. He claims that he was in need of counsel for guidance at the time of his booking following his arrest, but was indigent and unable to employ counsel, and that the exclusionary rule of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265, should be applied to the statements made at the time of booking. Appellant asserts that an offer to allow him an opportunity to make a telephone call to an attorney would be an “empty gesture when he was unable to pay an attorney.” In effect appellant wants this court to rule that admissions are to be considered involuntary if made outside the presence of counsel.

This case was tried before June 13, 1966, and therefore the rules prescribed in Miranda v. State of Arizona, Nos. 759, 760, 761 and 584, October Term 1965, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, are not applicable. Those rules are not to be applied retroactively. Johnson v. State of New Jersey, October Term, 1965, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. The test to be applied in this case is whether the totality of circumstances deprived defendant of a free choice to admit, to deny, to refuse to answer, and whether there was physical or psychological coercion of such a degree that defendant’s will was overborne at the time he made the incriminating statement. State v. Beasley, 1965, Mo.Sup., 404 S.W.2d 689.

The totality of circumstances indicates that appellant had a free choice and that his statement was purely voluntary. Both at the time of arrest and in the booking room defendant and the other two persons arrested were told that they were arrested in connection with and were suspects in a burglary of the South Side Market. When booked he and the other two persons arrested were told that they had a right to remain silent and that “anything they said in regard to the events for which they had been arrested could be used against them.” One of the three persons arrested said “they” wanted to call an attorney. The officers did' not remember which one made that request, but all three were present at the time. They were told “that they could contact an attorney, and were asked who they wanted to get in touch with on the telephone.” There was a telephone available in the booking room and they were so informed but all three refused to make use of the telephone or contact an attorney, and thereafter none of them made any further request for an attorney. It was after their right to remain silent and to consult with an attorney, and after the warning that what they said could be used against them, that the discussion concerning the cigarette lighter took place. There was no evidence or suggestion of any improprieties on the part of the officers during the interrogation. From the totality of circumstances we find that defendant’s incriminating statement was voluntary; that appellant’s constitutional rights were not violated but were fully protected, State v. Boykins, Mo.Sup., 399 S.W.2d 70; State v. Pughe, Mo.Sup., 1966, 403 S.W.2d 635; and that the court acted properly in overruling the motion to suppress and in admitting the incriminating admission in evidence.

Next, appellant complains of the exclusion of defendant’s Exhibit 1, a photograph of the front door of the store, made in the daytime. Apparently it was taken on the front porch of Jackie Lane’s house. She said it was a fair representation of the store from the porch on the night of the break-in, except that it doesn’t show the window; that she could see the window. Appellant wanted to use it to demonstrate that because there was an automobile between her and the store she could not be sure how many persons were involved, two or three. The trial court, which is vested with some discretion in admitting or excluding photographs, State v. James, Mo. Sup., 367 S.W.2d 606 [3], considered that the difference in the lighting between pictures taken in the daytime and in the nighttime made the photograph inadmissible. Furthermore, Jackie Lane did not say that she viewed the scene from the porch, but said that when she heard the crash she went to the window and made her observations. The record does not show the relation of the window and the porch. We cannot convict the trial court of an abuse of discretion in refusing the photograph under the circumstances.

Appellant’s seventh and final point is a complaint that the state’s attorney in final argument made improper remarks which had the effect of commenting on defendant’s failure to testify. The assistant prosecuting attorney, commenting on the state’s failure to find some 30 or 40 cartons of cigarettes, stated that only defendant Craig knows where they are; that some 30 minutes elapsed between the time of the burglary and the time of the arrest; that the jury had heard the state’s witnesses, “And, by the way, it is uncontradicted testimony on the part of the state. Think about it. * * * ” Appellant argues that there was no evidence that he knew anything at all about the break-in and that this argument “surely brought to the minds of the jury that Carl Mason Craig had not testified and therefore, violated the mandates of 546.270, V.A.M.S. to the prejudice of defendant.” That a prosecutor’s argument that the state’s evidence was uncon-tradicted is not an improper comment on defendant’s failure to testify has been ruled many times. State v. Willis, Mo.Sup., 328 S.W.2d 593, and authorities cited, l.c. 595 [7]. The argument that only defendant knows where the cigarette cartons are was not a reference to defendant’s failure to testify. In State v. Romprey, Mo.Sup., 339 S.W.2d 746, this Court ruled that a prosecutor’s remark that “The defendant knows about things you don’t know about” was proper and did not constitute a reference to defendant’s failure to testify. This point is without merit.

Defendant was represented at the trial and on appeal by competent and diligent court-appointed counsel. Defendant had a fair trial. We find no error in this record. Examination of the matters required by Criminal Rule 28.02 reveals no error.

The judgment is affirmed.

WELBORN, C., not sitting.

HIGGINS, C., concurs.

PER CURIAM.

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

HOLMAN, P. J., HENLEY, J., and STORCKMAN, Alt. J., concur.

HYDE, J., not sitting.


author: STOCKARD, Commissioner. PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Robert W. McQUERRY, Appellant.
    No. 52081.
    Supreme Court of Missouri, Division No. 2.
    Oct. 10, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Glen C. Schomburg, Sp. Asst. Atty. Gen., Kirkwood, for respondent.
    No attorney for appellant.
   STOCKARD, Commissioner.

Robert W. McQuerry has appealed from a judgment wherein he was sentenced to confinement for a term of four years for manslaughter.

At the trial appellant was represented by counsel of his own selection who filed a motion for new trial after the jury verdict and a timely notice of appeal following judgment. The transcript on appeal filed in this court was not prepared at public expense. It appears that appellant is not in confinement pending this appeal, and presumably he is free on bond.

On July 13, 1966, the attorney who represented appellant in the trial court filed a motion in this court to be permitted to withdraw as counsel on appeal. He alleged therein that appellant “owns a farm and livestock and is financially able to pay for this appeal,” but that although requested to do so he has refused and still refuses to pay a reasonable attorney fee and advance the cost of printing a brief. A copy of the motion was sent to appellant. On July 21, 1966 this court granted counsel permission to withdraw, and a copy of that order was sent to appellant with a copy of the docket for the September term in which the appeal in this case was shown to be set for September 15, 1966. No communication of any kind has been received by this court from appellant or from anyone in his behalf pertaining to counsel’s request for permission to withdraw or pertaining to the setting of this case. At the trial appellant testified that he owned a 253 acre farm. We conclude from the record and from the file that appellant is not an indigent, and that he has voluntarily submitted this appeal to this court without counsel and without a brief. In these circumstances we review upon the record those matters required by Criminal Rule 28.02, V.A.M.R., and we review the assignments of error in the motion for new trial which present an issue for appellate review.

The first two assignments of error in the motion for new trial are that the trial court erred in refusing appellant’s motion for acquittal at the close of the evidence for the State and at the close of all the evidence. Appellant offered evidence in his behalf after the close of the State’s case, and for that reason we need consider only whether the motion made at the close of all the evidence should have been sustained. State v. Shelby, Mo., 327 S.W.2d 873, 874.

On the evening of February 12, 1965, appellant and his wife left their home near Winona in Shannon County in a pick-up truck to feed some hogs they kept nearby. They passed the log house home of Willis Robinett, then past 85 years of age, and his wife Clara Robinett who was 54 years of age. The Robinetts kept some milking goats in a barn across the road from their house, and after they had finished milking appellant and his wife came back to the Robinett house. According to appellant he wanted to talk to Mr. Robinett about tying up two dogs so they would not cripple his pigs, but Mrs. Robinett stated that the dogs were pups about three months old, and that appellant had given the pups to them. Mrs. Robinett also testified that she had entéred the house and was straining the milk when she heard a loud shot. She ran out of the house and her husband was sitting by the gate, and he screamed “my leg’s broken.” Mrs. Robinett carried a .22 caliber pistol, and she shot into the air but she did not know how many times. She said that she ran toward appellant’s truck, and “he [appellant] run me around there three or four times” and then shot her in the side when she was “heading back to [her] husband.” She then heard the first and only shot from her husband’s pistol. She had not heard any conversation between appellant and her husband. She carried a .22 caliber pistol and her husband carried a .32 caliber pistol (sometimes referred to as a 7.65 automatic) when they had gone to do the milking because appellant and his wife had threatened them, and said they were “going to run us off our home.” Later that evening a highway patrolman found at the scene four .45 caliber shells and one shell from “a 7.65 automatic” which is “about the same caliber as a .32” and is interchangeable. The next morning the patrolman found a fifth .45 caliber shell “on the ring of the cab [of appellant’s truck] just above the windshield.” The .22 caliber pistol was a nine-shot revolver type weapon with a cylinder. The following morning it contained four empty shells and five bullets, and the patrolman who examined it did not recall that any of the bullets had been struck by the firing pin without being discharged. However, the sheriff stated that all five of the bullets which had not been discharged had been struck by the firing pin. There was a bullet mark on the door of appellant’s pick-up truck apparently made by a .22 caliber bullet. The sheriff testified that the following morning there were no cartridges in the clip of the .45 caliber pistol, but he believed there was one in the barrel. He did not know how many cartridges were in the clip of the .32 caliber pistol but he said there was none in the barrel, and that “one shell had been fired out of it.” Mr. Robinett died shortly after the shooting.5 On his body were found bullet holes in his left leg, in his right hand, “under the right arm, across the wrist,” and in his chest.

Appellant and his wife both testified. Appellant stated that he had stopped to talk to Mr. Robinett about his dogs, and that Mr. Robinett had “hooked the gate and started on down to me” when Mrs. Robinett “run from somewhere, in my right rear, a-shooting, and Mr. Robinett then, he run his hand in his pocket and pulled his gun.” Appellant tried to start his truck, but Mr. Robinett “had fired two shots,” so appellant took his gun which he had on the seat of his truck and shot his “first shot” which he aimed “at his chest.” Mr. Robinett “spun around” and sat down. He was “trying to pull the gun off” and “was still pointing, trying to use it, but he never did pull it off.” Appellant stated that the shots fired by him other than the first one were aimed at Mr. Robinett’s gun which he had on his knee. As soon as Mr. Robinett dropped his gun, appellant “rolled out on the left-hand side” of his truck, Mrs. Robinett was standing on the right-hand side “snapping a pistol in the window,” and appellant ran behind the truck “and shot at her [Mrs. Robinett] when she was standing at the door.” Mrs. Robinett then “started around the truck in front” and appellant “reversed” himself to meet her, but she did not go around the truck. Instead, she went over to Mr. Robinett, threw her gun by the side of his, and said, “I quit.” The testimony of appellant’s wife was substantially the same as that of her husband, except she stated that Mr. Robinett said he was going to kill appellant when he pulled his gun and started shooting.

By the information appellant was charged with murder in the first degree. The jury was instructed on murder in the first degree, murder in the second degree, and manslaughter. Appellant admitted that he intentionally shot Mr. Robinett, and the evidence establishes that the death resulted from the gunshot wounds received from appellant. There was no contention that the shooting was accidental. There unquestionably was a submissible case on second degree murder. See State v. Finn, Mo., 243 S.W.2d 67; and State v. Chamineak, Mo., 343 S.W.2d 153. There may be some question under the circumstances of this case whether appellant was entitled, as a matter of law, to an instruction on manslaughter. State v. Finn, supra. However, that is an issue we need not decide. The trial court did give such an instruction and the jury found him guilty of manslaughter instead of murder in the second degree. “In this situation, when a submissible case is made as to murder, the defendant is not entitled to complain that a submissible case was not made as to a lesser degree of homicide.” State v. Chamineak, supra, 343 S.W.2d at p. 157. See also State v. Garrett, Mo., 282 S.W.2d 441; and Criminal Rule 26.06, V.A. M.R. The trial court correctly overruled appellant’s motion for acquittal at the close of all the evidence.

The third assignment of error is that the trial court erred in permitting Dr. Rollin Smith “to testify relative to the cause of deceased’s death for the reason that proper foundation was not laid.” In what respects appellant contends there was no “proper foundation” is not set forth, and for that reason the assignment is deficient. However, not adhering strictly to our rules, we have endeavored to determine the basis, if any, for the contention that a “proper foundation” was not laid. Dr. Smith was not a treating doctor, but he was called by the State as an expert witness to express an opinion as to whether the gunshot wounds received by Mr. Robinett caused his death. We assume that appellant’s position is that there was no “proper foundation” for the testimony of Dr. Smith as an expert, but if so the contention is without merit. Dr. Smith’s qualifications as an expert witness were admitted. A hypothetical question was submitted to him in which he was asked to assume the existence and location of the bullet wounds on the body of Mr. Robinett, the existence and location of which had been otherwise established by competent evidence. He was then asked whether in his opinion any of the wounds would likely produce death. He replied that the wound in the chest “could very easily be the cause of death,” and that the wound in the leg could be a “contributing factor” because of “shock and loss of blood.” This examination and testimony was proper, and it has long been the rule that a qualified physician may answer hypothetical questions as to the cause of death. State v. Truster, Mo., 334 S.W.2d 104. We find this contention of appellant to be without merit.

The next assignment of error is that the trial court erred in giving Instructions 5 and 6 pertaining to self-defense “because both instructions read together and apart are confusing, ambiguous and do not properly state the law and fail to apprise the jury of the law on the burden of proof.” This assignment is insufficient to present any issue for appellate review. See State v. Cooley, Mo., 221 S.W.2d 480, 484; State v. Breeden, Mo., 180 S.W.2d 684, 687; State v. Richardson, Mo., 321 S.W.2d 423. We note also, that it appears from the transcript that no objection was made to either of these two instructions at the time they were given. However, again not adhering strictly to our rules, we have examined each of the two instructions, and we find them to be in the form and content of instructions previously approved by this court. See State v. Demaree, Mo., 362 S.W.2d 500, as to Instruction 5, and State v. Aurentz, 315 Mo. 242, 286 S.W. 69, as to Instruction 6. The two instructions, pertaining to self-defense, do not mention the burden of proof. However, the trial court gave a separate instruction as to that, and when all the instructions are read together, as they must be, the jury was properly instructed that “the burden of proof rests upon the State to prove beyond a'reasonable doubt that the defendant is guilty, and unless [the jury] so found, [it] must acquit him.”

The next assignment of error is that the trial court erred “in permitting two witnesses to testify in rebuttal about alleged threats made by the defendant at 12:00 noon on the day of the homicide for the reason that the proper foundation was not laid and there was no testimony in chief that any alleged threats were ever communicated to deceased or his wife.” As was true in connection with the third assignment, we are not advised in what respect there was not a “proper foundation.” However, no “foundation” is required for the State to offer in rebuttal testimony contradictory of statements made by the defendant in his testimony. State v. Martin, Mo., 56 S.W.2d 137, 140. Appellant testified that he and the Robinetts had had no “serious” trouble previously. He admitted that Mr. Robinett had on several occasions reached in his pocket for a gun, but he stated that he “never did take him seriously.” On cross-examination he was asked if he told “J. V. Boyd and Gerald Conway [that he had told Robinett] if he didn’t put up the gun, you’d make him eat it,” and appellant answered: “No, I told him to put up the gun. I said, ‘You’d better put that gun up because there’s one laying on you.’ ” The only rebuttal witnesses were Mr. Boyd and Mr. Conway. Mr. Boyd stated that he was at appellant’s house about noon on February 12, 1965, and that he heard appellant say that he had told the Robinetts that “if they didn’t put a gun away, he’d make them eat it,” or “something like that, kind of a joking way.” Mr. Conway testified that he did not hear appellant “tell Mr. Boyd what he had told Mr. Robinett,” and that was the extent of his testimony. From the above, it is evident that on cross-examination of appellant a foundation was laid for the contradictory statement of Mr. Boyd, although not required. Also, while we consider it immaterial, there was prior testimony that threats of appellant were communicated to Mr. Robinett. Appellant testified that he had told him that there was a gun “laying on you.” We find no merit to this assignment of error.

Appellant next asserts that the trial court erred “in not instructing the jury about the alleged threats made by defendant to two of the State’s witnesses that testified in rebuttal in the cause on the day of the homicide.” This apparently refers to the testimony of Mr. Boyd and Mr. Conway, but Mr. Conway did not testify to any threats by appellant. This assignment does not inform us what instruction appellant thinks the court should have given, and no request whatever was made. Such an instruction would not be one upon a question of law necessary for the guidance of the jury in returning its verdict within the meaning of Criminal Rule 26.02(6), V.A. M.R. It could only be a cautionary instruction on an issue collateral to the principal issue which the trial court need not give in the absence of a request. State v. Garton, Mo., 371 S.W.2d 283, 288. We find no error here.

Appellant next asserts that the trial court erred in giving Instruction 4 on the issue of manslaughter because “there is no evidence in the case to warrant the giving of said instruction.” Apparently it is appellant’s contention, although this is not clear from the wording of the assignment, that he was either guilty of murder, or by reason of self-defense he was not guilty of any crime. By reason of the facts of this case we do not necessarily agree with this contention, but for purposes of discussion shall assume it to be true. This circumstance was recently exhaustively examined in State v. Wallach, Mo., 389 S.W.2d 7, both as to the substance of the statutory provisions pertaining to this situation, and as to their constitutionality. As previously stated, the evidence in this case would support a conviction of murder in the second degree. In § 545.030, RSMo 1959, V.A. M.S., it is provided that the trial, judgment or other proceedings shall not be stayed, arrested or in any manner affected “[b]e-cause the evidence shows or tends to show him [the defendant] to be guilty of a higher degree of the offense than that of which he is convicted.” In addition, specifically applicable to homicide, is § 556.220, which provides that “any person found guilty of * * * manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide.” An instruction on manslaughter was given in this case, and in view of the above statutory provisions, held to be constitutional in State v. Wallach, supra, appellant is not entitled to complain that the evidence of the State, if believed by the jury, authorized a finding of guilty of murder in the second degree.

The remaining assignment of error is that the trial court erred in permitting Chester Arthur to sit as a juror “for the reason that he was not in the jury box when the voir dire examination was conducted and did not answer any questions propounded touching his qualifications to sit as a juror, but the said Chester Arthur was sitting in the audience.” It is then asserted in the assignment that these facts “came to defendant after said jury had been selected.”

The transcript contains nothing in support of this assignment of error, and the unverified allegations of appellant in his motion for new trial do not prove themselves. State v. Chandler, Mo., 314 S.W.2d 897. We note that appellant does not allege that the information came to him after verdict, but instead he alleges that he obtained the information after the jury had been “selected.” This implies that during the trial he knew of this circumstance. A defendant is not entitled to wait until the verdict is in, thus gambling on the result, and then complain of some misconduct of a juror or some circumstance of which he had knowledge in time to present the matter to the trial court for corrective action. State v. Burns, 351 Mo. 163, 172 S.W.2d 259, 267. Also, assuming that the circumstance did occur as alleged, there is nothing presented by affidavit or otherwise which would indicate any prejudice to appellant.

Our examination of those matters of record for which no assignment of error is required for appellate review, Criminal Rule 25.02, V.A.M.R., discloses that the information is sufficient, appellant with counsel present waived formal arraignment and entered a plea of not guilty, the verdict is in proper form and is responsive to the issues, and the punishment is within the limits prescribed by law. The record also shows that appellant and his counsel were present throughout the trial, appellant was granted allocution, and the judgment is responsive to the issues and the verdict.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: HOLMAN, Presiding Judge.

text:
    SHERMAN TOWNSHIP, CASS COUNTY, Missouri, Respondent, v. L. J. FARR, Appellant.
    No. 52177.
    Supreme Court of Missouri, Division No. 1.
    Oct. 10, 1966.

      Crouch, Crouch, Spangler & Douglas, Harrisonville, for respondent.
    Don F. Whitcraft, Harrisonville, for appellant.
   HOLMAN, Presiding Judge.

This action was instituted by Sherman Township, Cass County, Missouri, seeking a pro forma decree to the effect that a proposed $68,000 road bond issue is valid. See §§ 108.310 to 108.350, inclusive (all statutory references are to RSMo 1959, V.A.M.S.). L. J. Farr filed an intervening petition in which he sought a judgment to the effect that the bond issue was invalid because the funds were to be used, in part, for the purchase of road machinery and equipment, which purpose was alleged to be beyond the authority granted by statute. See §§ 233.450 to 233.470, inclusive. The trial court adjudged that “the $68,-000.00 Sherman Township Road Bonds be and the same are hereby declared valid bonds legally issued, and that all of the laws of the State of Missouri have been fully complied with, and that the same are issued for a lawful purpose authorized by law, and that such bonds are valid and binding obligations upon said Sherman Township.” Intervenor Farr has duly appealed. We have appellate jurisdiction because Sherman Township is an organized township of Cass County. Fleming v. Clark Township of Chariton County, Mo. Sup., 357 S.W.2d 940.

At the election held October 2, 1965, the bonds were approved by the voters by a vote of 82 to 25, which was more than the required two-thirds majority. As stated in the judgment of the trial court, all procedural steps required by the foregoing statutory provisions have been complied with and we see no reason for detailing such herein. On November 22, 1965, E. F. Hutton & Company was found to be the highest and best bidder for said bonds and was declared to be the purchaser thereof. On December 13, 1965, the State Auditor signed a certificate which appears on each bond and which reads as follows: “I, Haskell Holman, State Auditor of Missouri, do hereby certify that all the conditions of the laws of the State of Missouri have been complied with in the issuance of the within bond, and that all the conditions of the contract under which it was ordered to be issued have been complied with, the evidence of which is on file in my office; and I further certify that this bond has been duly registered in my office in compliance with the laws of the State of Missouri.”

It is provided in § 233.465 that the proceeds received from the sale of the bonds shall be disbursed “in payment of the cost of holding said election and in paying the cost of constructing or improving roads in such districts or townships, including bridges and culverts.” The order of the county court calling the bond election, and the published election notice each provided : “ * * * the proceeds of said bonds to be used for the purpose of paying the cost of purchasing necessary equipment, and the cost of constructing and improving the public roads of such Township, including bridges and culverts, the proceeds of such bonds to be first used in the purchase of such equipment, and then for the construction and improvement of all mail route roads in said Township, including rocking any of said mail route roads not heretofore rocked, and constructing or improving any bridges or culverts thereon, and the remaining proceeds of said bonds to be used for improving the other roads of such Township.”

The sole question presented upon this appeal is whether the proposed bonds are invalid because the declared purpose of the bond issue included the expenditure of a part of the funds for the purchase of the necessary equipment for use in constructing and improving the roads of the township.

William Ryberg testified that he is President of the Board of Trustees of Sherman Township; that the township owns one eleven-year-old motor grader which is “about worn out”; that the Board has decided to use funds from the bond issue to purchase a new motor grader at a cost of $14,500 and that the remaining $53,500 would be used for labor and material; that it would cost $900 a month to rent such a grader. Mr. Ryberg further testified that there were about 60 miles of roads in the township and that it is anticipated that two years will be required to complete the improvement program and that the $68,-000 would not go far if the township were required to let contracts for the construction and improvement project.

There is no provision in § 233.-450 et seq. which specifies how the road work shall be accomplished. It appears clear from § 231.150 et seq. that a township such as the one here involved has the authority to own equipment and employ workmen and to use same in maintaining and improving the roads of the township. Since § 233.450 et seq. contain no provision prohibiting the township from using the proceeds of the bonds in constructing and improving the roads by the use of its own employees and equipment we think it is reasonable to infer that it has the authority to do the work in that manner. In other words, since the method of carrying out the improvement project was not specified in the statutes, we think it was the intent of the legislature to give the township the discretionary authority to accomplish it either by use of its own equipment and employees or by letting one or more contracts for the work.

As indicated, we hold that the township may use the bond proceeds in employing the labor and purchasing the materials to accomplish the improvement project. It is shown by the evidence that it is also necessary to use a motor grader in doing that work and that the one now owned by the township is worn out and unfit for that purpose. The only question remaining for our decision is whether the grader must be rented or whether the township has legal authority to use a portion of the bond money to purchase one.

In State ex rel. Wahl v. Speer, 284 Mo. 45, 223 S.W. 655, 660, it is stated that “[t]he rule for interpreting statutes, that a power given carries with it, incidentally or by implication, powers not expressed, but necessary to render effective *the one that is expressed, would require the construction that authority to incur a debt for the erection of a public building impliedly embraces authority to buy a site for it; and this for the plain reason that without a site the building cannot be erected.” To like effect is Reilly v. Sugar Creek Township of Harrison County, 345 Mo. 1248, 139 S.W.2d 525, 526, wherein it is said that “[a] grant of authority to a township to issue bonds for the purpose of raising funds to pay for the construction of roads, necessarily carries with it the authority to pay for rights-of-way upon which to build the roads. If such were not the case the authority to construct roads would be an empty and useless power.” A similar ruling appears in State ex rel. Ferguson v. Donnell, 349 Mo. 975, 163 S.W.2d 940.

The evidence indicates that it would be possible (though more expensive) to rent a motor grader. However, if that were done the grader would have to be surrendered at the end of the rental period and the township might then be without equipment to perform the endless task of maintaining the roads. We see nothing in any of the statutes heretofore cited which indicates that the legislature intended to prohibit the township from using a part of the bond proceeds in purchasing the equipment needed to do the contemplated road work. The cases heretofore cited are not precisely applicable because it is not absolutely necessary to buy the grader in order to make the improvements. As stated, such could be accomplished by renting a grader or by letting a contract. However, since we have held that the township has the discretionary authority to do the work without letting a contract, and since there is no statutory provision prohibiting the use of bond funds for the purchase of the necessary equipment, we think that under the facts and circumstances here presented the authority to so purchase said equipment must be reasonably implied.

We accordingly rule that the township has the authority to use a portion of the bond proceeds to purchase the necessary equipment in order to accomplish the road improvements and that the bonds are not invalid because the order calling the election and the election notice each stated (which is admittedly the intent of the Board of Trustees) that the proceeds of the bond issue would be used, in part, for the purchase of that equipment. Stated affirmatively, we rule that the bonds in question were legally issued, and, when delivered, will become valid and binding obligations of Sherman Township.

The township has also briefed the contention that “the registration of such bonds by the State Auditor constitutes a valid defense to an attack on the validity of such bonds as to the issues presented in this cause.” In view of the foregoing ruling we need not decide that point.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. William Earl FORSYTHE, Appellant.
    No. 51902.
    Supreme Court of Missouri, Division No. 1.
    Oct. 10, 1966.

      William Earl Forsythe, pro se.
    Norman H. Anderson, Atty. Gen., Jefferson City, Robert K. Ball, II, Special Asst. Atty. Gen., St. Joseph, for respondent.
   HOLMAN, Presiding Judge.

Defendant was found guilty of the offense of drawing and delivering an “insufficient funds” check in the amount of $400 in violation of § 561.460, as amended, Laws 1963, p. 684, V.A.M.S. His punishment was fixed by the jury at imprisonment in the county jail for 60 days and a fine of $500. Defendant has appealed from the ensuing judgment. The statute provides that if the check involved is in the amount of $100 or more the offense is a felony, and hence this court has jurisdiction of the appeal.

In the development of a subdivision defendant engaged the Trogden Construction Company to grade certain streets. In September 1963 defendant owed the company about $2,800. At that time Mr. Trogden advised defendant that he intended to file a mechanic’s lien unless the debt was paid. Defendant proposed to pay the debt in installments of $400 per month if Trogden would not file the lien. That was agreed to by Trogden and defendant paid the installments for October, November, and December. On January 6, 1964, defendant gave Trogden the check in question which was never paid although twice presented to the bank. Defendant’s account in the bank was overdrawn to the extent of $44.87 on the date the check was given. An official of the bank testified that the check was dishonored because of insufficient funds.

Defendant has not filed a brief in this court. At the outset of our consideration of this appeal we have examined the record as required by S.Ct.Rule 28.02, V.A. M.R., and have concluded that the information is fatally defective.

Section 561.460, supra, provides, in part, that “[a]ny person who, to procure any article or thing of value or for the payment of any past due debt or other obligation of whatsoever form or nature or who, for any other purpose, shall make or draw or utter or deliver, with intent to defraud, any check, draft or order, for the payment of money, upon any bank or other depositary, knowing at the time of such making, drawing, uttering or delivering, that the maker or drawer has not sufficient funds in or credit with such bank or other depositary for the payment of such check * * The information charges that defendant made and delivered the check in question, “knowing at the time that he the said William Earl For-sythe did not have sufficient funds in said bank to pay said check upon its presentation at said bank * * Such does not follow the wording of the statute which proscribes the giving of a check, knowing at the time that the maker does not have sufficient funds in or credit with such bank for the payment of such check. There are two essential elements relating to the maker’s knowledge, i. e., (1) insufficient funds in, or (2) credit with such bank. Only one of those essential elements was alleged in the instant information. Where the information fails to contain an essential averment in the description of the offense it must be held bad even after verdict. State v. Biven, Mo.Sup., 151 S.W.2d 1114. As indicated, we hold that the information is fatally defective.

The judgment is reversed and the cause remanded.

All concur.


author: STORCKMAN, Judge.

text:
    J. M. PULLIAM, Respondent, v. W. H. BOND, Henry C. Chatterson, and R. A. Johnson, Appellants.
    No. 51124.
    Supreme Court of Missouri, Division No. 2.
    Sept. 12, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 10, 1966.

      Thaine Q. Blumer, Blumer & Wright, Kansas City, for respondent.
    Gray & Sommers, Charles E. Gray, St. Louis, Jack C. Terry, Kansas City, for appellants.
   STORCKMAN, Judge.

This is an action for libel wherein the jury returned a verdict for plaintiff for $30,000 actual damages and for punitive damages aggregating $20,000 against three defendants. Motions for new trial were overruled on the condition that $15,000 be remitted from the actual damages. The plaintiff remitted accordingly and a judgment was entered for $15,000 actual damages and $20,000 punitive damages. The defendants appealed from the judgment so rendered.

The plaintiff and the defendants were all members of the Executive Committee of the Joint Protective Board Brotherhood Railway Carmen of America on the Missouri Pacific System and Allied Lines. The claim of libel is based on a written statement charging the plaintiff with misconduct in his official capacity. The statement of charges was prepared, signed and filed by a majority of the Executive Committee as provided by the rules and bylaws of the Brotherhood. The Brotherhood of Railway Carmen consists of a Grand Lodge and various subordinate or local lodges. The Joint Protective Board, sometimes referred to as the Board, consists of the duly elected Local Protective Board chairmen from each of the participating lodges. The officers of this Joint Board are the chairman, first vice-chairman, second vice-chairman, and the secretary-treasurer, who with three other elected members constitute the Executive Committee of seven members. The defendant Bond was chairman, the plaintiff was first vice-chairman, and the defendant Chatterson was secretary-treasurer of the Joint Protective Board and, as such, they were members of the Executive Committee. Other defendants were elected members of the Executive Committee. The offices on the Joint Board held by Mr. Bond and Mr. Pulliam are sometimes referred to in the transcript and exhibits as the General Chairman and the Vice-General Chairman, respectively, but for brevity at least we will generally refer to them as chairman and vice-chairman.

Among other duties the chairman of the Joint Board had general direction of local chairmen in their work; he was required to attend all legitimate calls from local lodges for advice, consulation or adjustment of grievances and disputes. The chairman had authority to deputize any other member of the Executive Committee to assist him in performing his duties when necessary. Among the duties specified by the bylaws and rules of the Joint Protective Board, the first vice-chairman was required to perform such duties as were assigned to him by the chairman of the Board. Generally the officers on behalf of the Board were required to discharge such duties as may be imposed upon them by law including the making of reports to federal or state authorities and the maintaining and keeping of records as required by law.

The vice-chairman or any member of the Executive Committee of the Joint Protective Board when working under the direction of the chairman was entitled to receive a monthly salary and an allowance for expenses “while away from home point”. When any member was engaged less than a month, he was entitled to receive salary “based on the days worked”. The monthly salary was $650 and the daily salary was $21.67; the expense allowance was $20 per day. Expense accounts were required to be itemized and approved by the chairman before payment. The Executive Committee was required to examine and approve or reject expenditures referred to them by the chairman. It was further provided that money and property of the Board should be used only for the benefit of the Board and such purposes permitted or required by the constitution of the Brotherhood of Railway Carmen and not for the personal gain or profit of any officer or member. The officers were to be held to this standard of conduct and accountable for any breach thereof.

The plaintiff, a resident of North Little Rock, Arkansas, had been a member of the Brotherhood of Railway Carmen for about 20 years. He was elected vice-chairman of the Joint Protective Board at the biennial convention in May 1959 and thereby became a member of the Executive Committee. As vice-chairman the plaintiff represented members of the Brotherhood in disputes and grievances with the Company. He got his assignments from chairman Bond who was a full-time employee of the Board with offices in St. Louis. The plaintiff was regularly employed by the railroad as a car inspector. For his part-time work for the Joint Protective Board, he was paid the daily rate of $21.67 and when he was away from his “home point” he was also entitled to the expense allowance of $20 per day. The plaintiff, like other officers of the Joint Protective Board, had a pass on the Missouri Pacific Railroad which he was supposed to use for transportation when he was on business for the Board. Travel by private automobile was not ordinarily authorized because free transportation was available on the railroad and the Brotherhood might be exposed to liability in case of an automobile accident while the representative was so traveling.

The transcript of the record consists of 681 pages so the minutiae will be omitted and further essential evidence will be related and discussed in connection with disposition of the questions presented. For the present, it is sufficient to say that the evidence tends to show that chairman Bond began to encounter difficulties with the plaintiffs expense accounts early in 1960. The plaintiff’s expense accounts were sent in duplicate to chairman Bond whose duty it was to approve them before they were sent to Mr. Chatterson in Kansas City for payment.

At an Executive Committee meeting held the latter part of October 1960, the plaintiff’s expense accounts and activities were the subject of extensive discussion. This was the first meeting attended by the defendant R. A. Johnson who was appointed to fill a vacancy on the Committee. On October 28 the Executive Committee went over practically all of the plaintiff’s expense accounts for 1960 beginning with the month of February 1960. This part of the meeting at least was taken in question and answer form and was made a part of the minutes of the meeting of the Executive Committee. The evidence shows that charges had been filed against chairman Bond for “mal-function of the duties” of his office and that he had been tried and cleared of these charges on October 3 and 4, 1960. At the October meeting Mr. Bond announced to the other members of the Executive Committee that he had had to become exceedingly careful to what he signed his name and he was going to be very careful in the future; that, “Some people have taken advantage of us and it is going to stop.” Before approving the plaintiff’s expense accounts for April and May 1960, chairman Bond had discovered errors and charges which he rejected and, at the chairman’s request, the statements were corrected by the plaintiff and resubmitted. At this Executive Committee meeting it was asserted that the plaintiff had made several unauthorized trips, two of which were admitted by the plaintiff. It was further asserted that the plaintiff had used his automobile on trips without authorization; that in one instance he had traveled by airplane without approval or disclosure, and that the plaintiff had “walked out of” an investigation in Omaha which resulted in criticism and embarrassment to the chairman and necessitated setting up another investigation at a cost to the Joint Board of about $800. At one point in the Executive Committee meeting, the plaintiff asked if any charges had been preferred against him and when he was given a negative answer, he stated, “Then I won’t answer any more questions — I want no questions asked me.” At the conclusion of the discussion, the plaintiff was admonished by the chairman just to carry out his assignments in the future and not to use his automobile unless authorized.

After the Executive Committee meeting was concluded, the members of the Committee, other than the plaintiff, asked chairman Bond to investigate further and report to them. On January 28, 1961, the members of the Executive Committee, other than Mr. Bond and Mr. Pulliam, signed a statement charging the plaintiff with violation of the Grand Lodge Constitution in that he made unauthorized trips to points on the railroad in the capacity of vice-general chairman, that he charged the Board with pay for trips away from his home point when he was under pay from the carrier at his home point, and that he was guilty of breach of conduct by abstracting- funds for personal gain as set out in the minutes of the Executive Committee meeting held October 26, 1960. This statement bore the notation that it should be submitted to the Board’s attorneys for approval.

The statement of charges as revised by the attorneys is the basis of the libel action. It is dated February 17, 1961, and signed by Executive Board members George Franklin, R. A. Johnson, W. H. Smith, H. C. Chatter-son and W. W. Waters. It is addressed to H. C. Chatterson, Secretary-Treasurer, Missouri Pacific Joint Proctective Board, and reads as follows:

“The majority of the Executive Committee of the Missouri Pacific Joint Protective Board hereby charge Mr. James M. Pulliam, Vice-General Chairman, Missouri Pacific Joint Protective Board and Local Chairman, Harmony Lodge No. 114, Little Rock, Arkansas, with malfeasance of office in that he made numerous unauthorized trips to points on the railroad in the capacity of Vice-General Chairman without authorization to do so. Mr. Pulliam is also charged with using his automobile to make unauthorized trips to various points on the railroad in the capacity of Vice-General Chairman and that he charged to Joint Protective Board for pay for trips away from home when he was under pay from the carrier at his home point.
“Mr. Pulliam is further charged with malfeasance in office for illegally abstracting funds of the Missouri Pacific Joint Protective Board for personal gains by submitting to the Board for approval statements requesting payment for expenses, pay and per diem for dates to which he knew he was not entitled, said dates being as follows: September 8th, 1960, February 11th, 1960, February 13th, 1960, February 20th, 21st and 22nd, 1960, April 5th, 1960, April 11th, 1960, May 1st, 2nd and 25th, 1960, May 27th, 1960, August 4th and 9th, 1960.
“By virtue of the foregoing malfeasance in office Mr. Pulliam is specifically charged with violation of Section 21-A, Grand Lodge Constitution, Section 1-A, Grand Lodge Constitution, Section 72, Lines 83 through 87, Subordinate Lodge Constitution, Section 73, Lines 59 through 62, Subordinate Lodge Constitution, and Sections 501-A and 501-C Labor-Management Reporting & Disclosure Act of 1959.
“Under the provisions of Section 501-B, Labor-Management Reporting & Disclosure Act of 1959, claim is further made against Mr. Pulliam for all funds unlawfully received by him and demand is hereby made that he immediately refund to Missouri Pacific Joint Protective Board all refunds found to be illegally received.
“A majority of the Executive Committee deeming it necessary to protect the welfare and funds of the membership, does deem it advisable to remove from office Mr. James M. Pulliam pending the trial of these charges, and Mr. Pulliam is hereby removed from the office of Local Chairman, Harmony Lodge No. 114, Little Rock, Arkansas, and from the office of Vice-General Chairman, Missouri Pacific Joint Protective Board, effective immediately.”

Section 501 of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C.A. § 501) in general provides that (a) officers and representatives of labor organizations occupy positions of trust and it is the duty of each such person to hold its money solely for the benefit of the organization and its members and to expend the same in accordance with its constitution and bylaws and to refrain from dealing with such organization as an adverse party; (b) when any officer or representative is alleged to have violated such duties and the labor organization or its governing board or officers refuse or fail to sue or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member, such member may sue to recover damages or secure an accounting; and (c) any person who embezzles, steals or unlawfully and willfully abstracts or converts to his own use any of the money or funds of a labor organization of which he is an officer, or by which he is employed, directly or indirectly, shall be fined or imprisoned, or both.

A copy of the charges was sent to the plaintiff at his home address as provided by the rules of the Brotherhood. There was evidence that the plaintiff presented a copy of the charges to his lodge, that he met with the officers of his lodge the day he received the charges and showed them he had been removed from office, that it was necessary to have the vice-chairman take over, but that he did not give copies of the charges to anyone else “at that time”; he “might have” given out some copies before the convention in May. The plaintiff gave copies to the man that represented him in the trial before the Trial Committee of the Brotherhood. He did not remember giving out copies to other persons in Little Rock.

On this appeal the defendants contend their motions for directed verdicts should have been given because: (1) the charges against the plaintiff were brought and processed pursuant to the constitution and bylaws of the organization and, therefore, the statement of the charges was absolutely privileged; (2) in the circumstances of the case the plaintiff consented to the publication of the charges; (3) in any event, a qualified privilege was applicable and the charges were shown to be substantially true thereby rendering the plaintiff guilty of malfeasance in office; (4) there was no publication of the charges by the defendants beyond the limits permitted by a qualified privilege; (5) since a qualified privilege existed, there could be no presumption of malice, there was no evidence of express malice and to permit a recovery without a showing of malice would violate the defendants’ rights under the First and Fourteenth Amendments of the Constitution of the United States. The defendants also assert that the court committed prejudicial error in the admission and refusal of evidence and in giving certain instructions.

The first question presented is whether the statement of the charges preferred against the plaintiff was absolutely privileged. A related contention is that the communication was qualifiedly privileged in any event. In support of their primary contention, the defendants cite Warren v. Pulitzer Pub. Co., 336 Mo. 184, 78 S.W.2d 404, White v. United Mills Co., 240 Mo. App. 443, 208 S.W.2d 803, and Porter v. Eyster, 4 Cir., 294 F.2d 613. The Warren case involves the publication by a newspaper of a feature article recounting the plaintiff’s career as a minister and his church trial for improper conduct which resulted in his expulsion from the ministry. The Warren case is quite persuasive but, since it involves the republication by the newspaper and not the original proceedings, the case falls short of deciding this precise issue. White v. United Mills holds that a notice of separation demanded by the State Labor Commissioner of Kansas pursuant to Kansas law and submitted by an employer upon the form provided by' the commissioner and indicating the employer’s reasons for discharging the employee was absolutely privileged. Porter v. Eyster held that the chairman of the Board of Stewards of a race track acting as provided by law under authority of the West Virginia Racing Commission in posting a notice upon a bulletin board that the plaintiff had been ruled off of the premises for acting improperly as a veterinarian was absolutely privileged and even if the chairman had only a qualified privilege there was no abuse of such privilege by excess publication although as a result of such posting the notice was published in newspapers of general circulation. The latter two cases appear to involve persons acting directly in quasi judicial capacities under legislative authority.

“The class of occasions where the publication of defamatory matter is absolutely privileged is confined within narrow limits to cases in which the public service or the administration of justice requires complete immunity from being called to account for language used.” 53 C.J.S. Libel and Slander § 102, p. 164. The classic examples of the application of an absolute privilege are the proceedings of legislative bodies, judicial proceedings, and communications by military and naval officers. As indicated above, there is a tendency to extend the absolute privilege to occasions where the communication is provided for and required by law.

The defendants urge that the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 501, brings this case under the extension of the rule of absolute privilege. We decline to so rule on this record. The federal statute does not clearly require the processing of charges in this manner and its influence on the proceedings seems to be secondary. The procedure used is more clearly in conformity with the rules and bylaws of the Brotherhood of Railway Carmen. On the record made, the rule of absolute privilege was not applicable to the statement of charges.

“It seems to be generally recognized that a qualified privilege attaches to statements and communications made in connection with the various activities of such organizations as lodges, societies, labor unions, etc. Thus, it is well settled that members of such bodies may report on the qualifications of applicants, prefer charges against fellow members, offer testimony in support of the charges, and make proper publication of any disciplinary action that may be taken, without liability for any resultant defamation, so long as they act without malice.” 33 Am.Jur., Libel and Slander § 132, p. 131. To the same effect are the statements in S3 C.J.S. Libel and Slander § 118, p. 194; Restatement of the Law of Torts, Vol. 3, § 596 d, p. 257; and Annotations: Libel and Slander — Labor Disputes, 19 A.L.R.2d 694, 698, § 5, and Defamation Connected with Labor Disputes, 150 A.L.R. 932, 949, c. 1. The Brotherhood of Railway Carmen has the attributes of a lodge and labor union, and the manner in which the charges were preferred were within the framework of the organization. The trial court correctly held that the communication in question was entitled to the protection of a qualified or conditional privilege. Williams v. Kansas City Transit, Inc., Mo., 339 S.W.2d 792, 796 [2]; Lee v. W. E. Fuetterer Battery & Supplies Co., 323 Mo. 1204, 23 S.W.2d 45, 60[14]; Holmes v. Royal Fraternal Union, 222 Mo. 556, 121 S.W. 100, 105[4], 26 L.R.A.,N.S., 1080.

By accepting membership in the Brotherhood, the plaintiff must be held to have consented to be subjected to having written charges filed against him and to have such charges processed in the' manner provided by the constitution and bylaws of the organization and by applicable statutes. Hellesen v. Knaus Truck Lines, Mo., 370 S.W.2d 341, 345-346; Cleveland Orchestra Com. v. Cleveland Fed. of Musicians, 6 Cir., 303 F.2d 229, 230[1]; Ginsburg v. Black, 7 Cir., 237 F.2d 790, 794[4]; Commonwealth v. Shipherd, 157 Pa.Super. 27, 41 A.2d 429, 431 [1]; Shurtleff v. Stevens, 51 Vt. 501, 31 Am.Rep. 698, 53 C.J.S. Libel and Slander § 95, p. 151, § 149, p. 232; Restatement of the Law of Torts, Vol. 3, § 583, p. 220; 29 U.S.C.A. § 411(a) (5).

In this posture of the case the plaintiff contends that the court properly refused to grant defendants’ motion for a directed verdict “because the evidence was substantial that defendants maliciously and intentionally conspired to and did libel the plaintiff for the purpose of injuring his reputation and thereby defeating him in a union election, and that publication of the libel was made beyond and in abuse of any privilege.” First we will deal with the assertion that the written statement was maliciously inspired. “The utterance or publication of a communication on a privileged occasion rebuts the inference of malice and falsity which would otherwise arise as a matter of law; and, where such a communication is shown, the burden of proving its falsity and that the defendant was actuated by express malice is generally held to be on the plaintiff.” 53 C.J.S. Libel and Slander § 101, p. 161. The rule is recognized in Missouri as well as elsewhere that the existence of a conditional or qualified privilege precludes an inference of malice from the communication of false and defamatory matter and the plaintiff has the burden of proving express malice. See: Hellesen v. Knaus Truck Lines, Mo., 370 S.W.2d 341, 345[9], State ex rel. Zorn v. Cox, 318 Mo. 112, 298 S.W. 837, 839[2], Kleinschmidt v. Johnson, Mo., 183 S.W.2d 82, 84[3, 4], Cook v. Pulitzer Publishing Co., 241 Mo. 326, 145 S.W. 480, 490[16], Emde v. San Joaquin County Central Labor Council, 23 Cal.2d 146, 143 P.2d 20, 28[16], 150 A.L.R. 916, and New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686.

On the issue of actual malice all the evidence tends to prove that the dissatisfaction with plaintiff’s official activities arose prior to the time the plaintiff decided to run for general chairman of the Joint Board and even longer before he disclosed his intention and it became generally known that he was a candidate. Some of the charges made in the communication addressed to the defendant Chatterson were conceded by the plaintiff. At the October 1960 meeting of the Executive Committee, the plaintiff admitted that he made trips which chairman Bond had not authorized and one which had been expressly forbidden. He used his private automobile in traveling on official business without authorization on at least one occasion. The plaintiff’s theory of libel as submitted to the jury in his verdict-directing instruction was limited to the second and third paragraphs of the statement of charges; however, all references to the constitutions of the Grand Lodge and the Subordinate Lodge appearing in the third paragraph were omitted from the instruction although § 501 of 29 U.S.C.A. is mentioned which in turn refers to the constitution and bylaws of unions. The charges of malfeasance made in the first paragraph of the statement were not submitted at all. The matters omitted must be deemed abandoned by the plaintiff as grounds of recovery. We mention this at this point, however, as bearing on the good faith of the defendants and the issue of express malice, rather than the questionable propriety of the instruction in this and other respects. In determining the issue of malice, we must consider the entire statement of charges and the evidence or lack of evidence in support of its allegations. Warren v. Pulitzer Publishing Co., 336 Mo. 184, 78 S.W.2d 404, 417 [22].

Much of the evidence in support of the charges of malfeasance by illegally abstracting funds is conceded. For example, the plaintiff at ten minutes before midnight on February 8, 1960, boarded a train in Little Rock which was due to depart at ten minutes after midnight. He charged the Board a day’s salary and per diem expenses for February 8 although the time involved was ten minutes on the train before midnight and he was not supposed to collect the expense allowance while in Little Rock, his “home point”. A similar instance occurred on at least one other occasion. The plaintiff claimed salary and expenses on days when the person with whom he was supposed to have an engagement denied he was with the plaintiff. The plaintiff on one occasion claimed salary and expenses when he was in Little Rock because he had expedited his return by use of airplane transportation. There are several incidents of this sort. The plaintiff sought to justify charging the Board in this manner by evidence that others had followed that practice, or the assertion that chairman Bond knew the true situation and made no objection. If the practice was wrongful the Brotherhood membership could not be estopped by similar acts or the acquiescence of others.

Where all the facts stated are completely true, no defense of privilege is necessary since the truth is always a defense to libel. Warren v. Pulitzer Publishing Co., 336 Mo. 184, 78 S.W.2d 404, 412 [1]. “It is only in the event that defendant has published concerning plaintiff defamatory matter which is untrue that recourse need be had to the doctrine applicable to communications which are privileged. So it is generally held that if the communication is a privileged one, made in good faith, without malice, under probable cause to believe it to be true, and without negligence, the falsity of the communication does not destroy the privilege.” 53 C.J.S. Libel and Slander § 99, p. 156. To the same effect, see Kleinschmidt v. Johnson, Mo., 183 S.W.2d 82, 86[9], and 53 C.J.S. Libel and Slander § 89, p. 143. There is no evidence that the defendants knowingly or in bad faith included any false statements in the communication in question.

Furthermore, there is no substantial evidence that the defendants issued the statement for the purpose of defeating the plaintiff in a union election. The plaintiff testified that he decided to run for the office of general chairman after the meeting of the Executive Committee held on October 26-28, 1960. There was no activity on his part that would charge the defendants with any knowledge of his candidacy until “somewhere around February 11” when the plaintiff called on the defendant Johnson and told him he was going to run for general chairman. Mr. Johnson testified he told the plaintiff that he might not “be around” because charges were being filed. At that time the initial draft of the charges dated January 28, 1961, had been signed. All of the evidence tended to show that facts which constituted the substantial basis of the charges had been discovered and the plaintiff had been confronted with them before he decided to run for the office of chairman. This is established by plaintiff’s own evidence.

The plaintiff further contends that the communication was published excessively and beyond the limits of the privilege. There is no direct evidence that the defendants caused the statement of charges to be communicated to anyone not authorized by the constitution to receive it. Nor are the circumstances such that it can reasonably be inferred that the defendants were responsible for posting a copy of the charges on the bulletin board in the railroad yards at Houston, Texas, or for the presence of the copy observed in a railroad office in Little Rock. On the other hand, the exhibition of the charges by the plaintiff to members of his local lodge and others is a more reasonable explanation of the knowledge of the charges which the plaintiff asserts his neighbors and fellow workers had.

The defendants offered to prove that the plaintiff, tried before a Trial Committee, was found guilty and was ordered suspended which punishment or discipline was later changed by a convention of the organization to a reprimand. The offer was refused and the defendants contend on this appeal that the evidence should have been admitted, but we do not reach the question for decision. There is no dispute, however, that the charges against the plaintiff were processed as provided by the constitution and bylaws. In the very nature of this procedure which was binding on the plaintiff, it is inconceivable that the charges would not receive publicity beyond the persons to whom the defendants were obligated to furnish copies of the charges. The defendants would not be liable, however, for any republication or dissemination of the communication by the plaintiff, or which resulted from the independent or unauthorized acts of others into whose hands the statement came in processing the charges in the manner contemplated by the constitution and bylaws of the Brotherhood. 53 C.J.S. Libel and Slander § 85, p. 137.

A presumption generally exists that acts have been performed in good faith and rightfully as opposed to any presumption of misconduct or illegality. State ex rel. Kugler v. Tillatson, Mo., 312 S.W.2d 753, 757[7]. A finding of excessive publication cannot be based on speculation or surmise. The burden of proving actionable publication was on the plaintiff. We conclude that there was no substantial evidence that the defendants published the communication in violation of their privilege.

If the doctrine of qualified privilege is to have meaning and effectiveness, it must be interpreted to give protection from civil liability where warranted by the occasion to which the privilege attaches. On the whole record we conclude that a qualified or conditional privilege was applicable to the occasion in question and that there was no substantial evidence of any abuse or violation of the privilege by the defendants.

In support of his contentions on these issues, the plaintiff has cited § 559.430, RSMo 1959, V.A.M.S., and several Missouri decisions, some of which we have referred to in the course of the opinion. We have examined all authorities cited and others but find nothing to justify a conclusion contrary to that which we have reached. For the reasons assigned, the trial court erred in refusing to direct a verdict in favor of all defendants who have appealed. In view of the. conclusion reached, it is unnecessary to consider other allegations of error presented.

Accordingly the judgment is reversed as to all defendants.

All of the Judges concur.