author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Lola Lorene PERKINS, Appellant.
    No. 49985.
    Supreme Court of Missouri, Division No. 2.
    June 8, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied July 13, 1964.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Theodore C. Beckett, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Emanuel Williams, St. Louis, for appellant.
   BARRETT, Commissioner.

Lola Lorene Perkins and her husband, the Reverend Matthew Perkins, were charged under the second section of the rather new and simplified “stealing” statute; “It shall he unlawful for any person to intentionally steal the property of another, either without his consent or 'by means of deceit.” RSMo 1959, § 560.156, V.A.M.S. While the prosecuting witness, Robert N. Amacker, and his Hollybrook Land Company claim to have been bilked of the total sum of $267,-800.82, the information charges that Lola and her husband directly and deceitfully stole the sum of $79,661. Upon her separate trial Lola has been found guilty and sentenced to seven years’ imprisonment.

One of the assignments in the motion for a new trial (there was also a motion to dismiss the information) is that the particular subsection of the statute, § 560.-156 (sub. 2), under which she was convicted is unconstitutional in that it is “Vague, indefinite and uncertain, fails to set forth a standard of acts, conduct or deeds which would constitute an offense and fails to define such conduct or offense or set forth under what circumstances any such acts, conduct or deeds would constitute an offense, fails to define the term Deceit and leaves the question of the commission of any offense under said section to be legislated and determined by * * * the courts.” While the legislature must inform the citizen with some degree of specificity just what acts are prohibited, thus affording “an understandable rule of conduct,” the definition and punishment of crime in general is a legislative function upon which the courts may not encroach. 14 Am.Jur. Criminal Law § 19, p. 773; 16 C.J.S. Constitutional Law § 151(6), p. 769. It is not necessary here to examine into the history and purpose of the statute in detail, that was done in State v. Zammar, Mo., 305 S.W.2d 441, two years after the passage of the act. The appellant singles out of context the one subdivision relating to stealing by deceit. But as was pointed out in State v. Zammar, eight or nine states had then adopted similar statutes, the purpose of the enactment was to eliminate the technical and confusing distinctions between larceny, embezzlement and obtaining money or property by false pretenses. The statute as a whole attempts to deal with all forms of “stealing” including false pretenses and as the title to the act states, in repealing more than fifty statutes, relates to “offenses against property.” Laws Mo. 1955, p. 507. But the substantive offense is stealing, not deceit (which is the means by which a theft is accomplished and need not be defined in the act). The statute does not broaden the crime of larceny or “designate as criminal that which was previously innocent” (State v. Gale, Mo., 322 S.W.2d 852), but as a consideration of the information and record will plainly illustrate “to intentionally steal the property of another * * * by means of deceit” is a species of the ancient and well known offense of obtaining money or property by false pretenses (RSMo 1949, § 561.370, V.A.M.S.) and the legislature has not violated any principle of constitutional law in enacting this same offense in a modern, simplified form.

As further background and insofar as material to six other assignments of error, the information charges that Lola “in the City of St. Louis, between June 20, 1959 and the 5th day of February 1961, did unlawfully, feloniously and intentionally steal, take and carry away” $79,661.00, the property of Hollybrook Land Company in the care and custody of Robert N. Amacker, “by means of certain false pretenses, representations and deceit, to wit” that Lola falsely represented to Amacker that she “was the executrix under the will of one Magnolia J. Ward (Pittman) deceased; that there was certain real and personal property which were assets in the estate * * * that the value of the assets in said estate was greatly in excess of the amount of the monies of the Hollybrook Land Company * * * so obtained as aforesaid from Robert Amacker, and that the advancement of said monies by the said Robert Amacker to said Lola Lorene Perkins * * * would enable her to close and settle the aforesaid estate, and' that she would then so close and settle said estate and would, out of the assets of said estate” repay the sums advanced by Amacker, that said representations and pretenses were known to Lola to be false and untrue and were relied on by Amacker with the result that Lola got and stole $79,661.

It will be observed that the first quotation from the information in classic language charged the former offense of grand larceny (RSMo 1949, § 560.155, V.A. M.S.), while, as indicated, the longer quotation in time honored form charged the offense of obtaining money by false pretenses, RSMo 1949, § 561.370, V.A.M.S. Added to the information is other language from the revised statute (§ 560.156 (sub. 2)), such as “deceit,” indicating plainly that the charge is under the statute and includes stealing by deceit. It is not necessary to consider the claims of error in detail, it is sufficient to say that the information meets the challenge of vagueness, indefiniteness and due process even though the theft by deceit was alleged to have occurred over a period of more than a year and a half, “between June 20, 1959 and the 5th day of February 1961.” Sup.Ct.Rule 24.11(5) (6), V.A.M.R. It was not necessary to negative the existence of the estate of Magnolia J. Ward (V.A.M.S. § 545.030) and the quotations refute the assertion that the information “on its face indicates that the prosecution is predicated upon the failure of the defendant to pay a debt.” It is neither necessary nor desirable that informations under the revised statute be reduced to a rigid formula; it is sufficient to say that this information plainly describes an offense defined in the statute and, as will appear from a recital of the facts, concisely covers the conduct relied on as constituting a theft by deceit. Therefore the court did not err in denying the defendant’s motion for a bill of particulars. While particular informations have not been specifically approved, cases supporting the validity of this information under the revised statute are State v. Samis, 296 Mo. 471, 246 S.W. 956; State v. Mandell, 353 Mo. 502, 183 S.W.2d 59 and State v. Fenner, Mo., 358 S.W.2d 867.

The prosecuting witness is Robert N. Am-acker, 63, a lifelong resident of Lake Providence, Louisiana. Modestly Mr. Amacker calls himself a farmer, he is in fact a Louisiana planter and has an annual personal income of $30,000. He is also interested in an insurance company, a grain elevator, a cotton gin and other enterprises and has had thirty-six years’ experience loaning money. He graduated from high school, attended the University of Arkansas one year and Soule Business College six months. Holly-brook Land Company is an Amacker family-owned corporation and owns 9300 acres •of land on the Mississippi River upon which it “grows” cotton, rice, soybeans, wheat, ■oats and corn, and sometimes the corporation loans money. Mr. Amacker is treasurer of the corporation and had almost unlimited authority in the handling of its money. He had known the appellant, Lola Perkins, since 1927 when she lived in the vicinity of Lake Providence and had “a day squad” and hoed and picked cotton for other planters. Even in those days, 1927 to 1935, when he knew she had but little if any property, Mr. Amacker made Lola several loans of $500 to $1500 which she repaid with interest. He had also known Lola’s mother, Amelia Lewis (later known as Drucilla Green), and he had a recollection of Magnolia Ward but it was “more of a name.” After 1935 these people passed out of Mr. Amacker’s life for almost twenty-five years, reappearing in 1959.

The appellant, Lola Lorene Perkins, was the founder and Supreme Ruler of the United Rock of Charity, a charitable organization (said to have a charter from the State of Missouri) engaged in raising money for churches and “to help the needy.” A large part of the Amackers’ $267,800.82 passed through this charitable corporate organization. There were a large number of officers, sometimes as many as 22, “Honorable Daughter” the equivalent of a vice-president, “Finance Captain” and “assistant deputy finance captain,” the latter had the duty of “(h)andling a little of the property and part of these automobiles” and sometimes “I was appraiser on some of it.” One witness did remember an instance in which at Lola’s direction funds of $420 from the United Rock kept a needy widow from “being set out of doors.” Then two or three officers in the organization remembered that funds were advanced to churches, the Sun-' ny Mount Missionary Baptist Church in St. Louis and the Harris Temple south of Little Rock. By a down payment of $2,500 a $100,000 farm was purchased in Arkansas and down payments were made on numerous pieces of property in St. Louis and Little Rock. It turned out that a select group of officers in United Rock, including Lola, lived in the St. Louis properties rent free. At least five automobiles, Cadillacs and Chrysler Imperials, were purchased on credit plans and Lola and her retinue used them “to go back and forward to Little Rock and render programs there and here.” To close out the Little Rock “chapter” and eventually the Magnolia Ward will the charity engaged the famous singer of spirituals, Ma-halia Jackson, and in the end that performance cost Mr. Amacker an additional $11,-900.

This is a very brief but necessary background to the essential facts upon which Mr. Amacker claims to have relied and the circumstances in which he advanced from his personal funds and the funds of the land company $267,800.82 from which Lola is alleged to have stolen $79,661.00. It is neither possible nor necessary to attempt even a résumé of the testimony, there are three volumes of record, twenty-three witnesses — all of them state’s witnesses — and the circumstances are intricate and bizarre beyond description. Lola did not testify and may not have been able to call any witnesses because when exposure came all her friends and associates deserted her and the Rock of Charity and testified for the state. And if .any of them had handled or received any •of the Amacker money they claimed that they immediately turned it over to Lola, to the United Rock of Charity or spent it as directed by her. Merely to illustrate by a single interpolation: Lucille Wilson, who was intimately connected with Lola and the Rock of Charity throughout the years and who typed, witnessed or notarized many of the documents, went to the Boatmen’s Bank on three occasions with Mr. Amacker when he procured cashier’s checks payable to Lucille in the sums of $10,350.00, $17,560.00 and $10,000.00. Lola was waiting outside the bank and they immediately went to the Manchester Bank where cashier’s checks in smaller denominations were issued for the $10,350 and $17,560 items and these were delivered to Lola. When Lucille got the $10,000 check she intended to give it to Mr. Glass (who sold, financed and repossessed the automobiles) “but there was some conflict between Mr. Glass and Mrs. Perkins and at that time it had not been straightened •out” and so she gave that check to Lola. But as indicated, it is not possible to reduce this record and its 44 assignments of error to a reasonable, sensible statement of facts and it will have to suffice to say that Amos and Andy and all the characters of Octavus Roy Cohen in their finest hours never •dreamed of so fantastic a scheme to entrap the unwary and the greedy. And never before were experienced bankers, lawyers, planters and money lenders so completely and successfully gulled by such outlandish characters armed with such preposterous documents.

No one in the probate court remembers who brought the document in but a deputy clerk with 28 years’ experience testified that the will of Magnolia J. Ward was filed for probate on October 17, 1958. There were three witnesses to the will, Mildred Aldridge, Ollie Love and E. J. Lewis. The clerk, however, took the solemn oath of Mildred Aldridge that she witnessed the will and saw Magnolia Ward sign and execute it. The clerk then took the affidavit of Lucille Wilson that she had prepared the instrument at the direction and request of Magnolia and that she had witnessed its execution. Upon this proof and her application letters testamentary, without bond, were issued to Lola. The fact was that Magnolia Ward died in 1953 and the instrument purporting to be her will was written in longhand by Lola, typed by Lucille in the office of a lawyer where she was a secretary, and the testatrix’ signature forged by Lola in 1958. Mildred Aldridge personally signed the document as a witness, as did E. J. Lewis, according to Mildred, but Ollie Love called Lucille on the telephone and said that she was unable to get to the office and asked Lucille to sign her name for her, which she did. Subsequently Ollie denied that she had authorized Lucille to sign her name as a witness. This instrument, purporting to be the will of Magnolia Ward, is a lengthy document, and after the introduction, because they are “major devisees,” contains a biography of Matthew and Lola Pittman. The will certifies that even before her death Magnolia nominated Lola “as my Attorney in Fact, with full power and authority to act” with reference to properties in Louisiana. There are numerous restrictions against Lola’s pledging property or “dealing with real estate agents.” There are provisions for selling various and sundry pieces of land and giving specified people the proceeds. There are numerous specific bequests of $500 each, “but they must have a $100 of their own to receive it.” There are provisions for purchasing homes for numerous people, “costing not over $14,000, including building in the city where Lola P. Pittman and Matthew P. Pittman resides, as of now, St. Louis, Missouri. Homes for lifetime only.” There are numerous complicated directions as to mortgages of property and finally the restriction that “No assignments or mortgages on properties belonging to said estate shall be given unless Lola P. Pittman has bought in said properties under the will for $375,000.00 and put said $375. in trust to comply with the orders underj my will.” However, Lola was to have final authority in purchasing property and $30,000 was to “come from the estate for down payment of homes to be purchased for relatives by Lola P. Pittman.” Furthermore, “Lola P. Pittman is to have 20% of the entire estate. Ten per cent of said amount to be furnished by a portion of the funds given to Matthew P. Perkins under my will” and “(s)he is to receive $75,000 for her work.” Then there is a long provision that “Lola P. Pittman shall set up a National Organization, if possible, that shall be beneficial to the races, and get a charter for the same.” In connection with the provision for the national organization there is a requirement that churches, recreation centers and rest homes be built in St. Louis, Little Rock and Lake Providence. Lola was to have five years after Magnolia’s death before filing the will, “the will is to be filed for her record sake.” There were numerous other directions, bequests and devises but “(a)fter Lola P. Pittman has fulfilled all obligations in the contract between her and me will held by the trustees known to her she is to place in the bank to her account with the witnesses as trustees the balance of the funds from the estate with the bank as her agent to finish the hospital, rest home, orphan horns (sic) recreation center, etc.” In connection with the will and its execution, there were inventories and supplemental inventories all duly authenticated by witnesses and acknowledged by Lucille as a notary public. These inventories and appraisals showed real estate in Magnolia’s estate of the total value of $75,000, $82,000 and $99,000. Inventoried as real estate were the apartments in which Lola and other members of the United Rock of Charity were living rent free, all of which were eventually foreclosed under second deeds of trust. But, not only was Magnolia dead when the will was executed and not only were the will and the inventories a forgery and false in almost every detail, when Magnolia died in’ 1953 she was so poor that her friends took up a collection for her burial.

At the same time Lucille typed the will and in connection with it she also typed the “contract” of December 6, 1951, signed or witnessed by Magnolia, Lola, Mildred Ald-ridge and E. J. Lewis. This document was to be presented to the court “if necessary, but is not to- become a public record” and Lola was admonished “to avoid all possibilities of trickery, or liens or claims against the estate or the money on deposit for the estate.” Again, in this document, there are elaborate provisions for building churches, buying homes and operating a national organization and the clauses most frequently referred to by Robert Amacker: “The Trustees shall remain unknown until the day of settlement and the name of the bank where the Trustees have the funds on deposit shall remain unknown to anyone,” a violation of this and other secrecy provisions enjoined upon Lola constituted a breach of the will and contract.

There were numerous other documents, affidavits, testimonials and declarations, all presented at one time or another to Mr. Amacker and some of them signed or witnessed by him, all of them hinting at or mentioning large sums of money, as the certificate of Drucilla Green (Lola’s mother) that “the funds held by me to date is in the amount of $425,000.00,” and in April 1959, Lucille’s statement to Mr. Amacker that “(e)ach trustee has $100,000.00 to be turned over to Lola Perkins, after she has complied with the terms of the will.” There was Lola’s discussion with an official of the St. Louis Union Trust Company about a “living trust” of $400,000.00 and finally Lola’s coy hint to Mr. Amacker’s lawyer-banker, from Arkansas, when in 1960 she was trying for an additional $67,-000, that “there was over $800,000.00 held in a bank, cash money available when this was completed, that could be used to pay off all of these debts,” but “the claim was always made that if she revealed that (the whereabouts of these vast sums of money) to us, she would forfeit her rights under this will. It had to be kept secret from anybody but her or the trustees in this thing.” As stated, there were all these other documents and requests for funds to comply with the will, the contract or to meet the obligations of the United Rock of Charity, but Mr. Amacker’s principal reliance was on the will and the contract.

In February 1959 Lola and her mother appeared in Lake Providence and asked Mr. Amacker for a loan of $500 in connection with a church in Arkansas. It was then that she casually informed Mr. Amacker that she was executor of the will of Magnolia Ward and “(t)hat it was a grant, she called it a grantee will” but there were certain performances to be done before she could close the will out. Between that date, February 12, 1959, and March 1, Mr. Amacker loaned Lola $2,436 for which he took a mortgage on Lola’s mother’s home. Thereafter, after communications from Lucille, Lola and others requesting loans or advances to the United Rock of Charity or to comply with the will and contract, as on June 15, 1959, $16,771.00 “conforming to the will” and to complete Harris Temple, Mr. Amacker finally supplied the total sum indicated. Repeatedly, he said, this time after a three months’ stay in St. Louis, “and during that time I gave her considerably more money, all on the proposition that she was organizing the United Rock of Charity, and she was carrying out the provisions of the will and the contract.” Finally, even Mrs. Amacker, in Robert’s absence, borrowed $2,000 from her father, in response to a telephone call, and sent that to Lola. Mr. Amacker and his associates made inquiries and investigations, other than exhaustively investigating the probate court proceedings, but they were all unable to “find the money.” Nevertheless, said Robert, “I believed she was telling me the truth, and I believed as she told me time and again that if such an investigation was made, it would violate the provisions of the contract and will, and that these statements could not be revealed until such a time as the day of settlement.”

It is not necessary to trace the history and disposition of each or even most of the innumerable advances by Amacker, Lola is charged between the dates of June 20, 1959, and February 5, 1961, with stealing $79,661. An official of the Manchester Bank identified two series of cancelled cashier’s checks, May 23 and May 31, 1960, totaling $27,610, payable to Lola. A St. Louis Western Union employee identified nine separate telegraphic orders of cash to Lola from Mr. Amacker totaling $11,390. These two items, directly traced to Lola, total $39,000,

Without pointing to specific facts and circumstances and indicating permissible inferences, this very brief résumé of the evidence warrants and supports the jury’s finding of Lola’s guilt of the offense of stealing by deceit. State v. Samis, 296 Mo. 471, 246 S.W. 956; State v. Mandell, 353 Mo. 502, 183 S.W.2d 59; 2 Wharton, Criminal Law & Procedure, Sec. 595, pp. 342-343. This is not a case in which the state sought to show that Lola had victimized third parties, (Annotations 80 A.L.R. 1306, 78 A.L.R.2d 1359) all the transactions and all the testimony was concerned with advances from Mr. Amacker to Lola, and insofar as the testimony dealt with her separate transactions with him, and insofar as any instructions dealt with this subject, the jury could properly consider the circumstances as indicating Lola’s felonious intent. State v. Mandell, supra; 22 Am.Jur. (False Pretenses) Sec. 109, p. 506. Again without pointing to specific testimony, it is indeed a fair inference from the record that a large number of the state’s witnesses, Lola’s former friends and associates in her good works, were privy to and a part of her evergrowing scheme and “that by concert of action they had engaged in that fraudulent scheme together” (State v. Samis, 296 Mo. 1. c. 486, 246 S.W. 1. c. 960) and, therefore, of course the participation and conduct of all the parties in the pursuit and execution of their joint mission, in Arkansas and Louisiana, as well as Missouri, was admissible against Lola. The fact that the prosecuting witness was credulous and even acted against the advice of friends and counsel is no defense and it was not error to refuse the appellant’s instruction requiring Mr. Amacker to exercise ordinary care and to make a timely investigation. State v. Mandell, supra; State v. Keyes, 196 Mo. 136, 93 S.W. 801, 6 L.R.A.,N.S., 369.

There were eleven other assignments in the appellant’s motion for a new trial directed to the giving and refusal of instructions. However, the principal instruction followed the charge as set forth in the information and in essence hypothesized the evidence as it has been detailed. The instruction appears to have been patterned after the instructions set forth in State v. Keyes and State v. Mandell, supra, and is not prejudicially erroneous for any of the reasons urged in the motion for a new trial. “The failure of the State to prove and the instruction to require the jury to find the falsity of each and every pretense alleged in the information was not fatal to the prosecution so long as the proof established and the instruction required the jury to find one or more of the false pretenses alleged.” State v. Montgomery, Mo., 116 S.W.2d 72, 74.

The truly perplexing problem upon this appeal involves the court’s action in “reproving,” as the state calls it, defendant’s trial counsel and finally in finding him guilty of contempt of court. The problem arose in the very lengthy cross-examination of Mr. Amacker, he had been explaining why he had not investigated the probate court records or consulted lawyers (relying on Lola’s admonitions for the necessity of secrecy) and implied that on a trip to St. Louis defendant’s counsel and others had not been too cooperative in supplying helpful information. To refresh Mr. Amacker’s memory counsel produced a letter from another lawyer who wrote Amacker on behalf of Lola whereupon, in the presence of the jury, there was a colloquy between the court, state’s counsel and defense counsel as to whether the state’s attorney was entitled to have the document and finally introduced the whole of it in evidence. Defense counsel was objecting and refused to hand over the letter, the court ordered him “to pass the exhibit to Mr. Bantle” and in the course of further objecting counsel said, “I object to the remarks of the court, and ask for a mistrial on the account of the bias and prejudice on account of this court.” Whereupon the court said, “Don’t make that kind of remark, or you better withdraw that, Mr. Weinberger” and when counsel attempted to make further objections the court warned counsel to “reflect upon what you said. I want you to calm yourself down, and see if you want that remark to stand in this record, in the presence of this jury.” A lengthy colloquy and obj ection ensued and then the record recites: “The following proceeding took place at the bench without the hearing of the jury: The Court: And I judge Mr. Weinberg-er in contempt of court for the remark he made, and failure to comply with the order of the court, and I will make the ruling thereon subsequently and not in the presence of the jury at this time.” It does not appear what disposition the court finally made of the contempt adjudication, the colloquy continued, the court obtained a case supposedly supporting its action as to the use of the letter and then he cautioned the jury at some length, “and I give you this admonition. I caution you gentlemen, and I charge you as a jury that you don’t base your verdict upon nor try the attorney for the defendant. Only the defendant is the person that is on trial here now.” The court cautioned the jury against basing a verdict on anything he said and likewise on anything counsel said and concluded, “I deny the remarks that he made. You gentlemen have been here. There are twelve of you. You have seen everything that I have done or said during this trial. You may resume, gentlemen, and I let the order that I previously made stand.” Defense counsel produced the letter, the state’s attorney had it identified and over objection read it to the jury. The trial was then near its end, there was but one other witness, and there were no further clashes between court and counsel.

It is not necessary to consider whether, the letter having been used for the avowed purpose of refreshing the witnesses’ memory, it was as a matter of right subject to inspection and use by opposing counsel. There is an annotation of over 130 pages on the subject in 82 A.L.R.2d 473. The letter, written in April 1959, addressed to Mr. Amacker, stated that it was “being written at the request of” Lola who was "“consulting with me at this time in my office.” The letter was a plea to Mr. Amacker for “a few more days’ delay” so that she could “comply strictly and absolutely to the terms of the will.” As previously indicated, regardless of the original purpose counsel had in producing the letter, since it was from Lola to Amacker and was directly concerned with this transaction, it was admissible in evidence. And it is not proposed here to adopt the expedient of “scoring” the court’s deportment (62 A.L.R.2d 166, 172), or to borrow a favorite phrase of the court’s to “scold” the court. It is sufficient to say that throughout the trial the court was unduly sensitive, even tetchy concerning the dignity of the forum, and it is not understandable why the court “reproved” or permitted any of its disciplining of counsel to occur in the presence of the jury thereby risking “the effect it might have on the rights of the parties with the jury.” State v. Hudson, 358 Mo. 424, 215 S.W.2d 441, 443, italics supplied. It is not proposed, furthermore, to enter upon a full scale consideration of all the factors entering into the general rules, “(e)ach case is considered on its own facts and decided by general principles rather than by specific rules.” Annotation 62 A.L.R.2d 1. c. 183 (This one hundred page annotation fully covers the subject: “Remarks or acts of trial judge criticizing, rebuking, or punishing defense counsel in criminal case, as requiring new trial or reversal.”) The episode is not comparable to the manifestly prejudicial conduct in State v. Davis, 284 Mo. 695, 225 S.W. 707 or “the humiliating and shameful situation” in State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654. The episode here and the case more closely resemble the actions in State v. Rack, Mo., 318 S.W.2d 211, State v. Miller, 364 Mo. 320, 261 S.W.2d 103 and State v. Montgomery, Mo., 223 S.W.2d 463. In short, applying the general principles, the circumstances in their totality do not constitute “error sufficiently grave as to call for a reversal or a new trial.” 62 A.L.R.2d 1. c. 181.

As stated, there are forty-four assignments of error in the appellant’s motion for a new trial, five or more of the assignments are lacking in specificity and statement of “the specific grounds or causes therefor” (Sup.Ct.Rule 27.20(a)), all other assignments of error have been considered and explicitly or impliedly overruled. The verdict of the jury was responsive (RSMo 1959, § 560.161, V.A.M.S.), there was al-locution and the sentence and judgment are responsive to the verdict (Sup.Ct.Rules 27.08, 27.09) and for the reasons indicated 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.


source: Caselaw Access Project

author: COIL, Commissioner.

license: Public Domain

text:
    Edward L. DUNBAR et al., Appellants, v. BOARD OF ZONING ADJUSTMENT et al., Respondents.
    No. 50429.
    Supreme Court of Missouri, Division No. 1.
    June 8, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied July 13, 1964.
    Walter A. Raymond and William W. Cochrane, Kansas City (Raymond, West & Cochrane, Kansas City, of counsel), for appellants.
    Herbert C. Hoffman, City Counselor, Guy W. Rice, Associate City Counselor, Kansas City, for respondent, Bd. of Zoning Adjustment.
    William E. Kemp, James P. Tierney, Kansas City (Kemp, Koontz, Clagett & Norquist, Kansas City, of counsel), for respondent, Franklin J. Stowell, Receiver of Arizona Sav. and Loan Asso.
   COIL, Commissioner.

In April 1962 the receiver of the Arizona Savings and Loan Association applied to the Board of Zoning Adjustment in Kansas City for the zoning of a site in Platte County for the construction of a waste stabilization lagoon. At a rehearing in October 1962 (granted after the application had been denied at the first hearing), the board approved the application for the facility subject to certain specified conditions pertaining to its construction.

Appellants here, who opposed the application below, were granted a writ of certio-rari by the Circuit Court of Platte County to review the record upon which the Board of Zoning Adjustment approved the receiver’s application. Following separate returns and answers by the board and receiver and after arguments of counsel, the circuit court affirmed the action of the board. Opponents, plaintiffs below, have appealed and contend that jurisdiction is in this court on the ground that the construction of the constitutions of the United States and of this state is involved within the meaning of Article V, Section 3, Missouri Constitution, V.A.M.S. Respondents contend that this court has no jurisdiction either on the assigned ground or for any other reason.

In our view, respondents are correct and jurisdiction of this case is properly in a court of appeals.

The zoning application was filed pursuant to Section 65.210, Revised Ordinances of Kansas City, Missouri, as amended, and sought a permit to construct in stages two lagoons or cells, each comprising two acres, on either eight acres or eleven acres of land, located about 2,500 feet north of Missouri Highway T and 2,800 feet west of United States Highway 71 in an R-A (agriculture) district. The land on which the lagoon was to be built was owned by the receiver of Arizona Savings and Loan Association, who sought to construct the facility to serve five existing houses and other proposed houses in subdivisions known as “Prairie Point Manor” and “Bel Manor.” The proposed lagoon site is lfá miles north of the north end of the City of Weatherby Lake, a city of the fourth class, located on Weatherby Lake. Title to the lake waters and lake bed are vested in Weatherby Lake Improvement Company as trustee for all the property owners in the City of Weather-by Lake. The evidence showed there were about 134 houses in the city, 363 residents, and about 600 lot owners.

The essential controversy, as disclosed by the record made before the Board of Zoning Adjustment, was whether effluent from the lagoon will drain into the lake at all or in such kind and quantity as to detrimentally contaminate or pollute the waters thereof.

Neither in appellants’ “Points Relied On” nor in the argument portion of their brief is there any contention that the zoning ordinance in question or any pertinent state statute is unconstitutional or invalid. The “Points Relied On” briefly summarized are: that the board and the court below misconstrued and failed to apply the controlling law; that the application to the board was insufficient in that it did not contain detailed plans as required by law; that the board’s order was illegal and void because a public and private nuisance would be the result of the operation permitted by the order; that the board’s order was not supported by substantial evidence on the whole record but was unlawful and unreasonable ; that the board’s order is illegal because is fails to protect the appropriate use of plaintiffs’ neighboring property in that it will depress the value of plaintiffs’ properties in Weatherby Lake and in that it deprives plaintiffs of prior vested property rights in Weatherby Lake and in their prop erty in violation of specified constitutional provisions; that the order of the board fails to take into account the equities involved and makes no attempt to effect a balancing of the general public’s interest in the proposed zoning with plaintiffs’ (who constitute an important segment of the public in the affected area) private property-interests; and that the order is thereby in violation of Section 89.040, RSMo 1959 and V.A.M.S. and is unconstitutional because it would thereby deprive plaintiffs of due process and equal protection of the law under the federal and state constitutions. The only references in the argument portion of the brief to the “constitutional points” in the “Points Relied On” are con-clusionary statements to the effect that the order of the Board of Zoning Adjustment deprives plaintiffs of the specified constitutional rights.

It seems clear from the foregoing résumé of appellants’ contentions that no question has been raised involving the construction of either the Constitution of the United States or of the State of Missouri. The statement of the Kansas City Court of Appeals in Bartholomew v. Board of Zoning Adjustment, Mo.App., 307 S.W.2d 730, 732, is here apposite: “Plaintiffs do not question the general constitutionality of the zoning law. It is rather their position that under the facts here, they proved a lawful nonconforming use amounting to a vested right, which both constitutions will preserve. If the evidence discloses such proof this court will protect such right and defendants do not contend otherwise. Thus the constitutional questions presented are somewhat summarily disposed of — substantively, by these observations and jurisdictionally, by the action of the Supreme Court in transferring the case to us. The following cases give ample precedent support to the conclusions just expressed. Curtin v. Zerbst Pharmacal Co., 333 Mo. 346, 62 S.W.2d 771, 772; Veal v. Leimkuehler, Mo.App., 249 S.W.2d 491, 495; Superior Press Brick Co. v. City of St. Louis, Mo., 152 S.W.2d 178.”

As suggested by the court in Bartholomew, supra, so also in the present case; if the evidence shows appellants have been deprived of constitutionally protected rights, they may have those rights protected. It may be that appellants will be able to convince an appellate court that had the trial court properly applied undisputed constitutional provisions, the application for the permit should have been denied; but applying established constitutional principles does not involve the construction of either constitution.

It seems to us that appellants are in reality contending that the judgment of the circuit court is erroneous because it affirmed the board’s decision which appellants say was not supported by competent and substantial evidence upon the whole record. The errors urged, if established, are correctible on appeal without involving the construction of any provision of either constitution.

The cases cited and relied upon by appellants to support their claim that this-court has jurisdiction are clearly distinguishable from this case in that in the cited cases the constitutionality or validity of a zoning statute or zoning ordinance had been challenged and thus its validity was-directly involved.

While appellants do not rely upon it as a ground for our jurisdiction, we should point out that we have carefully examined the record to determine whether there is any affirmative showing therein that the. amount in dispute exceeds $15,000. Article-V, Section 3, Missouri Constitution, and Section 477.040, RSMo 1959, V.A.M.S.

There is considerable evidence in the record pertaining to the cost of the proposed lagoon in question, the cost and value of the work done under a prior (expired); permit, and the costs of alternate suggested sewage disposal plans. There are statements in evidence to the effect that a denial of the application would do irreparable damage to the owners of the land in the proposed subdivision in that it would relegate that land as well as much land in the surrounding area to permanent status as farm land by preventing urban development ; assuming, however, that a trunk sewer system was not economically feasible. There is also evidence in the record to the effect that if the proposed lagoon contaminated or polluted Weatherby Lake it would lower property values there, and that the granting of the application would adversely affect the value of property in the surrounding area belonging to plaintiffs and to others. One witness speculated that if the present application was approved it would open the door to further applications which would eventually result in the presence and use of thirty lagoons instead of one which, if so, would cause the abandonment of Weatherby Lake in that the property values in the City of Weatherby Lake would be absolutely destroyed. Furthermore, the record shows that the assessed valuation of property in the City of Weatherby Lake is $690,000 and its actual value about two million, and that the homes built there are valued at from $15,000 to $90,000. It seems apparent, however, that the opinion testimony that the approval of the one application in this case means the Board of Zoning Adjustment will approve applications for thirty additional lagoons in a certain area, if made, is entirely conjectural and does not affirmatively show that any definite monetary amount is in dispute.

The test which should be applied in this type of case to determine the amount in dispute is the value in money of the relief to plaintiff or the loss to defendant should the relief be granted, or vice versa should the relief be denied. In determining the value of such relief or loss, however, the record must affirmatively show that its monetary value, independent of all contingencies, is in excess of $15,000. Kansas City Terminal Ry. Co. v. Kansas City Transit, Inc., Mo., 339 S.W.2d 766; Barnes v. Anchor Temple Assn., Mo., 369 S.W.2d 192, 193[l-3]. This court may not indulge in speculation and conjecture as to the amount in dispute for jurisdictional purposes. Long v. Norwood Hills Corp., Mo., 360 S.W.2d 593, 596, 597.

Inasmuch as the record does not affirmatively show that at the time of the appeal there was in dispute, independent of all contingencies, an amount in excess of $15,000 exclusive of costs, we do not have jurisdiction by reason of the amount in dispute, and inasmuch as no other ground for this court’s appellate jurisdiction appears, this case is transferred to the Kansas City Court of Appeals.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur except HENLEY, J., not sitting.


author: PRITCHARD, Commissioner.

text:
    Emma KUEHN, Respondent, v. Bryce D. HAHN, Appellant.
    No. 50331.
    Supreme Court of Missouri, Division No. 2.
    July 13, 1964.

      Albert E. Schoenbeck, St. Louis, Paul E. Corning, Jr., St. Louis, for respondent.
    Carter, Fitzsimmons & Brinker, Paul E. Fitzsimmons, Clayton, for appellant.
   PRITCHARD, Commissioner.

This is a personal injury action of plaintiff pedestrian against defendant who was operating a motor vehicle which struck plaintiff when she was walking southwardly in a crosswalk and when she reached a traffic curb lane on the south side of Southwest Avenue in St. Louis, Missouri. Plaintiff’s case was submitted to the jury upon her theory of defendant’s humanitarian negligence in failing sufficiently to slacken speed, or swerve his automobile, or to give a warning to plaintiff. Judgment upon verdict, from which defendant appeals, was in the amount of $22,500.00.

Defendant contends that plaintiff did not make a submissible case of his humanitarian negligence. In ruling upon this issue we disregard defendant’s evidence except insofar as it may aid plaintiff, and we consider plaintiff’s evidence as true and give to her the benefit of all favorable inferences which may be drawn from the evidence. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311, 312[1].

The occurrence was on Thursday, December 10, 1959, between the hours of 5 :00 and 6:00 p. m. Plaintiff had been traveling west in a bus from a shopping trip in downtown St. Louis. At the northeast corner and somewhat east of the intersection of Hampton Avenue and Southwest Avenue, plaintiff alighted from the bus intending to transfer to a southbound Hampton Avenue bus to her home on Itaska Street. The bus stop for the Hampton Avenue bus was on the southwest corner of the intersection necessitating plaintiff to walk across Southwest to the south and then to Hampton to the west where she would have been required to wait about twenty minutes for the bus to arrive.

The intersection in question was not square, but was more in the shape of a parallelogram, slanted to the west as one looks toward the north. Thus, the angle by which Southwest intersected Hampton at the southeast corner was 53 degrees, and at the northeast corner 127 degrees. Although Southwest was only 36 feet 6 inches wide, measured curb to curb, the crosswalk upon which plaintiff was walking was 87 feet long. Southwest had two lanes each for east and westbound vehicular traffic; Hampton, being 56 feet wide, curb to curb, had three lanes each for north and southbound traffic.

When plaintiff reached the northern end of the marked crosswalk and started walking across Southwest the electric signal on the southeast corner of the intersection was green and a •, white arrow indicated “left turn.” When she reached the middle of the intersection the “left turn” signal went off but the green “go” signal remained on. She continued walking fast to the south in the crosswalk and when she was in the most southern or curb lane for eastbound traffic on Southwest she first saw defendant’s automobile when it was right at her — a distance equal to the length of her cane from her. Her position was then about three feet from the sidewalk and she was in the east part of the crosswalk, which at that place was 9 feet 8 inches wide. She then took about two steps in an attempt to avoid being struck.

At the time of the impact of defendant’s automobile against plaintiff it was dark; the area was well lighted by all the lights, automobiles (defendant had the lights of his vehicle on), a filling station on the northeast corner and a doughnut shop on the southeast corner; and the weather was dry. The Intersection within its confines was practically level as shown by the photographs in evidence.

Defendant just prior to the accident, in driving to his home from his work, was headed south on Hampton. When he approached Southwest he stopped behind another automobile for a red light for about three seconds in the lane next to the center lane of Hampton. He could see the traffic signal on the southeast corner of the intersection, and when he received the signal therefrom he proceeded to make a left turn onto Southwest. He at no time observed any pedestrians walking in the crosswalk from north to south. When defendant first saw plaintiff she was five feet directly in front of his steering wheel and she was facing his right as he sat in his automobile. He did not know whether he swerved his automobile from the time he brought it to a stop, but he did apply his brakes and brought the vehicle to a stop on Southwest 25 feet east of the east curb line on Hampton. He did not sound his horn at any time. Before anything transpired defendant’s maximum speed was 10 to 15 miles per hour. His 1953 Pontiac two-door sedan was in good mechanical condition, and the brakes thereon were working satisfactorily.

Under his first point challenging the submissibility of the plaintiff’s case defendant seems only to maintain that her testimony is so contradictory that as a matter of law it should be disregarded. At no place does defendant point out where there is a deficiency of evidence upon any element of plaintiff’s humanitarian submission of negligence. We have reviewed the record carefully and as hereinafter discussed we deem it clear that plaintiff made a submissible case. If her testimony were contradictory or inconsistent in any material respect (and it was not), the matter of resolving the same as between prior deposition statements and her testimony at the trial was for the jury. Johnson v. St. Louis Public Service Co., 363 Mo. 380, 251 S.W.2d 70, 73 [2]; Roberts v. Emerson Elec. Mfg. Co., Mo., 338 S.W.2d 62, 69 [7].

The jury could reasonably have found that after plaintiff reached the center line of Southwest, the left turn signal having gone off and the green "go” signal remaining on, she continued to walk southwardly with her back to southbound and east turning traffic on Hampton. She was therefore oblivious to defendant’s approaching automobile. That obliviousness could have, in the jury’s determination of the facts of this case, increased her apparent zone of imminent peril. Teague v. Plaza Express Co., 354 Mo. 582, 190 S.W.2d 254, 256 [1-3]; Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972, 976 [5-8]. The exact point of plaintiff's position of imminent peril is ordinarily for the jury to determine under the evidence. Perkins v. Terminal R. Ass’n of St. Louis, 340 Mo. 868, 102 S.W.2d 915, 921 [11]; Daniels v. Smith, Mo., 323 S.W.2d 705, 711 [6]; Sperry v. Tracy Dodge-Plymouth Co., Mo., 344 S.W.2d 108, 111. Under the facts of this case defendant’s duty was to keep a vigilant lookout for pedestrians such as plaintiff in this intersection. That duty extended to discoverable peril. Faught v. Washam, 365 Mo. 1021, 291 S.W.2d 78, 81 [2, 3]. Plaintiff being in a zone of imminent peril and defendant having had a duty to discover her therein, both of which elements the jury might reasonably have found, what could the jury have further found concerning defendant’s ability thereafter to avert the injury ?

There was no direct testimony of defendant’s ability to slacken the speed of his automobile and thus avoid plaintiff. There was, however, testimony from defendant himself as to the place where he actually stopped after having applied his brakes upon seeing plaintiff S feet in front of him. That was 25 feet east of the east curb line (as extended northward) of Hampton. By simple computation the distance within which defendant did stop his automobile could have been computed by the jury. The west line of the southern portion of the crosswalk was 9 feet 2 inches from the east curb line of Hampton (as extended). The crosswalk itself was 9 feet 8 inches wide at that point. Defendant saw plaintiff when she was 5 feet in front of him and he then applied his brakes. Plaintiff testified she was in the eastern part of the crosswalk, so defendant would have been about at the west line thereof. Subtracting 9 feet 2 inches from the 25 feet would leave approximately 16 feet as defendant’s stopping distance at his speed of 10-15 miles per hour at a time when he could have seen plaintiff in a position of peril on the crosswalk. If he could have stopped within 16 feet he could have sufficiently slackened the speed of his automobile so as to have permitted plaintiff to continue on her way in this “almost escaping” case. See Steger v. Meehan, Mo., 63 S.W.2d 109, 110 [2, 3]. where it was said, “The greatly increased speed and use of automobiles and their improved brakes and other appliances has greatly speeded up traffic on our streets and highways. These things and the greater duty resting upon their drivers have also speeded up the humanitarian doctrine as applied to them. If an automobile can be driven (at 25 miles per hour) 75 feet in two seconds, surely it can be swerved 3 or 4 feet to one side in that time to avoid striking a pedestrian 2 feet from the curb. If it can be brought to a complete stop in 20 feet, surely it can be slowed enough in much less than that distance to allow a pedestrian, in such a position, to escape it.”

Concerning defendant’s ability to swerve his automobile and avoid plaintiff who was three feet from safety (by her testimony considered as being true), in addition to the Steger case, supra, see Perry v. Dever, Mo., 303 S.W.2d 1, 7 [13]. where it was said, quoting Brown v. Callicotte, Mo., 73 S.W.2d 190, 193, and Shaw v. Griffith, Mo.App., 291 S.W.2d 230, 235, “It is too generally and well known to require formal proof that present day automobiles respond quickly and accurately to the touch of the driver’s hand on the steering wheel. The necessary impulse may be applied in an instant.”

The jury could have further found that a warning by defendant to the oblivious plaintiff would have prevented her from pursuing her course into defendant’s path. As a reasonably prudent person defendant should have realized that plaintiff was in or was going into danger (Allen v. Kessler, Mo., 64 S.W.2d 630, 632 [1-1]; McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907, 909) and that the obliviousness of plaintiff pedestrian to defendant’s approaching automobile could extend her imminent peril zone beyond her ability to stop short of the path of such automobile. McFarland v. Wildhaber, Mo., 334 S.W.2d 1, 3 [2-7]. Defendant’s first point is ruled against him.

Defendant’s second point is that the court erred in giving the humanitarian Instruction No. 1 because it was not supported by the evidence and because it failed to hypothesize essential facts (place of imminent peril) which the jury must have found in order to return a verdict for the plaintiff. Under this point defendant contends that there was no evidence as to where plaintiff came into a position of imminent peril. The instruction requires the finding that while crossing the street plaintiff came into and was in a position of imminent peril of being struck and injured. We have discussed above the fact that the jury could reasonably have determined that plaintiff was in a position of imminent peril and we have held and cited the cases which hold that the determination of the place of such peril is for the jury. Nothing more is required. It would have been error to have instructed the jury as to zvhen (i. e., time and place) the plaintiff came into peril. Wofford v. St. Louis Public Service Co., Mo., 252 S.W.2d 529, 533; Harrington v. Thompson, Mo., 243 S.W.2d 519, 525. Point 2 is overruled.

The third point of defendant is directed toward the propriety of the giving of the damage Instruction No. 9. Defendant says that instruction permitted double damages. Instruction No. 9 reads, concerning the parts of which defendant complains :

“ * * * In arriving at the amount of your verdict, you may take into consideration the following:
“First: The nature, character and extent of the injuries, if any, sustained by plaintiff.
“Second: The physical pain and mental anguish, if any, which plaintiff has suffered as a direct result of said injuries.
“Third: The physical pain and mental anguish, if any, which plaintiff is reasonably certain to suffer in the future as a direct result of such injuries.”

It is apparent that the foregoing instruction would not allow the jury to assess double damages. It first requires a consideration of the nature and extent of plaintiff’s injuries, then flowing from that only the past pain and mental anguish plaintiff had suffered and the future pain and mental anguish plaintiff was reasonably certain to suffer. See Moss v. Mindlin’s, Incorporated, Mo., 301 S.W.2d 761, 768; Kelly v. Kansas City Public Service Company, Mo., 335 S.W.2d 159, 165 [10]. There is no merit in defendant’s Point 3, and it is overruled.

For his fourth and last point defendant says the court erred in ruling on objections and in the final argument. Defendant first says that plaintiff started to cry during her direct examination which created prejudice against him. The record reveals that counsel for defendant called this incident to the attention of the court by stating that plaintiff almost started to cry and that he noted that the jurors paid particular attention to it. The court overruled the request for mistrial saying that he didn’t notice any incident. That should dispose of the matter because the trial court was in a position to observe and to judge the prejudicial effect of any such emotional demonstration. Furthermore, the matter of declaring a requested mistrial by reason of such emotional outbursts rests in the sound discretion of the trial court. Golian v. Stanley, Mo., 334 S.W.2d 88, 91 [1-3]. Skadal v. Brown, Mo., 351 S.W.2d 684, 690 [16-18]; Walton v. United States Steel Corporation, Mo., 362 S.W.2d 617, 626.

Defendant next says the court erred in overruling his objection to the cross-examination of witness Fritz who was the driver of the bus from which plaintiff alighted on Southwest. Fritz was asked if he had not stated that when passengers got off of his bus he was glad to get rid of them, and a portion of his deposition was read in which he stated the same thing, and also that he didn’t recall specifically about any passengers getting off his bus. Defendant claims that “The sole purpose of this question was to discredit this one disinterested eyewitness in the eyes of the jury, prejudice the defendant, and to attempt to persuade the jury as to the ere-dence of the fanciful story of the plaintiff.” We perceive no error in these respects. The cross-examination of witness Fritz was proper, and tended to test his opportunity and interest to observe plaintiff.

Defendant was asked on cross-examination if he did not write out in his own handwriting a statement to the police that the right front headlight of his automobile struck plaintiff. Defendant answered that he did not recall, but stated that he did write a statement. Defendant says it is “error to receive evidence in the possession of an unidentified witness who is not in court and subject to cross-examination.” We see no error. It was proper for plaintiff to cross-examine defendant as to any admissions made with respect to what part of his automobile struck plaintiff, and the statement was not offered or received in evidence.

The above are the only objections to which defendant directs our attention, and which were ruled against him. There were two objections by defendant in the final argument which were ruled properly by the court. Defendant otherwise elected to remain silent because, as he says, the trial court “consistently failed to sustain meritorious objections. This was particularly true in the final argument where it was deemed not to be prudent to interpose objections when defendant’s counsel knew that the judge would not sustain the objection, * * A party may not sit silently by and expect the trial court to protect his record. The function and purpose of timely objections and requests during trial is not only to preserve error but is to call to the trial court’s attention any such error in order that corrective measures may be taken, such as sustaining the objection, directing the jury to disregard improper matters, and even admonishing or reprimanding counsel whose conduct is improper. We discover no prejudice in any matter to defendant. Point 4 is overruled. The case was fairly tried and the verdict was for the right party under the evidence.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.