author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Richard Lee POLLARD, Appellant.
    No. 52836.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.
    Rehearing Denied March 11, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Thomas J. O’Brien, Sp. Asst. Atty. Gen., Kansas'-City, for respondent.
    Dewey S. Godfrey, Jr., St. Louis, for appellant.
   BARRETT, Commissioner.

The appellant, Richard Lee Pollard, with a prior felony conviction was, in the language of the statute, RSMo 1959, § 560.120, V.A.M.S., charged with robbery with a dangerous and deadly weapon, specifically that on January 7, 1966, with a pistol “did rob, steal, take and carry away one hundred dollars, lawful money of the United States; the property of Peoples 905 Liquor, Incorporated, a corporation, in the care and custody of Harry Grossman by then and there putting the said Harry Grossman in fear of an immediate injury to his person, and then and there did feloniously and by force and violence to the person of the said Harry Grossman, rob, steal, take and carry away the said money * * A jury found Pollard guilty of the charge and the court fixed his punishment at 25 years’ imprisonment, RSMo 1959, § 560.135, V.A.M.S.

In brief the circumstances were that at 11 o’clock in the morning of January 7, 1966, Tim Baskin, the porter at the 905 liquor store, 600 North Vandeventer Avenue, and a beer truck driver were unloading and stacking cases of beer in a rear room. Harry Grossman, the manager, was standing near the cash register and “at different times” there were “two fellows” waiting to see the porter — ostensibly to borrow small sums of money. Grossman turned around when “a customer came in” and asked for a bottle of wine. When he turned around the other two men had moved, one just inside the swinging door to the rear, the second to the left of the ice vendor and the wine customer, pointing a pistol, said “This is a stick up.” Grossman said, “Are you kidding? * * * I’m not afraid of that thing.” The gunman “pulled back the chamber and he shot me once,” the bullet went through his right leg and out the left — because of the wound it became necessary to amputate his right leg. Gross-man identified the appellant as the man who shot him, took $1200.00 to $1300.00 from a cigar box kept in a cooler, $50.00 to $60.00 from the cash register and the bottle of wine. The three robbers, all armed, ran out the door and then separated, two ran toward an alley north and the third one, the appellant, ran across the street west. All three robbers were Negroes and Grossman identified the appellant as the man who pointed the gun and shot him. When pressed on cross-examination as to his ability to identify and “differentiate” between defendant and “another líegro of similar color and size” Grossman said, “I looked right in the man’s eyes. * * * All I can say is I can remember that face in front of my eyes as long as I live.” These briefly narrated circumstances, needless to say, support the charge and the jury’s verdict. State v. Key, Mo., 411 S.W.2d 100; State v. Shannon, Mo., 413 S.W.2d 198.

Upon this appeal a single assignment of error was briefed and argued by most competent court-appointed counsel. It is that the court erred in “admitting all evidence of Defendant’s pre-trial identification by witnesses Grossman, Armour and Moore because said identification in the ‘lineup’ was unnecessarily suggestive and conducive to irreparable mistaken identification of the Defendant.” Although the trial and confrontations here were prior to June 12, 1967 (Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199) it is sought by this assignment to bring the cause within United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. In the motion for a new trial the specifications of error are that the court erred “in allowing evidence of the show up to be introduced in evidence for the reasons that the show up was so unfairly set up that there was no doubt that defendant would be identified” and, second, that the court erred in allowing Mr. Gross-man “to testify as to his identification for the reason that only one person (Pollard) was brought before him for him to identify, thus said action denied to defendant the equal protection of the laws.” Even if the principles announced in the Wade and Gilbert cases may be said to be applicable, the assignments of error in this case are not so supported by the record as to bring the case within their condemnation for two of the reasons set forth in the Wade opinion “the in-court identifications had (in part) an independent source * * * (and) in any event (in this particular case) the introduction of the evidence was harmless error.” United States v. Wade, supra; State v. Blevins, Mo., 421 S.W.2d 263.

As indicated, Grossman made an in-court identification of Pollard as the person who shot him and took the money and although he had never seen Pollard prior to the robbery he was very positive he would “remember that face in front of my eyes as long as I live.” Grossman gave a description of the robber who held him up to the police and in this he was not accurate as to his height or weight. The circumstances do not appear but Grossman identified photographs of Pollard. On the fourth day after the robbery and his amputation Pollard was brought to the hospital alone and Grossman identified him as his assailant. It is not necessary to consider and weigh Grossman’s identification alone because to do so is to consider it out of the context of the trial and it does not stand alone. Oscar Armour operated the Big Q Inn, “a 3.2 place” at 611 Vande-venter, diagonally across the street from the 905 liquor store. About 11 o’clock on January 7, 1966, he was standing “in the window” of his place looking toward the street and “there’s a lot of commotion out there and, you know, and people.” And so he walked out on the sidewalk and was talking to Frank Moore when “I seen two guys running, going up the alley to your right, and the other one — . Another one came across the street by my place. * * * He was coming off the lot (905 lot) when I first seen him. * * * I watched him till he passed me * * * about eight or ten feet” and went on “up the little driveway.” Armour then made his in-court identification of Pollard as the man who ran past him because he recognized him at that time. Subsequently Armour identified Pollard in the police station but as to his identification as Pollard ran from the liquor store there were these questions and answers:

“Q. And had you ever seen this man before?
“A. I had seen him a couple of times.
“Q. I mean prior to January 7, 1966, had you ever seen him ?
“A. Oh, yes. I seen him.
“Q. And how many times? You said a couple of times.
“A. Well, you know, quite a few times.
“Q. All right. And where, if you remember, where did you see him?
“A. I have seen him around in the vicinity. I have seen him up on Newstead and Delmar.”
******
“Q. Now, but you have seen him around the neighborhood?
“A. I have seen him before, yes.
“Q. So you had seen this man on several occasions before January 7, 1966, is that right?
“A. Oh, yes, sir.”

On cross-examination this further information was elicited :

“Q. — Now, when the person was going towards Washington, he had the back of his head turned toward you, did he not?
“A. Yes, I imagine he did.
“Q. You couldn’t identify him from the back of his head, could you?
“A. He came right by me. I was standing right there. He came right across the street by me.”
******
“Q. You had seen him on numerous occasions, you said, three or four occasions.
“A. Yes, I have seen him.”
******
“Q. Well, you said you had seen him before, and I’m asking you then why could you not give the police on the date the incident happened a better description than what you’re telling us you gave the police?
“A. Oh, well, I give them the description as far as I know of the fellow, but as far as me knowing Jiis name, I never know the man’s name.
“Q. I didn’t ask you about his name, but you said he was five-six and a dark brown-skinned individual. That’s all you could tell the police, is that right ?
“A. That’s all I could tell, and he asked me would I know him again, and I told him yes.”

Thus, while Armour did not give the police an accurate description of Pollard as to height and weight, it is obvious from his testimony that his “identification” was not identification in its conventional sense of “a matter of opinion or belief” (42 C.J.S. pp. 374-375), he identified Pollard as he ran from the scene of the robbery, at police station and in court because of his “acquaintance” that is “In its concrete sense, a person or persons with whom one is acquainted” or because he personally knew him. 1 C.J.S. p. 915. The only strictly “lineup” identification was that made by Moore who was standing in front of Armour’s tavern, and it turned out that he had some knowledge if not acquaintance with Pollard:

“Q. Now, had you ever seen this man before? (that is, as he ran across the street with “some object in his hand”).
“A. I remember seeing him one or two times in the neighborhood but not—
“Q. All right. Do you know where you saw him?
“A. How’s that ?
“Q. Do you know where you saw him prior to January 7?
“A. Oh, just like you pass someone in the streets. I never had anything in common with him or talk to him or nothing like that.”

Their testimony has been quoted rather extensively because the language in the idiom of the witnesses illustrates more clearly than a narrative of what they said that Armour’s identification in court or elsewhere, as well as Moore’s if not Gross-man’s, was not based on, as the question was put in the first sentence of United States v. Wade, “a post-indictment lineup conducted for identification purposes. On the contrary, Armour’s, and perhaps Moore’s, “identification” of Pollard was based on prior personal acquaintance — or, in a sense, on personal knowledge. In these circumstances there could be no manifest prejudicial error in the admission of any of the unobjected-to evidence concerning the appellant’s identity as one of the three robbers who with guns held up Grossman and robbed Peoples 905 Liquor. Accordingly the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: ROBERT L. ARONSON, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lynn Wayne HESTER, Appellant.
    No. 47318.
    Supreme Court of Missouri, Division No. 3.
    March 11, 1968.

      Norman H. Anderson, Atty Gen., Jefferson City, Thomas J. O’Brien, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    David E. Blanton, Sikeston, for appellant.
   ROBERT L. ARONSON, Special Judge.

Defendant was found guilty, by verdict of a jury, of the offense of Murder in the First Degree on June 21, 1958. In due course he was allowed in forma pauperis to perfect an appeal to this court. The judgment of conviction was affirmed on February 8, 1960, in an opinion reported at Mo., 331 S.W.2d 535.

Although defendant was represented by privately employed counsel at his trial, no one briefed or argued his cause of action on appeal. This court fully complied with the requirements of its rules then in effect, and covered in its opinion the matters required to be ruled. However, subsequent opinions of Federal courts (Bosler v. Swenson, 8 Cir., 363 F.2d 154 and Swenson v. Donnell, 8 Cir., 382 F.2d 248) have disapproved this procedure. Therefore the prior affirmance has been set aside, an order has been made directing the trial court to appoint counsel to brief and argue the case on appeal (which was done) and the case has now been re-presented on briefs and oral arguments.

We need not repeat in full the statement of the facts as delineated in the opinion in 331 S.W.2d loc. cit 536; and factual references herein will be limited to the necessities in connection with our ruling on the live issues. Based on the testimony of appellant’s accomplice, Joe Slayton, he and appellant left Chaffee, Missouri, on January 5, 1957, in a stolen automobile, looking for filling stations to hold up. In time they drove into Sikeston, where they saw a young man named Johnnie Malugen and a girl June parked in an automobile. Appellant suggested that they “take this girl away from her boy friend.” He stopped the stolen automobile, they both put on black masks and appellant walked to the left side of the automobile in which the couple were sitting. He opened the left door and ordered the young man out. Ma-lugen slammed the door shut, appellant opened it again and immediately fired two shots. The girl attempted to run away, but was caught by Slayton and was raped by him.

More than a year later, in February, 1958, while confined in the reformatory at Boonville for automobile theft, Slayton wrote to his mother, in order to ease his conscience, and informed her that appellant had shot Johnnie and that he had raped June. After interviewing Slayton, the officers arrested appellant at his mother’s home in Wellston on February 20, 1958.

Present counsel for defendant, while making the contentions hereinafter to be considered, says in his brief that he “has reviewed other points raised by the Motion for a New Trial, and has considered the opinion written by this court in affirming the conviction. The cases as cited and relied upon by the court seem to have covered the points * * Also, in oral argument he conceded that the court had adequately covered the points raised before, and that the opinion correctly disposed of the issues then before the court. Of course, these concessions are commendable, for no attorney is required to stultify himself by presenting arguments he cannot conscientiously assert. See State v. Ball, Mo., 408 S.W.2d 17, 19.

The contention now vigorously made, in several forms, is that appellant’s rights against self-incrimination under the Fifth Amendment of the Constitution of the United States were violated by the use in evidence of written and oral confessions; and the case relied upon as authority is Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, decided June 13, 1966.

From the opinion in State v. Aston, Mo., 412 S.W.2d 175, loc. cit. 183, we quote: “In Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the Court held that the sundry admonitions announced in the case of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, did not apply to any prosecution in which the trial was started before June 13, 1966. They are, therefore, inapplicable here.” See also State v. Rapp, Mo., 412 S.W.2d 120, loc. cit. 125, State v. Holland, Mo., 412 S.W.2d 184, loc. cit. 186, and State v. Dixon, Mo., 411 S.W.2d 185, 186.

As noted at the outset of this opinion, the instant case was tried in June, 1958. Therefore the Miranda case has only tangential interest, as is true also of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Again reverting to State v. Aston, supra, 412 S.W.2d loc. cit. 183, “In this situation we consider the ‘totality of the circumstances’ surrounding the making of the statements. State v. Beasley, Mo., 404 S.W.2d 689, and cases there cited and discussed, including Escobedo. See also State v. Craig, Mo., 406 S.W.2d 618.”

Some matters which appear in the Transcript on Appeal herein are of special significance. When the written statement, State’s Exhibit A, was produced during the testimony of Deputy Sheriff Michael, the witness testified that defendant signed the statement and in his own handwriting wrote the words, “I have read the above statement which is true. Lynn Hester.” There was then a recess to allow defendant’s attorney to read the Exhibit. Following the recess the Prosecuting Attorney offered it in evidence. “The Court: Any objection? Mr. Munger (defendant’s attorney) : No.” The Exhibit (which incidentally is not included in the transcript) was not read to the jury until after a prolonged cross-examination of the witness. There was no complaint in defendant’s Motion for a New Trial that the statement or confession should not have been received in evidence.

Thus it is clear that during the trial the defense did not assert its right to a preliminary consideration by the court of the question of the voluntariness of the confession. In effect, the admissibility of the Exhibit was conceded.

In State v. Hill, Mo., 419 S.W.2d 46, when a gun was offered in evidence, defense counsel said, “No objection.” It was held that in this circumstance defendant had no right afterwards to challenge the admissibility of the gun in evidence. Similarly in State v. Simone, Mo., 416 S.W.2d 96, loc. cit. 100, and in State v. Holbert, Mo., 416 S.W.2d 129, loc. cit. 131-132, it was held that an affirmative waiver of a possible objection bars the later presentation of an objection. In these instances the objection was based on a theory of unlawful search and seizure.

The positive statement of defendant’s privately employed counsel that he had no objections to the receipt in evidence of the written confession, and the absence of any objection to testimony of oral confessions thereafter made, could well provide adequate basis for a holding here that objection has been waived at the time of trial and cannot be presented in this court on appeal. Whether or not to make an objection, or to declare openly before the jury that there was no objection, is often a matter of trial strategy, on the part of an experienced trial lawyer, such as defendant’s trial counsel in this case. However, we prefer not to rule this issue on what might be considered to be a technical ground, and we shall proceed to consider the admissibility of the confession as a voluntary statement, under the “totality of circumstances” rule mentioned above.

As already stated, defendant was arrested at his mother’s home in Wellston, about 6:25 p. m. on February 20, 1958. He was taken to the Wellston police station for a brief time and he made no complaint of any mistreatment or compulsion directed toward him there. He was then taken to the headquarters building of the St. Louis police department. Here he was questioned on the evening of February 20 and was permitted to make a telephone call to his mother. On the morning of February 21 he consented to a lie detector test. In his testimony he made no complaint of his treatment at the St. Louis headquarters. On the afternoon he was taken in the automobile of Sheriff Dennis of Scott County from St. Louis to the Sheriff’s office in Benton. The Sheriff was accompanied by the Police Chief of Sikeston and by the Prosecuting Attorney of Scott County. Before leaving St. Louis they had also stopped at a bank and had picked up, for the ride, the brother of the Prosecuting Attorney, who previously had been a Circuit Judge. Two stops were made en route for gasoline and food, and there was no complaint of mistreatment during that journey. The party arrived at the Sheriff’s office in Benton in the early evening, variously estimated at 6:30 to 7:00 p. m. The Prosecuting Attorney and the Police Chief went on their way, and the other passenger had left the car in Cape Girard-eau. The Sheriff and his Chief Deputy, Aubra Michael, questioned defendant. Deputy Sheriff Clayton brought some sandwiches and drinks. Sheriff Dennis left his office at times to attend to other business. Sheriff Scott of Mississippi County was present for a time after he brought a prisoner to Benton. Chief of Police Brace of Sikeston was present for a time.

Defendant testified that he was told by the Sheriff and his Chief Deputy that they had the gun used in the killing of Johnnie Malugen and had found defendant’s fingerprints on the gun and on the car and on the porch of the nearby house where the rape had occurred. He was also told, he said, that they had witnesses who would say he had scratches on his face. In time Joe Slayton’s statement or parts thereof were read to him. Deputy Sheriff Michael was the one who read the statement of Slayton. After Slayton’s written statement was read, the defendant, who previously had said nothing or claimed he did not know what his questioners were talking about, was urged that he might as well tell the truth and get it off his conscience. Finally he told them that he had shot Malugen and he signed the written confession, which had been typewritten by Mrs. Schaerer, the Sheriff’s secretary and deputy who had been brought from her home for the typing of the written statement.

When asked by his counsel why he signed the statement, defendant said that it was because he was beaten, that Michael had used his knuckles and the palm of his hand and that Dennis had hit him once with the palm of his hand and hit him across the chest with two Life magazines rolled up.

The next morning, February 22, the Sheriff, his Chief Deputy and defendant left Benton for Chaffee. They had breakfast together in a public restaurant.

Defendant was taken to a hill east of Chaffee, where a search was made for the gun. The officers testified that he had told them the gun had been thrown away in this area, but defendant testified that he did not lead the officers there, they just took him along. When they asked him to show where he had thrown the gun, he said, “Well, this isn’t the spot.” No gun was found.

They then went to the home, in Chaffee, of defendant’s grandmother, where his aunt and mother were also present. In the presence of the Police Chief of Chaffee and the Police Chief of Sikeston, he was permitted to go into the house, where he talked with his mother, his aunt, and his grandmother. He made no complaint to them that he had been beaten.

The officers and the defendant talked to defendant’s uncle, Ross Gregory, while in Chaffee. He was called as a defense witness and testified on cross-examination that defendant told him that he had shot the boy; also the defendant told him that he got the pistol from the uncle’s house, but the uncle denied that he had a .32 caliber pistol. When defendant became a witness immediately following his uncle, he did not deny this conversation.

The next day, which was February 23, defendant was taken from Benton, the county seat, to Sikeston. There he was brought into the presence of June, the victim of the rape, and her mother. June testified that he told her at this confrontation that he had shot Johnnie Malugen.

It should be noted that the Sheriff testified that he had given defendant advice as to his rights, to the effect that he need not answer questions and that anything he might say could be used against him, in the Wellston City Jail, at the St. Louis Police Headquarters, and again at the Sheriff’s office in Benton.

In rebuttal, Sheriff Dennis and Deputy Michael contradicted the testimony of defendant as to the alleged force. Both testified that neither of them had laid a hand on the defendant, had not threatened him nor promised him anything.

In the circumstances disclosed by this record, must uncorroborated statements of the defendant be accepted as against all the other evidence in the case? “Totality of circumstances” must mean a careful, conscientious appraisal by this court of all the evidence that bears on the present claim of involuntariness of the confession.

The claim that a confession was induced by force is very easy to make; and one who may have hope that this claim will evoke sympathy or otherwise aid his caise has an obvious motive to make it. There are times when a court should be skeptical of such a claim.

The assertion that defendant was beaten as set forth in defendant’s testimony has very little detail; it is like a skeleton with very little flesh. There was no testimony as to how long a time he was beaten, nor how many blows were struck. There is no proof of even the slightest mark, bruise or discoloration. Not only did none of the witnesses to his signature on his confession see any physical results of physical force applied to his face or body, but he made no complaint when he saw his mother, his grandmother and his aunt in Chaffee the next morning, nor when he saw his uncle. His aunt and grandmother gave testimony for the defendant and neither of them testified to any mark or sign of injury, nor to any complaint by the defendant. His uncle testified to nothing about signs of injury nor of complaint.

Defendant’s credibility on this aspect of his testimony, as well as on his denial of guilt and all his testimony, is very slight, if notice is taken that he was contradicted by the witness June as to his admission to her that he had shot Johnnie Malugen, was contradicted by his uncle as to his admission to him, he was contradicted by the testimony of his accomplice, Joe Slayton, and he was contradicted by the officials who testified, Sheriff Dennis, Chief Deputy Sheriff Michael and Chief of Police Bruce.

It should be obvious that the overwhelming weight of the evidence in this case established that the confessions, written and oral, were given freely and voluntarily. It is not necessary that a person approach a law officer and blurt out an unsolicited confession in order to make his admissions voluntary. When there is no substantial evidence of coercion or duress or of promises of leniency or reward, a confession must be deemed voluntary. Here it was a voluntary act on the part of defendant to admit his guilt after he had heard read to him the signed statement of his companion, Joe Slayton, apparently along the same lines as incriminating testimony at the trial.

Defendant was only 18 years of age at the time of his arrest in 1958. Must the solitary fact of his youth cause courts to blind themselves to the overwhelming weight of the evidence and to the complete lack of corroboration of defendant’s claim of coercion ?

The cases on which defendant relies as authority for holding that under the “totality of circumstances” his confession here should be ruled inadmissible are very different indeed from this case on their facts. Defendant cites Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895, and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. In the Davis case the prisoner was questioned repeatedly over a period of 16 days. There was no evidence that he was informed of his rights until after he had made an oral confession on the 16th day, and he had repeatedly denied guilt until the 16th day. He was a man of third or fourth grade education. A police officer testified that no one had ever been kept in the city jail so long as he. The arrest sheet of the police department contained the notice that no one was to be allowed to see him, nor was he to be allowed the use of a telephone. No one except police officers saw him during his 16-day ordeal. He was fed two sandwiches per day and lost 15 pounds. Not until the 13th day of the inquiry was he told of the charge on which he was later brought to trial. He was caused to walk 14 miles on a railroad right-of-way with the police in order to destroy his explanation of his possession of some personal items found at his home and was taken to the cemetery, scene of the murder. The Supreme Court of the United States ruled that the prolonged questioning of this man under the circumstances outlined in the opinion had exerted a substantial coercive effect upon him. His will had been eroded by the lines of interrogation that had been pursued. He had been isolated from all but police officers and his confession was held to be the involuntary end product of coercive influences, the product of a will overborne.

Fay v. Noia, supra, was principally concerned with the effect of a failure to appeal a state court conviction. Previous to the decision in the Noia case, the prisoner’s two companions had been freed in earlier cases because their convictions were based upon confessions obtained by third degree methods. It was repulsive to the court’s sense of justice that Noia should remain a prisoner after the release of his co-defendants. It was found that his failure to appeal was not the exercise of a free and intelligent choice and therefore in the federal habeas corpus proceeding, he obtained the same result as his co-defendants had obtained.

Another interesting case, not cited to us by defendant, is Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423, decided April 24, 1967. Here the Supreme Court of the United States reversed a conviction for murder of defendant’s wife, based upon three statements of defendant which had been received in evidence. The decision was based upon the State’s version of the facts, which in the view of the Supreme Court of the United States, considering the “totality of the circumstances,” were not voluntary and should have been excluded. Clewis was arrested on July 8, 1962, and gave a statement to the police on the afternoon of July 9. He was not taken before a magistrate until he had been in custody for 38 hours and had had very little sleep and very little food and appeared to be sick. He gave a second statement to the police on July 12, after frequent interrogation from a Monday evening to a Thursday afternoon. During this period he was driven on a round trip of 6,600 miles, was administered several polygraph tests, had very little to eat and little contact except with policemen. He still maintained his innocence to this time. On July 13 he was delivered to the custody of the county Sheriff. Interrogation was resumed on July 17. Defendant had seen no lawyer, nor had he been advised of his right to have one. On July 17 a written statement was prepared, which Clewis signed. Thus the alleged confession was made nine days after the time of the arrest. Interrogation proceeded for more than a week after arraignment. The court stated that it was concerned as to the extent to which Clewis’ faculties were impaired by inadequate sleep and food, sickness and long subjection to police custody, with little or no contact with anyone other than police.

In the instant case the defendant was permitted to make a telephone call to his mother from St. Louis police headquarters before he was taken to Benton, this being the second call he made after his arrest. He was adequately fed at all times. The confession came approximately three hours (or, at the longest, five hours) after he was brought to the Sheriff’s office in Benton, and it followed shortly after the disclosure of the statement made by his companion and accomplice.

We have examined numerous other “totality of circumstances” cases, including State v. Beasley, Mo., 404 S.W.2d 689; State v. Smith, Mo., 415 S.W.2d 748; State v. Walker, Mo., 416 S.W.2d 134; State v. Williams, Mo., 416 S.W.2d 956, and State v. Simone, Mo., 416 S.W.2d 96. The conclusion we have reached in this case is in harmony with the other decisions.

The courts of Missouri have long recognized that mental coercion can invalidate a confession. See State v. Williams, Mo., 369 S.W.2d 408, 418, and State v. Barnett, Mo., 338 S.W.2d 853. In the instant case the defendant did not testify to any mental coercion. The Barnett case, supra, stands for the proposition also that urging a prisoner to tell the truth and clear his conscience does not constitute mental coercion (loc. cit. 857).

The testimony of Sheriff Dennis that he warned defendant that he need not say anything and that anything he told could be used against him and that he could call his mother or an attorney if he so wished, as well as the testimony of Deputy Sheriff Michael that he heard the Sheriff advise defendant of his constitutional rights and that he could have the advice of counsel if he wanted it, were given at a trial held in June, 1958, long before the Miranda case was decided, and should not be discounted as a partial effort to satisfy the requirements of the Miranda case.

Under the total circumstances disclosed by the record in this case, it is our conclusion that the written confession of defendant and his later oral confession were voluntary and that the court did not err in receiving same into evidence.

The judgment of conviction is affirmed.

EAGER, P. J., and GREEN, Special Judge, concur.


author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. Raymond Carley PRUETT, Appellant.
    No. 52918.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1968.
    Motion for Rehearing or to Transfer to Court en Banc Denied March 11, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, F. Daley Abels, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    William J. Shaw, Clayton, Alan G. Kim-brell, St. Louis, for appellant.
   HIGGINS, Commissioner.

Appellant was convicted by a jury of robbery in the first degree. Section 560.120, V.A.M.S. Pursuant to the verdict and upon a finding of prior conviction, the court assessed appellant’s punishment at 20 years in the custody of the Department of Corrections and sentenced him accordingly. Sections 556.280 and 560.135, V.A.M.S.

Appellant does not question the sufficiency of the case against him and a brief statement will demonstrate that the state made a case from which a jury could find beyond a reasonable doubt that appellant was guilty of robbery in the first degree of K-V Pharmacal Company by putting Walter A. Schulze “in fear of an immediate injury to his person.”

Walter Schulze was an assistant supervisor and chemist for K-V Pharmacal Company in Brentwood, St. Louis County, Missouri. He was alone in the company’s locked building at 5:30 p.m., July 14, 1966, when he heard a knock or rattle at the front door. He went to the door and saw two men. When he opened the door one of the men pulled a gun and both men entered the building, ordering Mr. Schulze to lock the door and take them to the laboratory. When in the laboratory the men took amphetamine from various locations and dumped it into a wastepaper basket and a bag. After that, the men took Mr. Schulze to the plant section where five or six drums of amphetamine were pushed to the back door near which Mr. Schulze noted a white Buick Riviera. Mr. Schulze was subsequently told to lie on his stomach on the floor and his wrists were tied. While so tied, Officer George Grace of the Brent-wood Police Department entered the back door. He took one of the men, later identified as Douglas Jackson Tyra, into custody. The other fled upstairs and Mr. Schulze never again saw him in the building. Mr. Schulze later noted an open window upstairs.

Carolyn Schulze, Walter’s wife, also an employee of K-V, left work at about 4:30 p.m., July 14, 1966, to get their little girl and do some shopping. She returned to the plant to get her husband around 6:00 p.m. When she rattled the front door he came out and told her he would he out soon as instructed by the two men who held him captive. Mrs. Schulze returned to her car and in fifteen or twenty minutes Officer Grace came by and advised her she must have set off the burglary alarm again. He went to the front door and then to the rear of the building. Mrs. Schulze then went again to the front door at which time a man with a pistol in his hand jumped from a window, landing within five feet of her. The man threatened to shoot her if she came near as he backed away from her around the building.

Officer Grace went to K-V about 6:00 p.m. in response to an alarm. When he left Mrs. Schulze and went to the rear of the building he saw a man loading the drums of amphetamine into the back seat of the Buick Riviera. He ordered the man into the building and, upon entering the building, saw Mr. Schulze lying on the floor with a man standing over him. That man, upon seeing Officer Grace, fled to the front of the building.

Officer Harry Dunman of the Brentwood Police Department went to K-V about 6:35 p.m. and searched a field to the rear of the building. He saw a man running in a creek bed thirty to thirty-five yards in front of him.

Appellant was identified by Mr. Schulze as the man who held the gun on him upon entering the building. He also was identified by Mrs. Schulze as the man she saw leap from the window of the plant, by Officer Grace as the man he saw standing over Mr. Schulze in the lower level of the plant, and by Officer Dunman as the man he saw running away from the rear of the plant in the creek bed.

Sergeant Fred Owens of the St. Louis Police Department went to an address on Park Avenue July 17, 1966, when appellant was arrested. He stayed with a late model red Dodge automobile parked in a vacant lot east of the premises at which appellant was arrested. He stayed with the car as it was towed to police headquarters where its trunk was opened and two guns were removed. One of the guns, Exhibit 4, was identified by Mr. Schulze as being the same in type and appearance as the one held on him him by appellant. Exhibit 4 also was said by Mrs. Schulze to “look like” the one in appellant’s hand when he leaped from the building.

Appellant adduced evidence tending to confuse his identification as one of the robbers and to show him in a different place at the time the robbery was committed. Appellant also called Douglas Jackson Tyra who admitted he pleaded guilty to the robbery of the K-V Pharmacal Company and stated that his companion had been one Ray Sommers.

Appellant charges error in submitting Instruction No. 1 to the jury “for the reason that said instruction was the verdict directing instruction, purporting to cover the whole case, and entirely ignored the defense of alibi, said defense being fully supported by evidence in the case.”

There is no question that a verdict-directing instruction which purports to cover the whole case and ignores a defense supported by the evidence is erroneous and constitutes reversible error, State v. Winn, Mo., 324 S.W.2d 637, 640-641[1]; State v. Dougherty, 358 Mo. 734, 216 S.W.2d 467, 474[13]; State v. Drane, Mo., 416 S.W.2d 105, 107[1,2]; but that rule does not help this appellant because Instruction No. 1 did not ignore his defense of alibi.

The defense of alibi is that even if the offense was committed as charged, the accused, at the time of commission, was at another and different place than that where the offense was committed and therefore could not have been the person who committed the offense. Such defense was accorded this appellant by Instruction No. 3 to which no objection was made. Instruction 1 referred to such defense by requiring the jury to find the defendant present at the K-V robbery in that it required a finding that he committed the robbery of K-V by then and there putting K-V’s employee, Walter Schulze, in fear of immediate injury to his person. The jury would, of necessity, have to find him present in order to find that he committed such specified acts. This contention was answered in State v. Merrell, Mo., 263 S.W. 118, where the offense was murder and the defense alibi. The same error was assigned, i.e., that the verdict-directing instruction omitted reference to the alibi and compelled a finding of guilt if they did not believe the evidence of alibi. “In so far as failure to refer to the defense of alibi is concerned, no just criticism of the instruction can be made. The court gave a proper separate instruction on that subject. The criticized instruction required the jury to find that the defendants made an assault upon the deceased and shot and killed him. This necessarily required the jury to find that defendants were present at the killing, and negatived the idea that they were elsewhere.” 263 S.W. l.c. 123[12].

Appellant’s citations are to be distinguished in that they involved defenses in which presence of the accused to commit the offense was not necessarily a part of the offense as in this case, e.g., theft or unlawful use of an automobile where accused had an honest belief he held title to the automobile (State v. Drane, supra); murder where the defense was self-defense as opposed to alibi (State v. Winn, supra); leaving the scene of an accident where the defense was that defendant had complied with the law requiring the giving of his name and address, etc., under applicable law (State v. Dougherty, supra).

Appellant complains in his Points II and III of the giving of Instruction 3 on his defense of alibi and Instruction 4 directing the jury to disregard “the fact that he has been previously convicted of an offense similar to the one with which he is here charged.”

These points have not been preserved for review because the record shows that appellant objected to “each and every instruction * * * except Instructions 3 and 4,” and Instructions 3 and 4 are excepted from the general complaint about instructions in the motion for new trial. The appellant is thus in a position similar to that of the appellant in State v. Ellis, Mo., 159 S.W.2d 675, 676[4], where “* * * the motion for new trial levels no complaint against— indeed, does not mention — the instruction now assailed, much less set forth the grounds now asserted,” and the court refused to consider the assignment urged for review in appellant’s brief.

In so far as these assignments may be urged for review as plain error, suffice to say that Instruction 3 on alibi has been approved in many cases, e.g., State v. Giden, Mo., 369 S.W.2d 212, 215[7]; State v. Beishir, Mo., 332 S.W.2d 898, 903[5]; State v. Hillebrand, 285 Mo. 290, 225 S.W. 1006, 1007[2]; State v. Wilson, Mo., 248 S.W.2d 857, 860[10]; State v. Griffin, Mo., 336 S.W.2d 364, 368[9]; and since the only mention of appellant’s prior conviction for a similar offense was in his counsel’s opening statement, “The defendant’s evidence * * * will show that at this time (appellant’s arrest) Ray Pruett was on parole from the Missouri State Penitentiary from a sentence for armed robbery,” appellant, in failing to object to Instruction 4, must have felt that the caution therein was favorable to him.

Appellant charges error in overruling his pretrial motion to suppress evidence in permitting the two pistols and testimony concerning them in evidence on the ground the pistols were the product of an illegal search and seizure.

The evidence on appellant’s motion to suppress was taken and heard prior to trial.

Corporal Fred Owens of the Metropolitan St. Louis Police Department went to 1632 Park Avenue, St. Louis, around 7:15 p.m., July 17, 1966. He remained on the first floor of the premises while other officers went upstairs and later came down with appellant in their custody. At that time a red 1965 Dodge titled to Walter P. Pruett was in the lot behind the premises. Appellant was taken away but Corporal Owens stayed with the automobile and accompanied it when it was towed to police headquarters. In appellant’s presence Corporal Owens caused the trunk of the Dodge to be opened and searched, at which time the two guns in evidence, Exhibits 4 and 17, among other items, were taken from the car. At the time of appellant’s arrest, Corporal Owens “heard Mr. Pruett holler several times that that car wasn’t his, 1965 Dodge.”

Patrol Sergeant William R. McCormick of the Brentwood Police Department participated in the arrest of appellant. The arresting officers found appellant in a closet at 1632 Park Avenue, St. Louis, and placed him under arrest for parole violation and the K-V “armed robbery.” Sergeant McCormick had prior information from Tyra concerning the red 1965 Dodge as well as the white Buick Riviera. At the time of arrest he searched the inside of the Dodge “but then we had trouble with the trunk, * * * it was broken and we asked Pruett about this and he denied ownership of the car at that time.” He said, “To the best of my knowledge that he did not park the car there. The car was not his and he knew nothing of the car.”

As stated by appellant, “The question of ‘standing’ (to object to a search) is purely a factual question — i.e., the movant must have actually possessed a sufficient interest in the property searched to object,” and, upon the evidence adduced at the hearing, the motion to suppress was correctly ruled on the authority of State v. Watson, Mo., 386 S.W.2d 24, 28-29[2]: “Defendant disclaimed ownership of the automobile or any interest in it. He even denied any knowledge of the automobile or its presence at the curb and denied driving it there by stating that he had walked to the Foster apartment. Having disclaimed any interest in the automobile searched, he cannot now, for this additional reason, be heard to question the legality of the search or the resultant seizure. Nor can his disclaimer once made be recalled at his pleasure. State v. Cantrell, supra (310 S.W.2d 866); 79 C.J.S. Searches and Seizures § 60, page 816; State v. Pigg, 312 Mo. 212, 278 S.W. 1030, 1033[4].”

Appellant would brush this authority aside as dicta by argument that State v. Watson, supra, was ruled on a valid search as an incident to lawful arrest. Such a finding was made at 386 S.W.2d l.c. 28[1], but appellant still cannot escape the ruling as made “for this additional reason” in the quotation at 386, S.W.2d l.c. 28-29[2].

State v. Edmondson, Mo., 379 S.W.2d 486, and Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, cited by appellant, are not in point, because they ruled simply that searches of automobiles made at the police station, remote in time and place from the defendants’ arrests, were not valid searches made as an incident to lawful arrests. Both cases proceeded on the theory of a possessory interest in defendants in the automobiles searched, a circumstance absent in this case under appellant’s denial of interest, ownership and knowledge in and of the searched vehicle. There is no assertion by the state here as by the government in United States v. Dean, D.C.Mass., 50 F.2d 905, that the property searched was in possession of the defendant thereby negativing any entitlement to the benefit of defendant’s disclaimer; nor is this a case turning on illicit possession as in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. Appellant also refers to the holding that waiver of the constitutional right against self-incrimination must be a knowing intelligent waiver of a recognized right, Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, l.c. 707[3], but it is not demonstrated that such holding has been or should be expanded to cover appellant’s situation here.

Review required by Criminal Rules 28.02 and 28.08, V.A.M.R., shows that the information is in proper form and sufficient; defendant was accorded a jury trial upon his plea of not guilty; the verdict is proper and responsive; the punishment is within legal limits; the motion for new trial was considered; and allocation was granted.

Judgment affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Edward COURTNEY, Appellant.
    No. 52927.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.
    Norman H. Anderson, Atty. Gen., Deann Duff, Asst. Atty. Gen., Jefferson City, for respondent.
    J. Whitfield Moody, The Legal Aid and Defender, Society of Greater Kansas City, Kansas City, for appellant.
   DONNELLY, Judge.

Defendant, Edward Courtney, was convicted of first-degree robbery under § 560.-120 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of Jackson County, Missouri, and his punishment under the provisions of the Habitual Criminal Act, § 556.-280 RSMo 1959, V.A.M.S. (as amended Laws 1959, S.B. 117), was assessed at imprisonment in the custody of the State Department of Corrections for a term of fifteen years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court. We affirm.

Defendant does not question the sufficiency of the evidence. The robbery occurred August 9, 1966, near Hy’s Food Center in Jackson County, Missouri. The victim, Orville Donald Henderson, testified as follows:

“Q Mr. Henderson, please tell the jury in your own words just what happened? A Well, as I say, I was making a delivery at 2219 Indiana and I parked the truck and was in the back unloading, pitching meat to the rear, and all at once I looked around and this man was behind me with a four barreled Demnger pointed at me, and he asked me to give him my wallet, and I refused, and he hit me I think it was three times with his left hand, and I shoved him a little bit, and then he said, ‘Come on or I’ll shoot,’ and then I got scared and he reached around and took my wallet and rushed out the back door and ran.

“Q Mr. Henderson, are you able to recognize the man that came into the truck and pointed this four barreled pistol at you, as you have described? A Yes, sir.

“Q Do you see him in the courtroom now? A I do.

“Q Where is he? A Right there (indicating).

“Q Seated at the second chair at the counsel table?

“A Yes, ma’am — yes, sir.

“Q You are pointing at the defendant, Edward Courtney, is that correct ? A Yes, sir.

******

“Q What was in your wallet when Mr. Courtney took it, as you described it? A Well, there was three dollars — I think was three dollars plus all of my belongings, driver’s license, papers, pictures of my kids and — ”

* * * * * *

"Q Now, Mr. Henderson, what did you do immediately after Mr. Courtney got out of the truck? A Well, I got out of the truck myself.

“Q Then what happened to you? A And I watched him run across Indiana, up 22nd Street west, and then he stopped at a car, but he didn’t get in, he just kept running on up around the corner and then this car pulled out and left and I went back and called the police at Hy’s Super Market.”

It is evident that the evidence is ample to sustain the conviction.

The following occurred during closing argument of defendant’s counsel:

“Now, if this man is found guilty by you today, the minimum sentence that he can receive is five years—

“MR. DUBOC: (Interrupting) Wait a minute. Now, there is no evidence of any punishment in this case. It is entirely in the hands of the Court and I object to the argument for that reason.

“THE COURT: The objection is sustained.”

Defendant contends the trial court erred in sustaining the objection. He urges that the “jury had the right to know what the punishment was because it indicated the serious nature of the crime the defendant was charged with and they had a right to know of its serious nature.”

In 1959, the Habitual Criminal Act (§ 556.280 RSMo 1959), was amended to require that punishment be determined by the trial judge and not by the jury. State v. Watson, Mo.Sup., 400 S.W.2d 129, 133. The constitutionality of the 1959 enactment has been upheld by this Court. State v. Wolfe, Mo.Sup., 343 S.W.2d 10; State v. Morton, Mo.Sup., 338 S.W.2d 858. The Act requires that evidence “of the prior conviction, sentence and subsequent imprisonment or fine, parole, or probation shall be heard and determined by the trial judge, out of the hearing of the jury prior to the submission of the case to the jury, * * (Emphasis ours.)

It was the function of the trial judge to determine punishment. The argument of defendant’s counsel did not bear on an issue to be determined by the jury. The trial judge did not err in sustaining the objection. State v. Sims, Mo.Sup., 395 S.W.2d 445, 452; State v. Niehoff, Mo.Sup., 395 S.W.2d 174.

After the return of the verdict, the jury was discharged and the following proceedings were had in open court:

MR. WILSON: Do you want to wait until after you have ruled on the Motion for a New Trial to sentence — or do you want to do that—

“THE COURT: (Interrupting) Bring the prisoner forward right now. I am not sentencing him now. I am fixing the punishment.

“MR. WILSON: I understand, Judge.

“THE COURT: The sentence is fifteen years in the Department of Corrections, State of Missouri.

“MR. WILSON: May I say something or is it too late for that?

“THE COURT: No.

“MR. WILSON: I would like to point out to the Court that one of the objects in sentencing is to obtain some form of uniformity. Of course, the other day one of our more heinous criminals and robbers—

“THE COURT: (Interrupting) If there is a plea of guilty though, to save the State — that has no application to this. This was robbery with a gun and the defendant wanted to stand trial. He had a fair trial in my opinion. That is the sentence, or that is the punishment fixed at this time.

“How much time do you want to file your Motion for a New Trial?

“MR. WILSON: Just the normal ten days.”

Defendant contends this portion of the record shows that the trial court, in assessing punishment, penalized the defendant for standing trial. We do not agree. There is no ground for complaint that the punishment is excessive. It is within the limit imposed by law. Section 560.135, RSMo 1959, V.A.M.S. The point is without merit.

An examination of the record as required by Rule 28.02, V.A.M.R., discloses no error. The judgment is affirmed.

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Lonnie Ray WATSON, Appellant.
    No. 53150.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.

      Norman H. Anderson, Atty. Gen., J. Steve Weber, Asst. Atty. Gen., Jefferson City, for respondent.
    Robert G. Duncan, Pierce, Duncan, Beitl-ing & Shute, Kansas City, for appellant.
   BARRETT, Commissioner.

An information charged that on September 8, 1966, James Brewster, Jr., and Lonnie Ray Watson burglarized “the storeroom of C. J. LaCapra, located at 1417 East 55th Street * * * by bursting and breaking the front and back doors of said storeroom.” Lonnie was separately tried and a jury found him guilty and fixed his punishment at five years’ imprisonment. Upon this appeal the meritorious question is whether, viewing all the circumstances favorably to the state, they permit the finding of Lonnie’s guilt. Brewster was seen inside the burglarized building and was arrested as he came out the front door but neither he nor Lonnie testified and while perhaps not material here it does not appear what disposition was made of his case. Lonnie was not seen in the building and, admittedly, there is no evidence whatever that he actually took part in burglarizing the building. Lonnie was halted and arrested as he was “walking north across 55th Street.” When the police arrived on the scene a red Pontiac that had once belonged to Izóla Munion, Lonnie’s mother, was parked at the rear of the building but while the officers were arresting Brewster and Lonnie the automobile was driven away by someone unknown to the police. In his opening statement the prosecuting attorney said, “In short, what the State is going to do in this case is put the man who was found in the building, James Brewster, in the driver’s seat of that red Pontiac, prior to the commission of this burglary. Then, the State is going to prove that Lonnie Ray Watson was also in the driver’s seat of that mysterious car, that red Pontiac, which left the parking lot while all of this was going on in there. In other words, to prove our case, we are going to connect up Lonnie Ray Watson with that red Pontiac. We are going to connect up Brewster with that red Pontiac. And then we will ask you to infer from the evidence that if Brewster was caught inside, and if Watson (Lonnie) was caught over here (indicating), and if they were both connected with the red Pontiac, which was not there a few minutes after the crime was committed, that the two people acted together in the commission of this crime.” And, at the outset, it may be said, had there been any evidence from which these facts as outlined by the prosecutor, particularly the italicized quotations, could reasonably be found that the charge and the jury’s finding would be supported, but the problem is whether upon this record there is any such proof. In the following cases one or more of the noted factors together with other compelling circumstances, such as flight or some act of deception, were present, State v. Boothe, Mo., 364 S.W.2d 569; State v. Burton, Mo., 357 S.W.2d 927; State v. Brown, Mo., 291 S.W.2d 615.

Conjetta LaCapra owns the building at 1417 East 55th Street in which was her beauty shop, the Food Villa, a real estate office, a storage room and to the rear a parking area. On September 7th, at six o’clock, the doors, particularly the front door, were locked. At 2:25 a.m., on September 8, 1966, two patrol cars were dispatched to 55th Street and Paseo on a report that there were “prowlers on the inside.” Officer Donahue drove south on Paseo, turned west on 55th Street and immediately saw James Brewster inside the beauty shop. As Brewster came out the front door and started walking west Officer Donahue arrested him. Officer Bul-yar, in his patrol car turned off of 55th Street, drove south on Paseo and turned into the entrance to the parking lot at the rear of the building. As he turned he saw a red Pontiac, “not occupied at the time,” on the parking lot. From the headlights of his car he could see that the back door was open. He too saw “one shadow” inside the building and in a few seconds Donahue “stated he had one suspect under arrest.” As Bulyar again “went back out of the parking lot” he looked at the red Pontiac and noted its Missouri license, number ZZ4865. He says that he noted the license number because there were no other vehicles on the parking lot. As Donahue was searching Brewster he saw Lonnie “walk from the corner of this building (indicating on a plat), northbound across 55th Street.” When he was about “the center of the block” Donahue yelled to him “to halt.” At the same time Bulyar too saw Lonnie “walking up the middle of Paseo towards Officer Donahue’s car” and they arrested him. Brewster and Lonnie were searched, nothing incriminating was found on Lonnie, and Donahue took them to the police station.

Inspection of the building revealed that the front door had been forced open, there were pry marks on the door. There were also pry marks on the rear door and it was the opinion of an investigating detective that entry had been forced through the front door and that the rear door had been opened from the inside after an unsuccessful attempt to pry it open. The beauty shop had been ransacked, quite a number of pennies “strung all over the floor” and there was a hole in the partition wall, 20 by 30 inches, between the beauty shop and a storeroom into the Food Villa. No property was missing from any part of the building and no burglary tools were found and there were no fingerprints. And when Officer Bulyar returned to the rear of the building the red Pontiac was gone and it is not known who drove it away.

A Department of Revenue employee testified that title to the red Pontiac had been transferred to Izóla Munion, Lonnie’s mother, 3344 Askew and the license plate ZZ4865, had been transferred from a Rambler automobile to Izola’s 1965 Pontiac. (The defendant, from the records of the Bureau of Vital Statistics, established that Izóla died on July 10, 1966, two months before the burglary of LaCapra’s building.) To show Brewster’s connection with the red Pontiac a police officer testified that as a result of a collision on September 6, 1966, at 12th and Cherry, between his patrol car and the red Pontiac he gave Brewster two traffic tickets. But no one ever saw Lonnie in the red Pontiac, either on the morning of the burglary or at any other time.

At the time of his arrest Bulyar said that the first time he saw Lonnie he was “walking down approximately the center of 55th Street.” As indicated, Donahue said that as he was searching Brewster he saw Lonnie “walk from the corner of this building (indicating) northbound across 55th Street.” He said that when he called to him “to halt” he immediately stopped and walked toward the officer’s patrol car. Neither Officer Bulyar nor Officer Donahue saw Lonnie inside any of the buildings or in the automobile. The closest he was seen to the burglarized beauty shop was as he walked down the street toward Officer Donahue’s patrol car. It was sought to imply that Lonnie may have been waiting for a bus but it was established that there were no buses at that particular location at 2:25 a.m., on September 8, 1966. As to his conduct when halted Officer Donahue said that Lonnie was not running, he was just walking, the area was lighted and Lonnie was not attempting to hide and he did not have anything in his hands and no car keys were found on his person. And except for his proximity to the building and except as it may be inferred from Brewster’s driving a red Pontiac registered and licensed to his mother there is no proof that Lonnie and Brewster were together or even so much as acquainted.

Thus there is no proof that Lonnie furnished or drove the red Pontiac either to transport the burglar or burglars or as a getaway vehicle, and, of course, some unknown third person drove it away. No stolen property was found on either Brewster or Lonnie and consequently he may not be connected with the offense by reason of his recent possession of stolen property. In State v. Watson, Mo., 350 S.W.2d 763, it was held that the presence of the defendant as a passenger in an automobile in which there were stolen articles was not sufficient to support the inference and finding of burglary and theft. As indicated, there was no flight or deception on Lonnie’s part as to Brewster (State v. Rossini, Mo., 418 S.W.2d 1) and there is no proof that he did any overt act in the commission of the burglary and plainly in these circumstances there is no proof of a conspiracy or concerted action between Brewster and Lonnie. State v. Whitaker, Mo., 275 S.W.2d 322. In short, the circumstances here may create a strong suspicion of Lonnie’s connection with the burglary but in far more compelling circumstances it has been held that the evidence was not sufficient to support a conviction. State v. Rogers, Mo., 380 S.W.2d 398; State v. Watson, supra; State v. Whitaker, supra; State v. Tracy, 284 Mo. 619, 225 S.W. 1009; State v. DeWitt & Jones, 191 Mo. 51, 60, 90 S.W. 77, 80, and State v. Rutledge, 304 Mo. 32, 37, 262 S.W. 718, 720. “The fact that the defendant was seen going into the enclosure at the rear of the building is a circumstance that is entirely consistent with his innocence. If the defendant had fled or there had been other corroborating circumstances, as in the cases cited by the State, the conviction might be sustained. But mere suspicion, however grave, is not of itself sufficient to support a conviction.”

And “(s)ince the record indicates that the state has had an opportunity to develop its case fully, there is no need to remand the case for a new trial. * * * Accordingly the judgment is reversed and the defendant is discharged.” State v. Rogers, 380 S.W.2d l. c. 400; State v. Whitaker, supra; State v. Rutledge, supra; State v. DeWitt & Jones, supra.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Harold Ray JACKSON, Appellant.
    No. 52850.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Timothy D. O’Leary, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    J. Whitfield Moody, The Legal Aid and Defender, Society of Greater Kansas City, Kansas City, for appellant.
   BARRETT, Commissioner.

Mr. and Mrs. Charles Meredith conducted a building materials business at 3111 E. 17th Street. On June 10, 1966, shortly after one o’clock, Mrs. Meredith was in the outer office and Mr. Meredith and a Mr. Schwam were in his small inner office discussing a business matter. About 1:20 three Negro boys came in the office and asked for employment. Mrs. Meredith told them that theirs was a small organization and they had no jobs. The boys left but returned in about ten minutes and asked for “an application for employment to fill out.” Mr. Meredith, hearing this conversation, came out of his office, told the boys that they had no jobs and the boys left. Almost immediately Mr. Meredith and his business associate left for lunch and as they walked east on 17th Street Mr. Meredith looked back and again saw the three boys, this time walking toward the office. In the meantime Carl Taylor, a customer, came in and was standing with his back to the door. The three Negro boys again came in and one of them with “a gun to my head” grabbed Taylor by the arm, said “This is a hold-up,” and shoved him into Mr. Meredith’s office. A second boy (in the trial they were referred to as “No. 1, No. 2 and No. 3”) pointed a gun at Mrs. Meredith, told her it was a holdup, and ordered her to go into Mr. Meredith’s office. Instead of obeying, Mrs. Meredith defied the boy and told him she was going to call the police. When she reached for the telephone the boy came toward her and she threw the phone in his face, “he became frightened and ran” out the door. The third boy had gone to the safe and came out with the cashbox, grabbed Miss Mullane’s purse (Miss Mullane' was an employee) and “we struggled in the doorway.” This boy hit Mrs. Meredith in the head with the cashbox and left with approximately $400.00.

Harold Ray Jackson, age 17, was separately charged with the armed robbery of Mrs. Meredith. A jury found him guilty and fixed his punishment at five years’ imprisonment. Upon the trial of the cause and here Jackson has been represented by the Legal Aid and Defender Society of Kansas City. And upon this appeal appellant’s counsel have briefed and orally argued the single assignment that the trial court erred in not sustaining his motion for a new trial on the grounds of newly discovered evidence.

The assignment of error arose in these circumstances: Upon the trial of Jackson Mr. Meredith said that he got a good look at him, that “he did most of the talking” and he positively identified him as one of the three Negro boys who entered his place of business and asked for employment. Taylor, the customer, said that he got a good look at the boy who pointed the gun at him and with certainty he identified the appellant Jackson as that one. There were three Negro boys, Harold Ray Jackson, Charles Lacy and John Davis. Taylor did not identify all three boys, he only identified two. While Meredith was not asked whether he identified all three boys on cross-examination he described them; there was quite a difference in their heights, Lacy had “pocks on his face” and Davis was much lighter in color than the other two. Both of these witnesses denied that they “leaned on” Mrs. Meredith’s identification. And before their arrest on July 1 Mrs. Meredith gave the police a description of one of the three robbers and except as to age gave a fairly accurate description of Jackson. In any event, upon this trial Mrs. Meredith positively identified Jackson as “the man that held the gun on Mr. Taylor.” When asked whether she was “absolutely sure” she replied, “Positive” and finally she said, “No doubt in my mind whatever.” She said that the boy who held the gun on her (Davis) was the first to leave, that the appellant who held the gun on Taylor was the second one to leave and that the third one (Charles Lacy) with whom she struggled was the last to leave.

The appellant was tried on October 24th and 25th, 1966 and had until November 25, 1966, to file his motion for a new trial. On November 16th and 17th, 1966 Charles V. Lacy was tried and Mrs. Meredith identified him: “That is the man, without a doubt, that I struggled with.” On cross-examination Charles Lacy’s counsel — the same lawyer who defended Jackson — asked Mrs. Meredith if she had not identified Robert Lacy, Charles’ brother, as one of the robbers and she said that she had, thus identifying four people when in fact there were only three. And then counsel said, “and then you later changed your identification from Robert Lacy to Charles Lacy, is that correct?” But Mrs. Meredith replied: “No, sir, no, sir. Charles Lacy has never been a question in my mind.” And then she said, “but Robert Lacy is the same stature — the same build as one of the other men.” And then it developed that on one occasion she did “mistake Robert Lacy for Harold Ray Jackson” she said. “Q. After you had pointed out the brother of this defendant, Robert Lacy, to the police as participating in this robbery, what did you tell the police that Robert Lacy did? A. Held a customer at gun point.”

This is the newly discovered evidence upon which the appellant relies as entitling him to a new trial. It is urged that while Taylor identified the appellant as the one who held the gun on him, had appellant or his counsel known that Mrs. Meredith once mistakenly identified Robert Lacy, who admittedly had nothing to do with this robbery, the fact could and would have been developed. It is said. that the evidence is not merely impeaching (State v. Gish, Mo.App., 371 S.W.2d 654, 657-658; State v. Meller, Mo., 382 S.W.2d 671) or cumulative of his alibi (State v. Thomas, Mo., 82 S.W.2d 885) but “could raise doubt in the minds of the jury oj to whether or not Jackson participated in the robbery, particularly since the defendant Jackson and two other witnesses testified that he was at another place attending a party at the time of the robbery.” (Emphasis supplied.) It should be noted that in testifying in the Lacy case Mrs. Meredith does not admit that her testimony in the Jackson case was false or even mistaken in any respect (39 Am.Jur. Criminal Law, Sec. 169, p. 175), she only admits that on one occasion she mistakenly identified Robert Lacy as the appellant Jackson. She does not recant and so she was right and telling the truth when she made her in-court identification of Jackson as the one who held the gun on Taylor. It is not established that Mrs. Meredith gave false testimony in this case and even though on some unspecified occasion she was once mistaken in identifying Robert Lacy that fact established in Jackson’s case would not necessarily and in point of fact prove that she was wrong in her identification upon this trial.

These observations and inferences distinguish this case from the burglary and larceny case of State v. Jennings, 326 Mo. 1085, 34 S.W.2d 50. There Jennings’ drunken companions testified that it was he who threw a whiskey bottle through a glass door of a hardware store in Sturgeon and angered because the three of them could not find more whiskey “suggested that they take something for their trouble” and carried off guns, knives and flashlights. In that case there was a newly discovered witness, a young boy, 17, who left his girl’s home at 11:15 and passed the hardware store. He saw and recognized the two men standing on the walk in front of the store as Claud and Pete Powers (Jennings’ drinking companions), talking “in an undertone” and after he crossed the street “he heard * * * the breaking and tinkling of glass.” And, “(h)e had never mentioned these facts to anyone until after defendant’s trial, when he was heard to say at school that they had convicted the wrong man.” This newly discovered evidence was not only impeaching of Jennings’ erstwhile companions or merely cumulative of his defense, “taken in connection with all the evidence submitted, was credible and sufficient to raise a reasonable and substantial doubt in the minds of a jury, we think, resulting that a jury again should be permitted to pass upon the guilt of defendant.” In short, the school boy’s evidence had a tendency to show that the Powers boys and not Jennings broke into the hardware store. By the same token the case is unlike the un-communicated threats in an assault with intent to kill case which would show that the defendant may not have been the aggressor as well as “his animus towards the accused” (State v. Bailey, 94 Mo. 311, 315-316, 7 S.W. 425, 427) with the consequence that the newly discovered evidence may well have affected the result. So too, in State v. Speritus, 191 Mo. 24, 90 S.W. 459, the newly discovered evidence tended to show that the state’s chief witness may himself have stolen the wagon.

The newly discovered circumstance in this case does not show that any testimony or fact material to the cause was in point of fact not true as the newly discovered evidence as to the ownership of a knife in a circumstantial evidence case of murder had a “tendency to show that one of the main things relied on by the prosecution to fix guilt on the defendant, to-wit, that he was owner of the knife, was not true.” State v. Murray, 91 Mo. 95, 104, 3 S.W. 397, 400. Of course it was not only important, it was necessary to establish as a fact Jackson’s presence and participation in the robbery of the materials business at 3111 E. 17th Street and while in one sense her mistaken identity of another person on some occasion may have had some substantive or probative value, her identification did not stand alone. Even without her testimony there is other un-attacked evidence of his identity and presence and thus the new evidence is no more than impeaching of her testimony. In short, upon this record it may not be said that the trial court in denying a new trial on the ground of newly discovered evidence so abused its discretion that this court should grant the appellant a new trial. 39 Am.Jur. (New Trial) Sec. 157, p. 164; 24 C.J.S. Criminal Law § 1453, p. 172; State v. Green, Mo., 305 S.W.2d 863. For the indicated reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Harrison B. HOVIS and Annie L. Hovis, Appellants.
    No. 52723.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.
    Robert L. Hyder, State Highway Commission of Missouri, Jefferson City, Stan J. Murphy, State Highway Commission of Missouri, Sikeston, Raymond S. Roberts, Trial Atty., Farmington, for respondent.
    John W. Reid, II, J. B. Schnapp, Schnapp, Graham & Reid, Fredericktown, for appellants.
   BARRETT, Commissioner.

In this proceeding in condemnation a jury awarded the landowners, Mr. and Mrs. Harrison B. Hovis, $15,000.00 damages. Contrary to the provisions of CiviF Rule 78.01, V.A.M.R. (“Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted”), the trial court sustained the state’s motion for new trial without specifying any of the fourteen assignments of error set forth in its motion. Since “it shall never be presumed that the new trial was granted on any discretionary grounds” (Civil Rule 83.06(c)) and “the presumption shall be that the trial court erroneously granted the motion for new trial” (Civil Rule 83.06(b)) the state has assumed the burden of sustaining the court’s action. In recognition of the rules and its burden the state does “not raise any discretionary grounds” but asserts that the court erred as a matter of law in striking and later admitting for the jury’s consideration the testimony of its witness, expert appraiser Frank DeGear.

In brief these are the background circumstances: Mr. Hovis, age 78, owned a farm consisting of 487 acres near Frederick-town in Madison County. He moved onto the land as a tenant in 1916, purchased 211 acres of the tract in 1938 and the remaining 276 acres in 1945. In that year he built a six-room house with bath, furnace and basement. In relocating and rebuilding U. S. Route 67 as a limited access four-lane highway the state condemned 34.73 acres of the Hovis farm. The road was so constructed that 305 acres were, as one witness said, “severed from the other land,” leaving approximately 147 acres on the left side of the highway. Among other items considered by the witnesses was the fact that the highway necessitated the construction of 10,000 feet of fencing, a large ever-running spring was destroyed, the barn had to be moved and a new cattle chute had to be constructed. The landowners produced three expert witnesses, at least two of them residents of Madison County, who fixed the before and after válues and damages at $41,320.00, $24,170.00, $17,210.00; $43,200.00, $24,000.00, $19,250.-00, and $43,500.00, $26,050.00, and $17,450.00, respectively. Mr. Hovis fixed the values and damages at $45,000.00 before the taking and $25,000.00 after and his damages at $20,000.00. The state produced two expert witnesses, one from Sikeston and the other, Dub Crutcher, from Essex who fixed the values and damages at these sums —$22,685.00 before the taking, $17,635.00 after, damages $5,055.00, and $19,070.00, $13,217.00 and $5,823.00 respectively.

The state’s third witness was Mr. De-Gear, age 70, who fixed these values and losses to the Hovis farm, $25,045.00, $22,548.00 and $5,563.00. While he qualified as an appraiser he said, “I’ve been a lumberman and contractor outside of the seven years, I was a flour miller at that time, but my last 40 years has been in one spot. * * * As a contractor and a retail lumber man.” The land was condemned as of April 8, 1962, and the witnesses in testifying in December 1966, gave their opinion of values, of course, as of April 1962. It developed that Mr. DeGear had not been employed by the state until November 15, 1966, and did not make his appraisal until after that date, about ten days prior to the trial. On cross-examination landowners’ counsel observed that Mr. De-Gear had “testified from figures” and he asked to see them, state’s counsel objected as “work product” and a colloquy ensued and state’s counsel said, “He has a sort of a, it’s this kind of folder, he opened it up and looked at notes and things he has in here, yes, sir. Part of it’s work product and part of it’s work product for the State Highway Department giving him the various information he needs and things of that kind.” At this point the court ruled that landowners’ counsel could not have the folder. Then in further cross-examination as to Mr. DeGear’s personal knowledge of the type of building and improvements he said, “I have a list of them now. Q. Who gave you that list ? A. Nobody gave them to me, I acquired them.” And finally he said that he acquired “them” from “an appraiser that made an appraisal on it,” Silas Dees who did not testify. He insisted that he had personally checked the buildings and he knew they were the same from “a photograph of some of them.” And he got the photograph in “(a) kit that Silas had.” Counsel again asked to see the kit and state’s counsel again objected “it’s a work product of Silas Dees an appraiser of the State Highway Department.” Based on counsel’s statement landowners’ counsel objected that the kit was “hearsay” and he said, “this man is testifying from hearsay and I ask all of his testimony be stricken from the record and the jury advised to disregard it. It’s based on hearsay and wholly incompetent.” The court responded: “Sustained. Jury disregard this man’s testimony.” State’s counsel then again examined the witness and developed that he had a personal acquaintance with the Hovis property in 1962 and he requested the court ruling striking DeGear’s testimony be “withdrawn and that the jury be instructed that he is a competent witness under all the testimony.” The court said, “I’ll deny that. Call your next witness please.” The state had no other witnesses, the landowners called two witnesses in brief rebuttal and then the court of its own motion addressed the jury: “Ladies and gentlemen of the jury, we have reviewed a certain portion of the transcript, on account of a ruling, the Court made on a motion after reviewing the transcript we found the ruling, the Court made was incorrect. You are, at this time, instructed by the Court to consider the testimony of Mr. DeGear. He was a competent witness and he was qualified to give the testimony that he gave.” There was no response to this ruling by state’s counsel, the instructions were read and the trial proceeded.

Despite the court’s instruction to the jury the state insists that the court’s ruling was nevertheless erroneous and prejudicial as a matter of law and that the court’s final ruling did not cure the error. It is said that the court’s ruling was an erroneous application of the hearsay rule and “was based on the erroneous mistake of law.” The state cites no precisely applicable cases in support of its argument but relies on rules which it says by analogy should govern here. It is not necessary to distinguish these cases in detail, they are Jones v. Terminal R.R. Ass’n of St. Louis, Mo.App., 246 S.W.2d 356; Dorn v. St. Louis Public Service Co., Mo.App., 250 S.W.2d 859, and City of Gallatin ex rel. Dixon v. Murphy, Mo.App., 217 S.W.2d 400. The latter case was a suit on the official bond of a town marshal for shooting and killing the plaintiff’s husband in an attempt to arrest him. The plaintiff called the defendant marshal as a witness and established the basic circumstances of the killing. Then the plaintiff called a witness who testified that the marshal’s reputation for truth and veracity was bad. When asked about his personal feelings toward the defendant marshal the witness said, “Why he is all right only he ain’t honest, that’s all.” Then it developed that the witness’ unfavorable opinion grew out of the fact that many years before he had loaned the marshal $50.00 “To pay himself out of the Maysville jail” and had never been repaid. The next day the court instructed the jury “that you will entirely disregard and hold for naught the entire testimony of the witness Harrison Worrell, in so far as it pertains to the character or reputation of the defendant City Marshal.” The court denied defendant’s request for a mistrial. Upon appeal the court applied the rule that “(a) party cannot directly impeach his own witness even though he be the other party to the suit.” And the court concluded, “In a close case, such as the one with which we are dealing, the withdrawal of incompetent evidence, or the court’s instruction to the jury to disregard it, does not cure the error in admitting it in the first instance.”

The incident complained of here was not so manifestly inflammatory or “this infraction (was) so reprehensible and damaging as to require appellate interference.” Jones v. Terminal R.R. Ass’n of St. Louis, Mo.App., 246 S.W.2d l. c. 361. Aside from the problem of whether the court in fact ruled on the qualification of the witness, a discretionary matter, the witness was not conspicuously qualified and his evidence was but corroborative of the state’s other two witnesses. In any event it may not be said, to avoid the force and effect of Civil Rules 78.01 and 83.06, that as a matter of law the state is entitled to a new trial. In the circumstances here the applicable principle is that “(t)he exclusion of testimony when first offered is not erroneous where the record shows that it was later admitted,” particularly when there has been no manifest prejudice (5 Am.Jur.2d Appeal & Error, Sec. 806, p. 248) by the court’s ruling, Shelby County R-IV School District v. Herman, Mo., 392 S.W.2d 609, 616-617; State ex rel. State Highway Comm. v. Devenyns, Mo.App., 179 S.W.2d 740, 741, both condemnation cases.

In accordance with these views the order granting a new trial is reversed and the cause remanded with directions to reinstate the jury’s verdict and enter a judgment in favor of the landowners.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: BARRETT, Commissioner. PER CURIAM.

text:
    Karl J. WINDHORST, Respondent, v. Golden LAMBERT and Hester Lambert, Appellants.
    No. 52626.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.
    Marvin L. Dinger, Ironton, for plaintiff-respondent.
    Robert A. Mcllrath, Flat River, for appellants.
   BARRETT, Commissioner.

Upon the petition of the grantor the court has set aside a warranty deed and the grantees, husband and wife, have appealed. The essence of the appellants’ claim is that the court erred in finding that the transfer was not intended as an outright gift, that in fact the respondent was “an invidious Indian-giver, whose third-hand marital misgivings apparently initiated a desire to negate a gift, once freely given.” Assignments of error relating to the introduction of certain evidence and depositions or the rejection of certain evidence are now beside the point — in this court the cause is reviewed anew, (Civil Rule 73.01(d) V.A. M.R.) evidence improperly excluded and preserved will be considered and evidence improperly received will be rejected and finally, if respondent grantor made a case “the findings of the trial court, based on the credibility of the witnesses who testified before him, rejecting defendant’s explanation, must be given great weight and should not be set aside unless the proof adduced is palpably insufficient to sustain them or unless the evidence is overwhelmingly against them.” Basman v. Frank, Mo., 250 S.W.2d 989, 992; Butcher v. McClintock, Mo., 373 S.W.2d 917, 922. Among other matters the court “finds the issues generally for plaintiff,” that “plaintiff never intended that the property in question as an outright gift to defendants” and that “the deed was given to defendants by plaintiff in return for a home for the rest of his life and for his burial.; after which one-half the property was to go to sisters of plaintiff,” and finally the court found that after a short time “defendants refused to acknowledge and recognize the agreement and made claim that the deed was an outright gift to defendants from plaintiff.”

The respondent, Karl J. Windhorst, age 60, for many years was a “maintenance man” at Iron Mountain, a division of M. A. Hanna Company. In 1958 Karl and his wife purchased a house in Graniteville, five or six miles from Ironton, for $8850.00. They put in a storm cellar, aluminum doors and windows, an enclosed porch, two sheds and a heating system and by 1960 Karl valued the property at $18,000.00, others valued it at $15,000.00. On April 11, 1964, after a prolonged cancer illness, Karl’s wife of 35 years died and was buried on April 15. After his wife’s death there was a marked change in Karl’s working habits and his ability to get along with co-employees, he developed a number of personal problems, the personnel director said that he was “emotionally upset” and came to the office repeatedly with his problems. His doctor described his changed attitude and condition as “agitated” due to “a rather severe nervous reaction.” Among his problems was an intense fear and dislike of his stepchildren. One witness quoted him as saying, at his wife’s grave, “Mary, old girl, 1 buried you, now I am burying your kids with you.” And a stepson did call his doctor, “questioning me rather severely whether there was a possibility of Karl poisoning his wife.” The doctor said that Karl was “sane” but he was “very emotionally upset,” to the extent that in his opinion he “didn’t seem quite capable of handling his own affairs to me. I would be unable to state that he was not of sound mind, but he was of an agitated state and I am certain he was not really capable during that period of time immediately following his wife’s death.”

In any event, on the day of his wife’s funeral, April 15, 1964, Karl went to the home of Golden and Hester Lambert to live, and he remained there for three months, left when he was again married and returned for another stay of two months. While Golden and Hester were younger they were friends of the Windhorsts but not related, and Karl and Golden had worked together at Iron Mountain for twelve years. There is some question if not dispute as to the precise dates, but in a few days, Hester says that on May 27th, without prior discussion, Karl came in about 9 o’clock and “just gave the deed to Golden” and, he simply said, “Here, I am giving you this property. * * All it is going to cost you is to get the deed recorded. * * * I don’t want her children to have a G. D. thing that we ever had.” The Lamberts both denied that there was any kind of an agreement to support, there was not even any discussion of the subject, according to them. The deed recited a consideration of $10.00 and “other good and valuable considerations” but the Lamberts did not pay the $10.00, or the fee to record the deed and they deny that there was any “other” consideration.

Karl’s version was that “they agreed to look after me and bury me and see that I was clothed and fed. In other words, take care of me, you know, that nothing would happen to me. * * * They said they would take care of me as long as I lived and see that nothing would happen to me and I would be buried and that.” At another point in the trial he said, “they asked me to come out there and they would take care of me, that I wouldn’t want for nothing that I was all set and I made the will in Golden’s favor, after I was dead they would see everything was cleared off and give my two sisters up in St. Louis half.” Karl says that pursuant to this agreement he had a will drawn (that Golden has) and executed and delivered to the appellants a deed to his house as well as title to his cemetery lot. And he says, for about three months, “They made my meals, she washed my clothes and that, was very good friends to me.” Within three months Karl made an unfortunate marriage and when that ended he returned to the Lamberts because “I didn’t have no place else to go.” Except for a small sum of cash, some furniture and a $450.00 equity in another house, Karl had no property other than the house involved in this litigation. Finally, Karl says “the only thing is I couldn’t stay there because she was always nagging at me. * * She shook her finger in front of my nose and said I wouldn’t get one penny.” And finally, he said, “She just got nasty. * * * She didn’t tell me to leave but she made it so damned hot for me that I had to.” In September the Lamberts declined Karl’s offer to pay for any services they may have rendered but they refused to return his property and in December left their home and moved into the Windhorst house.

In these briefly noted circumstances it is not necesssary to analyze specific testimony, draw inferences or characterize conduct. As indicated, the appellants claim a gift, they deny that there was any agreement to support and care for and in this posture Karl’s version, corroborated in some respects by other witnesses, if accepted stands alone (Finley v. Williams, 325 Mo. 688, 29 S.W.2d 103) and it is not as if Karl had abandoned or prevented performance of the contract, under his version the appellants are in default denying that they ever made a contract to care for him for the remainder of his life. Admittedly, claiming a gift, there was no consideration for the conveyance, the parties were not related, there was no performance of a filial duty and Karl had no other valuable property, he was distraught or “agitated” and it is not necessary to indicate all the factors requisite to the setting aside of a deed or to point out other inequitable incidents, at best the appellants’ case involves and depends on credibility and this court could not with confidence make a contrary and different finding to the supported finding the court made. The proof and the court’s finding are well within the factual situations and rules of the following cases: Mentzer v. Mentzer, 325 Mo. 941, 30 S.W.2d 146; Cook v. Branine, 341 Mo. 273, 107 S.W.2d 28; Hood v. Throop, Mo., 280 S.W.2d 106; Colquitt v. Lowe, Mo., 184 S.W.2d 420; Meyer v. Schaub, 364 Mo. 711, 266 S.W.2d 620; Frey v. Onstott, 357 Mo. 721, 210 S.W.2d 87. Accordingly the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.