author: HYDE, Presiding Judge.

text:
    COMMERCE TRUST COMPANY, a corporation, et al., Respondents, v. William Kirk FAST et al., Appellants.
    No. 51402.
    Supreme Court of Missouri, Division No. 1.
    Dec. 13, 1965.

      Stinson, Mag, Thomson, McEvers & Fiz-zell, Donald H. Chisholm, Kansas City, for respondent Jane Poindexter Fast.
    Dietrich, Tyler, Davis, Burrell & Dicus, Clarence H. Dicus, Kansas City, for respondent William Kellar Poindexter.
    Lowell L. Knipmeyer, Kansas City, for respondent Henry Pratt Poindexter.
    Watson, Ess, Marshall & Enggas, Vernon B. Kassebaum, Marvin C. Hayward, Clayton R. Smalley, Kansas City, King, Robin, Gale & Pillinger, Willard L. King, George W. Gale, Chicago, Ill., for respondent Mary Elizabeth Silverstein.
    Warren E. Slagle, Kansas City, Guardian Ad Litem for minor defendants.
   HYDE, Presiding Judge.

Declaratory judgment action to construe will of Harry Kellar Poindexter (hereinafter called testator) establishing trusts and for instructions to the trustees. The minor defendants, grandchildren of testator, and their guardian ad litem have appealed from the decree entered. We have jurisdiction because three of the testator’s four children seek to require the testamentary trustees to distribute to them, as absolute owners, assets which are in excess of our jurisdictional amount. Art. V, Sec. 3; Sec. 477.040, RSMo, V.A.M.S. (The trustees allege and these defendants admit they held assets of the value of $582,699.13, part of which was real estate; but an accounting in evidence indicates a value of $338,572.19 for the undistributed assets.) Robert v. Mercantile Trust Co., 324 Mo. 314, 23 S.W.2d 32; Sebree v. Rosen, Mo.Sup., 349 S.W.2d 865. The decree declared that a renunciation^ by one child of the testator was valid and accelerated the remainder interests as vested interests in the testator’s other three children; that these three of the testator’s four children were entitled to distribution of all trust assets; and that “none of the named minor defendants, nor any member of the class II group of defendants (testator’s grandchildren or descendants) has any right, title or interest in such trust corpus and assets.”

Testator’s will established a trust in part of his property designated Trust A for his wife for life, which terminated when she died October 12, 1962. (Testator died December 3, 1961.) Most of the rest of his property was put in another trust designated as Trust B, the income from which was to be paid to three of his children (two sons and one daughter) one-fourth each during the life of his widow but with the other one-fourth payable to his daughter Mary Elizabeth Silverstein only if she was single and unmarried. The will provided that after the death of testator’s widow, three-fourths the property in Trust B, increased by any balance in Trust A, should be distributed to the three children, who had been receiving the income, one-fourth to each. The remaining one-fourth was to be held in trust with the income to be paid to Mary “during any period of time she is single and unmarried” but to be added to the principal so long as she remained married; and upon her death to go equally to the other three children. Mary commenced an action to contest the will on grounds of lack of testamentary capacity.

Thereafter, Mary renounced all devises and bequests under testator’s will and all right, title and interest in his estate including all interest under Trust B thereof. This was done in accordance with a “Family Settlement Agreement” which provided for dismissal of Mary’s will contest suit, distribution to the other three children of the trust property who agreed to transfer to Mary such portion of the trust property received by them so that each of the parties would hold an equal share of the trust assets. It was also provided if a court determined the portion of the trust held for Mary was not accelerated, “then the property distributed to the trustees of the portion of said trust shall be held by said trustees in accordance with the terms and provisions of said will and codicil and this agreement shall in no way affect the administration or distribution of said portion of said trust property except as affected by the renunciation of First Party.” Mary also agreed to make a will leaving all property she received to the other three children of the testator; a form of such will was attached to the agreement. Mary had no children; appellants are the children of the other three children of the testator.

Respondents’ claim is that Mary’s renunciation relates back to the date the will became effective so that will is to be construed as though the renouncer predeceased the testator; and that succeeding interests are accelerated, citing Sanders v. Jones, 347 Mo. 255, 147 S.W.2d 424; St. Louis Union Trust Co. v. Kern, 346 Mo. 643, 142 S.W.2d 493; Broaddus v. Park College, 238 Mo.App. 304, 180 S.W.2d 268. Appellants contend there was no acceleration for the fa l-lowing reasons: (I.) there was no effective renunciation because her renunciation was part of a plan for Mary to receive substantial parts of the estate; (2) appellants had contingent remainders which could not be defeated because this would be contrary to the express provisions of the will; (3) the adult beneficiaries had no power to terminate the trust by voluntary agreement and destroy the remainder interests of appellants; (4) the trust created by the will was a spendthrift trust which Mary sought to end by agreement with remaindermen but which could not be terminated by agreement.

As to the first, appellants’ argument is that Mary’s renunciation was executed for the purpose of and as a part of a plan for receiving a substantial part of the estate renounced and therefore was not a renunciation. They say her purpose was to obtain a larger part of her father’s estate than the will gave her and that has been the result. In the first place, what Mary receives is to be received from the testator’s other children and not from the estate. In McCormick v. Engstrom, 119 Kan. 698, 241 P. 685, In re Johnston’s Estate, 186 Wis. 599, 203 N.W. 376, and In re Mead’s Estate, 227 Wis. 311, 277 N.W. 694, 279 N.W. 18, 116 A.L.R. 1127, cited by appellants, there were attempts to directly transfer the interest involved by a renunciation in favor of another and it was held that such a conditional transfer was not a true renunciation. In this case, the renunciation was absolute and unconditional, effective regardless of the result reached by the court in litigation construing its effect. As to the motive for the renunciation, it is stated in 2 Powell on Real Property 623, ¶ 309: “Renunciation can, but seldom does, occur without the renouncer claiming another, and usually larger, share in the total assets.” Certainly this is almost always true when a widow renounces a will. The case cited by appellants, In re Slawson’s Estate, Fla., 41 So.2d 324, gives as a definition of renunciation “‘a gratuitous abandonment or giving up of a right; an express waiver without consideration.’ ” See 76 C.J.S. 1169, 54 C.J. 392. However, the cases cited relate to renunciation in connection with negotiable instruments. See English v. Evans, Mo.App., 157 S.W.2d 793, 795; Gannon v. Bronston, 246 Ky. 612, 55 S.W.2d 358, 362, 86 A.L.R. 324. In 96 C.J.S. Wills § 1151, p. 951, it is said: “A consideration is not essential to the validity of a disclaimer by a devisee of his interest.” See In re Hodge’s Estate, 20 Tenn.App. 411, 99 S.W.2d 561, 564. In any event, any consideration involved herein was not from the estate or the trust.

57 Am.Jur. 1071, Wills, Sec. 1566, states: “The motives of the donee in declining the gift are immaterial, at least so long as he receives no fraudulent benefit for the renunciation.” See also Annotation, 93 A.L.R.2d 64, citing In Re Wimperis, Eng. (1914) 1 Ch. 502, in which it was said of a renunciation by a legatee who was given an annuity by the will: “I have no doubt at all that the desire to refuse is the result of a bargain made between her and the residuary legatees — not a bargain between her and the executors, but between her and persons who are for this purpose outsiders — by which she is to receive certain benefits, not those given by the will. * * * What is suggested by the trustees is that the effect of the negotiations and correspondence is that they are evidence that she had accepted the legacy. That is the contention, because if she had accepted she could not have disclaimed. Is that really so? The desire of the parties was to substitute something else for the annuity. How the substitution was to be effected was not determined. I think on the whole that it would be going too far. to say that in proposing to accept something in substitution the plaintiff must be treated as having accepted the annuity and as proposing to assign and release it. I take it that at the time of the correspondence she had not made up her mind to accept the annuity. The matter was still in abeyance and she has now definitely made up her mind not to accept it. I hold, therefore, that she is entitled to disclaim the bequest.” Certainly in this case, Mary never accepted the trust provisions for her. Certainly the will did not make provisions which would be beneficial to her so as to be any basis for a presumption of acceptance. See Seifner v. Weller, Mo.Sup., 171 S.W.2d 617. Instead she promptly indicated her rejection of these provisions by bringing a suit to contest the will, which was only dismissed after she renounced all interest under the will. Whatever Mary will receive will not be received from the executors or trustees of her father’s estate but directly from her brothers and sister “who are for this purpose outsiders.” We, therefore, hold that Mary was entitled to renounce unless prevented by the spendthrift trust provision of the will which we will next consider.

In appellants’ fourth point, it is argued Mary could not renounce because of the spendthrift trust provision in the will that beneficiaries “shall be without power to sell, assign, transfer, pledge, mortgage, hypothecate, alienate, anticipate, or in any manner encumber or affect his or her claim, beneficial or other right, title or interest in and to the net income or principal of any of the Trust Estates, or any part thereof, nor shall such claimed interest in any Trust Estate, or any part thereof, be subject to his or her liabilities, or to judgment, or to legal process, bankruptcy proceedings, or claims of creditors, and shall not otherwise pass by operation of law, but any such attempted pledge, assignment, transfer or other disposition, voluntary or involuntary, shall be void.” It is said: “The beneficiary of a spendthrift trust cannot disclaim after he has once accepted the provision made for him in the trust any more than he could disclaim the interest in an ordinary trust after he had once accepted. But may the beneficiary of a spendthrift trust disclaim the interest, thus terminating the trust as to him, before he has accepted the interest under the trust? The few cases on this question are not in entire agreement. In England it was held that a married woman might disclaim a legacy given for her separate use and subj ect to restraints on alienation. [In Re Wimperis, supra.] A similar result would clearly follow where a widow elects to take against a will which establishes a trust in her favor. The American eases, though not entirely clear, generally take the view that the interest under a spendthrift trust may be disclaimed.” (Bracketed insert ours.) Spendthrift Trusts, Griswold, 2d Ed., 603, Sec. 524. Likewise Sec. 36, Comment c, American Law Institute Restatement of Trusts, states: “Although the beneficiary of a spendthrift trust who has accepted the interest under the trust cannot release his interest, he can, if he has not accepted the interest, disclaim it.” Appellants rely on cases such as In re Borsch’s Estate, 362 Pa. 581, 67 A.2d 119, where the beneficiary of a spendthrift trust attempted to renounce after having received the income for 25 years. Appellants’ other cited cases are Clemenson v. Rebsamen, 205 Ark. 123, 168 S.W.2d 195; Fletcher v. Los Angeles Trust and Savings Bank, 182 Cal. 177, 187 P. 425; Stein v. La Salle National Bank, 328 Ill.App. 3, 65 N.E.2d 216; Kirkland v. Mercantile-Safe Deposit & Trust Co., 218 Md. 17, 145 A.2d 230; Rose v. Southern Michigan National Bank, 255 Mich. 275, 238 N.W. 284; Bixby v. St. Louis Union Trust Co., 323 Mo. 1014, 22 S.W.2d 813; In re Bosler’s Estate, 378 Pa. 333, 107 A.2d 443. All of these cases, except Bixby (which involved assignment of income received by a beneficiary), involved attempts by beneficiaries to terminate a trust and obtain the trust property, not a renunciation of their interest in it. None of them involves a renunciation of an interest which had never been accepted or acquired at all and as to which the intended beneficiary contested the will creating it at all times claiming it was invalid. We hold, under the circumstances of' this case, Mary could and did renounce all provisions of the will for her. It is suggested that the testator’s other three children have anticipated their interest in the trust for Mary in violation of the spendthrift trust provision; but since Mary had the right to renounce and since as we hold their interests in the trust for her accelerated by operation of law from her renunciation, we do not consider the spendthrift trust provision to be involved in determining their rights.

Appellants’ second and third contentions are considered together as doctrine_of acceleration answers both. See Sec. 231, American Law Institute Restatement of Property; 2 Powell on Real Property 623, ¶ 309; 5 American Law of Property 196, Sec. 21.43; Annotation, 164 A.L.R. 1297; 33 Am.Jur. 620-628, Life Estates, Remainders, Etc., Secs. 154-159; 31 C.J.S. Estates § 82, p. 156; 57 Am.Jur. 1073-1076, Wills, Secs. 1571-1573; 96 C.J.S. Wills § 1151, p. 948. The case of Keen v. Brooks, 186 Md. 543, 47 A.2d 67, 164 A.L.R. 1292, presented a situation similar to this case. There the testator created a trust of his residuary estate for his daughter Mrs. Keen for life, at her death the principal to be divided equally between the testator’s two grandchildren. It was provided that if either of the grandchildren should die without issue before the death of Mrs. Keen the whole of the principal should be paid to the survivor and if either died with issue the issue of the deceased grandchild should “take the share which their parent would have taken if living, per stirpes.” Mrs. Keen and both granddaughters survived the testator and Mrs. Keen filed a renunciation of the life estate. The estate was distributed to the granddaughters including a tract of land which thereafter they deeded to Mrs. Keen, who contracted'to sell it. The title being questioned by the purchaser, Mrs. Keen brought specific performance which the trial court denied. On appeal, this was reversed, the court holding: “The substitutional provisions in favor of more remote descendants are not alone sufficient to prevent acceleration. Since the grandchildren acquired the absolute estate upon renunciation, the subsequent conveyance and the contract of sale are valid, and specific performance should have been decreed.”

The court based its ruling on the principles of the Restatement of Property, discussed as follows: “The rules applicable to the solution of problems growing out of renunciation are clearly set out in the Restatement, Property. Section 231 declares; ‘When an attempted prior interest fails because the person to whom it is limited renounces it, succeeding interests are accelerated except when (a) the terms and circumstances of the limitation manifest a contrary intent * * *.’ We are not here concerned with situations where the person renouncing claims an interest in derogation of the dispositions sought to be made, as for example, a renouncing spouse. Comment (a) points out that ‘whenever an attempted prior interest is renounced, some disturbance of the desired plan of disposition is inevitable. The extent of this disturbance normally is kept at a minimum by accelerating the succeeding interests. This occurs in accordance with what is normally to be inferred as the intent of the conveyor, namely, that as each of the successive interests sought to be created by him ends or becomes impossible, the next in order in the limitation should move up. * * * Since acceleration occurs pursuant to an inferred intent it is prevented by a manifestation of an intent contrary to that normally to be inferred.’ Comment (e) states that ‘when the renounced interest is the only hindrance to the succeeding interest becoming forthwith a present interest, then acceleration which occurs in accordance with the rule stated in this section causes such succeeding interest to become forthwith a present interest. The fact that such interest has become a present interest may end the time during which it continues to be defeasible * * *.’ Comment (h) states that ‘when the renounced interest is the only hindrance to the succeeding interest becoming forthwith a present interest and such succeeding interest is limited with a provision that if a designated event shall occur during the stipulated period of the renounced interest then another interest in another person shall be substituted therefor, such substitution is to be construed as having been intended to occur only if the designated event occurs during the actual continuance of the attempted prior interest. The renunciation of such attempted prior interest prevents the period within which such substitution was intended to be possible from ever existing. The accelerated interest is not defeasible upon the subsequent occurrence of the ^designated event. This rule of construc-I tion is required by the intent normally to ¡be inferred from a limitation of the type described * * *. The rule stated in this comment applies to limitations made in favor of a class where, in the absence of renunciation, existing persons would be construed to have interests vested subject to complete defeasance in favor of such persons as remain in the class at the end of the stipulated duration of the renounced interest.’ The illustrations make it clear that where there is a devise to a life tenant and a named remainderman C, the mere fact that it is provided that if C predeceases the life tenant the property shall go to C’s descendants alive at the life tenant’s death, and if none to a third party, will not prevent C from taking an indefeasible estate upon renunciation.

“In further comment on clause (a) it is said: ‘A construction that the “terms and circumstances of the limitation manifest a contrary intent” is not justified solely by the fact that after limiting a life interest (the renounced interest) it is provided that the gift over shall take effect “at the death of” the life tenant * * *. Such language is to be construed as referring to the ending of such life interest either in the manner stated or. by its renunciation.’ ”

These principles are also stated, as follows: “When the renounced interest is the only hindrance to the succeeding interest becoming forthwith a present interest and the succeeding interest is limited as a gift to a class in such manner that the class can increase its membership only during the stipulated period of the renounced interest, then such increase in membership is usually to be construed as having been intended to occur only during the actual continuance of the attempted prior interest. The renunciation of such attempted prior interest prevents the period during which such increase was intended to be possible from ever existing. The accelerated interest of each of the persons who is a member of the class at the time when the creating conveyance becomes operative is not subject to being diminished in size by such class thereafter and during the stipulated period of the renounced interest opening and admitting new members. This rule of construction is required by the intent normally to be inferred from a limitation of the type described.” 2 Powell on Real Property, ¶ 309, p. 628. We find nothing in the will to manifest a contrary intent to vesting in the three named children upon termination of the trust for Mary by reason of her renunciation of it. For situations in which a contrary intent as to termination appears and sequestration is authorized for eventual distribution, see Secs. 232, 233, 234, 235, Restatement of Property. See also Crossan v. Crossan, 303 Mo. 572, 262 S.W. 701; St. Louis Union Trust Co. v. Kern, supra, 346 Mo. 643, 142 S.W.2d l. c. 498. We hold that Mary’s renunciation was valid and that it resulted in acceleration of the remainders of the other three children of the testator.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Joseph SANFILIPPO, Appellant, v. Charles John BOLLE, Jr., Respondent.
    No. 51050.
    Supreme Court of Missouri, Division No. 2.
    Dec. 13, 1965.
    Earl R. Blackwell, Hillsboro, for appellant.
    Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondent.
   STOCKARD, Commissioner.

Plaintiff has appealed from the judgment entered pursuant to jury verdict in his suit for $25,000 for the wrongful death of his minor daughter, Maria Sanfilippo.

Maria was a passenger in an automobile operated by Delores Sanfilippo, her mother, which was proceeding southward in the east lane of the two southbound lanes of U. S. Highway 61-67. She had her “blinker signal” on and intended to turn left to enter a market which she and her husband operated. Defendant Charles J. Bolle, Jr., was proceeding northward on the highway, and as he approached the Sanfilippo automobile, he moved into the west lane of the two northbound lanes to pass an automobile operated by Charles F. Cash. Mrs. San-filippo testified that defendant “swung out” from behind the Cash automobile at a speed of 70 to 75 miles an hour and came “over the yellow line” and “into the left inner lane of the southbound traffic,” and sideswiped her automobile on its right side. Defendant testified that he was driving at a speed of 45 miles an hour, that Mrs. Sanfilippo started to cross the highway in front of him, and that he turned left to miss her and the collision occurred. In any event, the Sanfilippo and the Bolle automobiles struck each other in a sideswiping collision, Mrs. Sanfilippo lost control of her automobile as a result thereof, it crossed the northbound lanes of the highway, and was then struck headon by the Cash automobile. Maria sustained injuries which resulted in her death. This action is by Maria’s father against Bolle only.

The theory of plaintiff’s case, as submitted by his verdict directing instruction, was that “defendant drove and operated his automobile from the northbound lane of said highway, across the center line and into the southbound lanes thereof, colliding with the automobile in which * * * Maria Sanfilippo was riding as a passenger * * an(j * * * the aforesaid conduct * * * constituted negligence on the part of said defendant, and that said negligence * * * directly and proximately caused the collisions mentioned in the evidence and the death * * * [of] Maria Sanfilippo * * *

At the request of defendant the trial court gave Instruction D4, the first paragraph of which was as follows:

“The Court instructs the jury that the plaintiff cannot recover from the defendant Charles John Bolle, Jr., unless he has proved that Maria Sanfilippo came to her death because of the collision of Mrs. Sanfilippo with the Bolle automobile, and that such collision was caused by negligence of the defendant Charles John Bolle, Jr. Unless plaintiff has proved such facts, it is your duty to, and you must, find the verdict in favor of the defendant Charles John Bolle.” (Italics added.)

The instruction purports to be a converse instruction on the issue of negligence in that the jury is told that plaintiff cannot recover unless it found that the collision between the Sanfilippo and Bolle automobiles “was caused by negligence of the defendant.” It also conjunctively includes what apparently purports to be a converse of proximate cause, in that the jury is told that plaintiff cannot recover unless it found that Maria “came to her death because of the collision” of the Sanfilippo and Bolle automobiles. Plaintiff asserts this instruction was erroneous because by it the jury was told that “before they can find for plaintiff they must find that Maria Sanfilippo died in the collision with the defendant’s automobile.” What plaintiff apparently means is that the instruction told the jury that in order for them to find in favor of plaintiff and against Bolle, they were required to find that Maria died as the result of injuries sustained in the sideswiping collision. If this is true, the instruction was erroneous.

Defendant argues that the dictionary definition of the words “because of” is “by reason of” or “on account of,” and he asserts that plaintiff attempts to construe the words “because of” to mean “in.” He relies on Stratton v. Kansas City, Mo., 362 S.W.2d 558. There an instruction submitted that “if you find and believe from the evidence that the sidewalk where plaintiff claims to have fallen was in a reasonably safe condition for travel, and if you further find plaintiff fell because of a general condition of snow or ice, then your verdict must be for the defendant.” In analyzing the meaning of the words “because of” as there used, this court said: “The instruction as a whole required the jury to find, in order to return a verdict against plaintiff, that plaintiff’s fall was due to the snow or ice and that the sidewalk was in a reasonably safe condition.” Applying this analogy to this case, Instruction D4 told the jury that plaintiff could not recover unless it found (1) that the sideswiping collision “was caused by negligence of defendant,” and (2) that Maria’s death was due to that sideswiping collision. In Merrill v. Los Angeles Gas & Electric Co., 158 Cal. 499, 111 P. 534, 31 L.R.A.,N.S., 559, 139 Am.St.Rep. 134, the use of the words “because of” in an instruction was held to be equivalent to the word “caused.” In that event, Instruction D4 told the jury that plaintiff could not recover unless it found (1) that the sideswiping collision “was caused by negligence of defendant,” and (2) that Maria’s death was caused by that sideswiping collision.

Whether an instruction is confusing or misleading depends on how it would be understood by a jury composed of ordinary intelligent laymen when it is read and considered with the other instructions. Smith v. Stanolind Pipe Line Co., 354 Mo. 250, 189 S.W.2d 244; Breshears v. Union Electric Company, Mo., 373 S.W.2d 948. In this case, the evidence showed that the Sanfilippo automobile was involved in two collisions, and plaintiff’s verdict directing instruction refers to the negligence of Bolle which “directly and proximately caused the collisions * * * and the death * * * [of] Maria Sanfilippo.” The evidence also indicated that in all probability the sideswiping collision did not cause any injuries to Maria that would be serious, much less fatal. The logical conclusion from the evidence, under plaintiff’s theory, was that Bolle negligently crossed the center line and sideswiped the Sanfilippo automobile which caused Mrs. Sanfilippo to lose control of her automobile, and as a result thereof it was struck headon by the Cash automobile. Under this theory it was immaterial whether the injuries sustained by Maria which caused her death were received only in the first or in the second collision or partially in both.

Perhaps it may be said, strictly speaking, that even if Maria did not sustain any injury whatever in the sideswiping collision that her death resulted “because of” it for the reason that it was a contributing proximate cause of Mrs. Sanfilippo losing control of her automobile and permitting it to cross the highway and be struck headon by the Cash automobile. But in our opinion that is speaking too strictly. It is not properly a question of what was the proximate result of the first collision, but what was the proximate result of defendant’s negligence. If defendant wanted to converse the submission that his negligence was the proximate cause of Maria’s death he could have easily done so. Instead he employed a confusing and misleading instruction which to an ordinary intelligent layman would easily, and we think most probably, be construed to mean that plaintiff was not liable for Maria’s death unless her death resulted from injuries sustained in the sideswiping collision with his automobile. “We have held that to give an instruction, even though technically correct, which is misleading because it fails to cover the entire situation, leaves in doubt the real issues, and confuses the jury as to applicable rules of law is reversible error.” Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393; Millhouser v. Kansas City Public Service Co., 331 Mo. 933, 55 S.W.2d 673; Peppers v. St. Louis-San Francisco Ry. Co., 316 Mo. 1104, 295 S.W. 757; Dowd v. Schoening, Mo.App., 276 S.W.2d 478. Instruction D4 was misleading in that it ignored the sideswiping collision as a contributing cause of Maria’s death, and its reference to it as the cause of Maria’s death was based on the use of the equivocal words “because of;” it confused the real issue, that is, whether defendant’s negligence, if the jury found he was negligent, was the proximate cause of Maria’s death; and it was confusing in that it indicated that as a matter of law defendant was not liable unless Maria’s death resulted from injuries sustained in the sideswiping collision.

We are supported in our construction of the language used in the instruction in that defendant placed on it precisely the same meaning. Note defendant’s argument to the jury: “These pictures [of the Bolle automobile] demonstrate what Mr. Bolle has been telling you, the point I’ve been trying to get across to the jury from the time we started this morning. There’s a sideswiping damage to the Bolle automobile. That’s not the kind of accident that would produce the death of this infant. * * * Now let’s look at the damage to the Sanfilippo car. That kind of damage wasn’t done in any sideswipe collision. That kind of damage was done when she ran over here angling across the highway and when the front end of Cash’s car plowed into her. That’s the thing that did that damage. That’s not the impact between Mrs. San-filippo and the Bolle car that brought that about.” (Italics added). It is true that plaintiff did not object to the above argument, but he did object to the instruction, and we quote the argument to show that defendant placed the same meaning on the instruction that we conclude a jury would have placed on it. In our opinion Instruction D4 constituted a misdirection and therefore was prejudicial.

Other contentions of error made by plaintiff need not be considered because their nature is such that they probably will not again occur in the event of a new trial.

The judgment is reversed and the cause remanded.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    Jack FLEMING, Erma Fleming, Rex Schupbach, Luther E. Hilliard, Virginia Hilliard, James Warren and D. Patsy Warren, Plaintiffs-Appellants, v. The CITY OF NIXA, Missouri, a Municipal Corporation, Defendant-Respondent.
    No. 51250.
    Supreme Court of Missouri, Division No. 2.
    Dec. 13, 1965.

      John B. Newberry, Springfield, for appellants.
    Sam Appleby, Ozark, Donald E. Bona-cker, Skelton & Bonacker, Springfield, for respondent.
   BARRETT, Commissioner.

This is a case by taxpayers and voters, said to be representative of a class, seeking to enjoin the City of Nixa from issuing revenue bonds in the sum of $265,000 for the purchase or construction of a municipally owned electrical distribution system. By reason of the amount involved jurisdiction of the appeal is appropriately in this court. Missouri Power & Light Co. v. City of Bucklin, 349 Mo. 789, 163 S.W.2d 561.

Essentially the appellants’ claim is that the election authorizing, by a four-sevenths vote, the issuance of the bonds was illegal, “a nullity and void,” and therefore of course that the city had no authority to issue the bonds. The appellants necessarily admit, and the admission is all but determinative of the appeal, that the constitutional provision thus authorizing the issuance of revenue bonds for the construction, purchase or improvement of municipally owned “electric light works” (Const.Mo. Art. 6, § 27, V.A.M.S.) is self-enforcing. State ex rel. City of Fulton v. Smith, 355 Mo. 27, 194 S.W.2d 302. Nevertheless, they contend, since there are no specific statutes concerning the “method or means” by which cities of the fourth class may conduct “revenue bond elections” that such elections are governed by the statutes relating to the election of officers in cities of the fourth class, particularly RSMo 1959, § 79.030, V. A.M.S., which concludes in part, “The manner of making returns of such elections shall be prescribed by ordinance * * *.” There is no general ordinance in the City of Nixa concerning, in the language of the appellants, “the means or methods by which the voters in a revenue bond issue shall be canvassed” and therefore it is said that the quoted language of § 79.030 has been violated, that the election was illegal and the bonds invalid. In summary, the appellants contend, there being no general or permanent city ordinances regarding revenue bonds and elections, the statute relating to the election of officers in cities of the fourth class, 79.030, “requires that the procedure for canvassing such an election be established by ordinance” and absent the permanent ordinance the procedure followed here rendered the election a nullity.

The election procedure followed here in submitting to the voters of Nixa the issue of the revenue bonds for a municipally owned electric light plant was substantially identical to the procedure adopted and followed in State ex rel. City of Fulton v. Smith, supra, and, as indicated, that case alone may be sufficient to dispose of this appeal. But the appeal need not be made to turn alone on that determination, the revenue bond election procedure here was almost identical with that followed in several other cases, cases involving revenue bonds and municipal light plants, and it is not necessary to accurately detail every step involved in the submission of the issue. In brief these were the admitted or indisputable facts of the election authorizing by the required vote the issuance of the $265,000 revenue bonds by the City of Nixa. On August 5, 1964, there was a formal notice by the mayor to the Board of Aldermen calling a special meeting for “considering and acting” on the passage of an ordinance “calling a special bond election.” On the same day all four members of the board signed a “consent to meeting.” Also on August 5th there was a meeting of the board and one alderman “presented Bill No. 137” for an ordinance calling a special election for submitting to the voters of Nixa a $265,-000 revenue bond issue for the purchase or construction of a municipally owned “electric light works.” The bill called for an ordinance “designating the time of holding said election, fixing the polling places of said election, appointing the judges and clerks to conduct said election, prescribing the form of ballot to be used” and directing the city clerk to give notice of the election. Finally following the usual procedure of motions and readings the bill was passed by a unanimous vote. The mayor declared the bill adopted as Ordinance No. 137, the formal notice of election was approved and ordered published. It is not necessary to set out in full the terms of the ordinance, the election submitting the $265,000 revenue bond issue was called for August 28, 1964, the notice published for three consecutive weeks in the Nixa Enterprise, the form of ballot was set forth in full with instructions to voters, two'voting places, for Ward One and Ward Two, were designated and two judges and clerks for each ward were appointed. The city clerk was directed to prepare the ballots and to procure poll books and tally sheets which he was to deliver to the judges of the election. On August 31, 1964, there was another special meeting of the board to canvass the results of the election, the clerk presented the returns from each ward, together with the certificates of the judges and clerks and the totals from the two wards were 365 votes for the bonds, 244 votes against the bonds and 6 void ballots, whereupon it was declared that the bonds were duly authorized. Thereupon Ordinance No. 138 declaring the result of the election and providing for a revenue bond issue of $265,000 was duly passed.

In these circumstances it is not necessary to attempt a definitive spelling out of just what statutes may or may not govern a revenue bond election in cities of the fourth class (see however Montague v. Whitney, Mo.App., 298 S.W.2d 461) for the reason that upon this record there was substantial compliance with § 79.030 relating to the election of officers in cities of the fourth class and for that there was also compliance with Chapter 95 relating to the financial administration of all cities, including §§ 95.130 to 95.405 which relate at least in part to general obligation bonds for electric light plants in cities of the fourth class. As indicated from the recitation of facts and from the arguments of the parties there was no general, permanent ordinance relating to revenue bond elections but as the record also shows the issue was submitted to the voters of Nixa by ordinances spelling out the details of the election procedure. And that procedure was adapted from if not copied from the following cases approving, against numerous objections, the elections and bond issues there involved, some of them for revenue bonds for municipally owned light plants. State ex rel. City of Fulton v. Smith, supra; State ex rel. City of Memphis v. Hackman (1917), 273 Mo. 670, 202 S.W. 7; Bauch v. City of Cabool, 165 Mo.App. 486, 148 S.W. 1003; State ex rel. Town of Canton v. Allen, 178 Mo. 555, 77 S.W. 868. A case cited by the appellants is almost squarely in point, Arkansas-Missouri Power Corp. v. City of Potosi, 355 Mo. 356, 196 S.W.2d 152. Al most identical claims were made in that case and the court concluded, “The issues presented strike at irregularities occurring in the conduction of that election; an election authorized by law and not, as plaintiffs contend, at an election unauthorized by law or vitiated by a failure to observe some mandatory prerequisite giving a court of equity jurisdiction.”

The appellants’ other assignment of error has to do with absentee ballots, the statutes relating to suffrage and elections in general contain this provision: “The official charged by law with printing and supplying ballots under the general election laws of this state, shall, at least thirty days before any election at which absentee ballots may be cast, cause to be printed and supplied a sufficient number of ballots to be designated as ‘official absentee ballots’ to be furnished such absentee voters.” V.A. M.S. Supp. § 112.030. The appellants “concede that this chapter has been construed as directory and not mandatory,” nevertheless, since the first notice was published August 6, 1964, and the election was August 28, 1964, and because absentee ballots were not in fact available until seven days before the election, it is said that the election “is void and a nullity.” To avoid the force of their admission that the statute is directory, the appellants take the position “that it is a question of law as to whether the Defendant 'City had substantially complied with the chapter on absentee ballots.”

There was testimony upon this subject, the city clerk who had charge of the printing of these ballots said, as to the reason they were not available, “I don’t know the reason. We didn’t get them back from the printer, but I don’t know why we didn’t.” She said that a few people inquired about absentee ballots, just a “general inquiry,” but she did not remember any specific persons inquiring. However, “all written requests” for ballots were filed, except for one lady and she died before the election, and she knew of no person denied the right to vote by reason of the unavailability of absentee ballots. No individual voter claimed to have been denied the right to vote, the only person testifying against the city was a lady worker “against the proposition that was to be voted on.” But even she knew of no one deprived of the right to vote due to the unavailability of absentee ballots 30 day before the election. Another worker against the bond issue knew of one person turned down for an absentee ballot, but she lived in another ward and had not lived in Nixa either “thirty days or ten days.” Another voter testified that “one lady that told me they’d been there 28 days, but they couldn’t — and I told them that they couldn’t vote because they had to be there 30.”

And then finally, upon this record, a case cited by the appellants is conclusive of the claims now advanced against the absentee ballots, State ex rel. School Dist. of City of Jefferson, Cole County v. Holman, Mo., 349 S.W.2d 945. There the court said, in part, “It is urged that the ballots cannot be furnished 30 days before an election which requires only 15 days’ notice. We rule that such failure on the part of officials to comply with the requirement of the statute to furnish absentee ballots 30 days before an election does not void an election. This requirement is directory and not mandatory. * * * Certainly, no one could successfully contend that an election otherwise regular could be set aside merely because an official failed to furnish absentee ballots 30 days before an election.” And then, after considering the subject .at some length, the court observed: “No contention is made in the case before us that anyone entitled to vote by absentee ballot was not given an opportunity to do so.”

At the conclusion of this case the trial court had this to say: “I think that the election was fairly held and the bonds were fairly voted, and I don’t believe that, in my opinion, the plaintiff has made a case to set aside the election * * *. The result was obtained, and the majority of the voters expressed their preference and I think that setting it aside would require more proof than we have in this case.” And in this connection see State ex rel. City of Memphis v. Hackman, 273 Mo. l. c. 696, 202 S.W. l.c. 14.

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.


author:
EAGER, Judge.
      STORCKMAN, Chief Justice

text:
    STATE of Missouri, Respondent, v. Douglas Wayne THOMPSON, Appellant,
    No. 51140.
    Supreme Court of Missouri, En Banc.
    Dec. 13, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Bill D. Burlison, Sp. Asst. Atty. Gen., Cape Girardeau, Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
    James B. Herd, St. Louis, for appellant.
   EAGER, Judge.

This defendant was convicted in December, 1961, of first degree murder and, upon a finding making our Second Offender Act applicable, he was sentenced by the court to be executed. At the trial he was represented by counsel of his own choice. Upon appeal, the judgment and sentence were affirmed. 363 S.W.2d 711. Generally, the points involved upon the appeal did not include those which confront us now. The crime of which defendant was convicted occurred in Cape Girardeau County; he was tried in' Bollinger County on a change of venue. The essential facts are stated in our former opinion. By sundry intermediate proceedings the execution of the sentence has been stayed.

On January 13, 1964, defendant filed in the trial court, acting through new counsel, his motion to vacate the judgment under our Rule 27.26, V.A.M.R. The court denied the motion without a hearing, from an examination of the files and record. On appeal this court, acting on its own motion, reversed the judgment and order and remanded the cause for a hearing upon specifically designated questions of fact raised in the motion. Upon disqualification of the regular judge, the Honorahle Marshall Craig was designated to hear the matter. He has done so in a lengthy and meticulously conducted hearing, has entered his findings, and has denied the motion. The matter is now here for a determination de novo on the merits upon the voluminous evidence presented.

We first digest, very briefly, the allegations of the motion, as amended. They are: (1) that the conviction was obtained through the willful use of perjured testimony on the part of Police Officers Robert Ross and Hugo Lang; (2) that the conviction was also rendered void, — (a) by the use in evidence of written and oral statements which were involuntarily made; (b) because defendant was denied effective assistance of trial counsel in that the latter did not require a showing of volun-tariness before permitting the statements of defendant to be received in evidence; (c) because the Prosecutor deliberately suppressed material evidence, namely, empty shells found at the scene of the shooting and a ballistic report concerning them, and also misled the jury in argument into believing that no such evidence was in the State’s possession; (d) in that defendant was denied a voir dire examination sufficient to determine the prejudices of the members of the jury panel, in view of the widespread publicity and the existing sentiment against him. The transcript proper consists of 466 pages; in addition, we have the transcripts of the original trial and of the coroner’s inquest (offered as exhibits), a supplemental transcript of additional parts of the trial proceedings, and scores of other exhibits. Although defendant was granted leave to appeal as a poor person with a free transcript furnished, we note that he was represented at the hearing and is now represented on this appeal by non-appointed counsel, and that his seventy-two page brief has been printed, which represents no inconsiderable expense. He certainly does not come here entirely as an indigent in the usual sense.

The trial court found: that there was no use of perjured testimony; that the statements made by defendant and introduced at the trial, both oral and written, were voluntary; that the voir dire examination was sufficient; that defendant was not denied the effective assistance of counsel; and that the movant failed to show that the Prosecutor had suppressed material evidence. In certain of these findings the court indicated its reasoning more particularly; we shall refer to some of these findings further in the body of this opinion.

As stated, the facts are rather fully set out at 363 S.W.2d 711. On the evening of March 10, 1961, two police cars had been pursuing a 1956 Oldsmobile driven by Sammy Aire Tucker with the defendant riding as a passenger, in the north part of Cape Girardeau; they stopped it on the shoulder. One police car stopped a few feet behind the Oldsmobile, the other turned around and stopped on the opposite shoulder. From the first car Officer Crit-tendon walked up beside the driver and began to question him, Officer Goss walked to a position opposite the rear window on the right side. Tucker, without warning, shot Officer Crittendon fatally in the stomach, and immediately began firing at the officers across the road; at almost the same instant shots were heard on the right side of the Oldsmobile, resulting in the death of Officer Goss whose gun was still in its holster. One shot went through both of his legs near the knees, severing arteries in both legs, and he died that evening from loss of blood. The present defendant was standing beside the passenger’s seat of the Oldsmobile at the time. Another officer, Lang, was somewhat to the rear. As indicated in our former opinion, there was ample evidence to support the conviction of this defendant for the murder of Officer Goss.

It is generally both difficult and disagreeable for a court to “rehash” the events of a criminal trial and conviction after such a lapse of time, particularly in collateral proceeedings, as here. And, certainly, the prolonging of such proceedings over a period of years usually works no good, either to our processes of justice, or to the regard in which those processes are held in the minds of the lay public or the Bar. Yet, so long as this mode of review is permissible, it is our solemn duty to consider and enforce it. In this background we have given this record a somewhat unusual amount of study.

We agree with the findings of the trial judge in all particulars but one. That, of course, proves vital. This point of disagreement is expressed in defendant’s brief in part as .follows: “ * * * that the prosecutor at the appellant’s trial deliberately suppressed and failed to disclose to the court or defense counsel material ballistic evidence in the possession of the state consisting of cartridge cases found at the scene of the shooting and in the appellant’s automobile.” In the argument which follows counsel emphasizes the misleading effect of the Prosecutor’s oral arguments to the jury. Various courts have held that the suppression of (or failure to disclose) evidence in the possession or control of the prosecution which is favorable to defendant and which might be persuasive to a jury, constitutes such a fundamental unfairness as to invalidate a conviction because violative of due process. Ashley v. State of Texas (CA5), 319 F.2d 80 (withholding of report of doctors that defendant was incompetent); United States ex rel. Thompson v. Dye (CA3), 221 F.2d 763 (withholding testimony tending to show that defendant was in such condition because of alcohol or drugs or both, as to be incapable of entertaining a specific intent or of deliberation); United States ex rel. Almeida v. Baldi (CA3), 195 F.2d 815, 33 A.L.R.2d 1407 (withholding of recovered bullets after murder in a store holdup); Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (withholding part of the true knowledge of a prosecution witness which might have directly affected the penalty); United States ex rel. Meers v. Wilkins (CA2), 326 F.2d 135 (withholding evidence that certain witnesses had been unable to identify defendant); Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (where the evidence withheld had been requested by defendant, but the court expressly adopted the rule stated in the Dye and Baldi cases, supra); and see generally, United States ex rel. Butler v. Maroney (CA3), 319 F.2d 622; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; State v. Belland, 59 Mont. 540, 197 P. 841. Wilkins, supra, rules expressly that a request for the disclosure is not a “sine qua non to establish a duty on the prosecution’s part.” These cases recognize that the principle is applicable where the suppressed evidence bears on the penalty which the jury would impose, even though the defendant, if convicted, would be guilty of first degree murder on the felony-murder doctrine. That particular feature is not in point here because the case was not submitted to the jury on the felony-murder doctrine but on the direct issue as to whether defendant shot and killed Officer Goss. The jury was charged to determine his guilt on that submission, either as first or second degree murder. Hence, any misleading of the jury here would affect the issue of guilt or innocence, if it had any effect at all, and the court ultimately fixed the penalty.

It has also been recognized that the suppression of evidence is exaggerated where the prosecution misleads the jury by some affirmative statement touching the subject. United States ex rel. Thompson v. Dye, supra; there the court said, 221 F.2d loc. cit. 769: “Here the prosecutor not only kept quiet about the existence of such testimony, but, as Judge McLaughlin points out, even stated in open court that other police officers if called ‘would corroborate what already has been testified to.’ Thus, the wrong of nondisclosure of obviously significant testimony was compounded by a misleading affirmative statement as to the nature of the available but unused testimony.” The subject is discussed in detail in articles appearing at 60 Columbia Law Review 858, and in 74 Yale Law Journal 136. In the latter it is indicated that the motive of the prosecutor is now not so material an element as is the disadvantage worked on the defendant (Dye-Brady, supra). We do not express entire approval of all conclusions of that author. Missouri has fully recognized that the knowing use of false testimony invalidates a conviction. State v. Eaton, Mo., 280 S.W.2d 63; State v. Eaton, Mo., 302 S.W.2d 866; State v. Statler, Mo., 383 S.W.2d 534. And in Statler, we held further that “This phase of the rule requires a prosecutor who knows at the trial that material false testimony has come in on behalf of the State to correct it then and there.” So far as we have found, we have not been required to rule specifically upon a withholding or suppression of evidence.

We review briefly the evidence affecting this question. The defendant testified at the trial: that he did not fire any shots (at all) on the occasion in question, and that he did not know that Tucker was going to shoot; that his gun, a Browning semiautomatic pistol, was in his waistband and remained there as he stood on the right side of the car with his hands raised; also, that his gun had no shell in the barrel (chamber). Both the Browning and a German Walther semi-automatic (which he said Tucker had) shot nine millimeter shells and ejected each shell when it was fired. The police revolvers did not eject expended shells. Defense counsel asked Officer Shannon Kelley if he had found any expended shells at the scene; he answered that he had looked but that he had not found any, and that he did not know whether anyone else had. In rebuttal Kelley testified that two holes were found in the roof of the Oldsmobile (just above the rear window) where bullets from the inside had passed through; that, by lining these up with a pencil, they pointed to the passenger’s side of the car. On the hearing of this motion it was shown that the officers (Cape Girardeau police or Highway Patrolmen or both) had recovered five nine-millimeter shell casings from the abandoned Oldsmobile, and that three similar shells were brought to the police by Ezra Crit-tendon, father of one slain officer, on the day after the shooting. A written police notation (received in evidence and obviously a part of the police files) stated that two of these three were picked up at the scene on the east side of the highway and one on the west side; that a Mr. Overall, in Mr. Crittendon’s presence, picked up the shells and gave them to him. These eight shells, with the sundry guns, ammunition, etc., were immediately forwarded to the laboratory of the State Highway Patrol; they were examined there in detail, and a report sent to the Cape Girardeau police. So far as we are concerned here, the material portion of this report stated that the three shells found in the road (as well as the other five) were all fired in the P-38 (Walther) semi-automatic pistol. This report was dated April 26, 1961. On June 2, 1961, the Chief of Police wrote the Highway Patrol Laboratory that he wished to have all the guns returned, but that “It is our belief now that expert testimony from the laboratory will not be used in this trial.” Some further explanation was made. The guns were produced at the trial, but no shell casings were produced and the report was not produced. In our prior opinion we noted that no “spent shells” were found.

The non-production of shell casings was argued by counsel at length and in detail at the conclusion of the trial, this obviously having become an issue. We quote as follows from the opening argument of the Prosecuting Attorney: “Mr. Kearby undoubtedly is going to harp about the fact that if there was a shot there must have been a shell casing. Well, I don’t know why there wasn’t a casing found. I suppose for the same reason that there weren’t any casings found from Tucker’s gun. Everybody runs out to the scene of the murder. Those shells are probably on some small boy’s shelf in a room, he is proud of them. That’s where they are. Maybe they are in the car, I don’t know. You’ll note that the gun ejected to the right. Maybe that’s where they are. I don’t know. But, wherever they are, they are at the same place that the shells from Sammy Tucker’s gun are. There weren’t any of those found either.”

Mr. Kearby (defense counsel) did argue that “They didn’t get any of those bullets, they didn’t get any spent shells * * *. Thompson said the shells were ejected. If he shot on the ground, the shells would have been on the ground, wouldn’t they ?*** Then you ask yourself this question — where did those spent shells out of the automatic go ? Why didn’t the officers take the bullets out of the car and have a ballistics expert from the Highway Patrol test them and see what gun they came from? * * * why didn’t they bring in these shells from this automatic, bring them in and show them to the jury? Why didn’t they bring those in? You are trying him on this case?” In concluding, the Prosecutor argued further: “Now, Mr. Kearby has, as I expected, had much to say because no shells were found. * * * You are not to decide this case upon what evidence might have been presented or what wasn’t presented. You must decide this case upon the evidence that was presented and if you find that the evidence is that Douglas Wayne Thompson shot Herbert Goss, the fact that there was or was not a shell presented is unimportant. You know perhaps as well as I do, I don’t know why the shells weren’t here. * * * Now, gentlemen, we have brought in all the evidence we have.”

At the hearing on the present motion, the trial Prosecutor testified that he had received and examined “a report” relating to some laboratory tests; that he had examined the police reports and that he knew the police had some shell casings that “other people said had been found out there”; that he would “guess” that the finding of shell casings would be a material circumstance. Generally, his testimony was very vague. It requires no great imagination to realize that the Prosecutor did, in a case of this notoriety, keep himself abreast of all such developments.

If we had here the mere failure of the prosecution to produce the shell casings and the ballistic report, we would have a materially different question. As stated in Dye, supra: “It seems likely that many situations will arise in which a prosecutor can fairly keep to himself his knowledge of available testimony which he views as mistaken or false.” Arguments could be made here to justify a mere non-production, such as — that the state was not bound by defendant’s testimony as to which gun he had, that defendant’s counsel should have attempted discovery by some available means (though criminal discovery in Missouri is rather limited), and that there was ample evidence in the record to convict defendant of the murder of Officer Goss. We do not rule this point on mere non-production. The situation was grossly exaggerated by the argument of the Prosecutor. Note here the similarity of our facts with those in United States ex rel. Almeida v. Baldi (CA 3), 195 F.2d 815, 818. We do not attribute any bad faith to the Prosecutor, nor do we need to do so; his statements were obviously made in the heat of the argument. But the statement, made in words or substance, that no shells were found, materially misled the jury. The fact, if shown, that all of the empty shells found on the ground and in the car had come from the Walther pistol, would have been substantially more corroboratory of defendant’s theory and testimony than was the mere failure to produce any shells. We hold that the non-production and the argument placed defendant in a constitutionally unfair position; for this reason, only, the judgment and sentence must be vacated.

Defendant has had a full hearing on the other points raised in his motion. In so far as they might conceivably be involved at another trial, whether in like form or in principle, we shall rule upon them. A final adjudication of such points forecloses their use in the future. State v. Shell, Mo., 299 S.W.2d 465, certiorari denied Shell v. State, 353 U.S. 967, 77 S.Ct. 1052, 1 L.Ed.2d 916, certiorari denied 356 U.S. 939, 78 S.Ct. 782, 2 L.Ed.2d 814; State v. Kitchin, Mo., 300 S.W.2d 420, certiorari denied Kitchin v. State of Missouri, 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1429; State v. Moreland, Mo., 396 S.W.2d 589, opinion filed November 8, 1965. We do not propose to leave any unnecessary “loose ends” in this matter which might prolong it further.

The first of such points is that the State used false and perjured testimony. Conceivably, a similar claim might arise from another trial. This contention is based upon the testimony of Officers Ross and Lang, counsel contending that their testimony at the trial was obviously false when compared with their testimony at the coroner’s inquest and with written statements given shortly after the affray and offered as exhibits. Officer Ross (in the police car just across the road) testified: that at the time Tucker shot from the driver’s side of the car, the man standing on the right side of the Oldsmobile pulled a gun from his waistband, “brought his arm up and there were two shots,” and he saw a flash on that side; that as the man whirled, the seat of the car prevented him from seeing the man’s hand; that Officer Goss (who had been facing the car) turned toward the man and yelled, “I’m shot,” then again turned as if to get away, and fell; that Officer Lang had been back of the car but had “made a run” to get out of the light. At the coroner’s inquest Ross, in a narrative manner, had testified that a man appeared on the right side of the car (whom he could see from the waist up) as the doors opened, and he heard shots on that side; that Goss said, “I am hit”; that he (Ross) then got down. In a written statement Ross had stated: that as Tucker shot Crit-tendon, the other man appeared on the right side of the Oldsmobile, and turned facing Goss; that his hand was concealed by the car but his right arm was pointing toward Goss, that he (Ross) heard two shots immediately after Crittendon was shot, heard Goss cry out and saw him fall. Such differences as may have existed between Ross’ trial testimony and his previous statements were at most mere inconsistencies, but generally they constituted a simple elaboration of his previously stated observations. The same is true of the testimony of Officer Lang. The supposed differences there concern the exact place where Lang was when the shooting started, and whether he was standing erect or either partially or wholly crouched down when he fired at the defendant. At the trial he testified that he had looked in the back of the Oldsmobile with a flashlight, that when the two men got out of it he was “coming around between the two cars,” that he heard shots, took a position on the right side of the patrol car and fired at the man standing on the right side of the Oldsmobile; that he then ducked across the highway; that he did not actually see defendant shoot; that so far as he recalled he was upright when he fired, later saying that he was positive of this. At the coroner’s inquest he had testified that he had looked in the back of the Oldsmobile, that he then came around between the cars to the right side of the patrol car, that the passenger (defendant) came out of the Oldsmobile and stood two or three feet from it and shots were fired, and “I went down” and got off two shots at that man on the right side of the Oldsmobile; that he then ducked behind the patrol car and crossed the road. Lang’s written statement was to the effect that he passed between the cars, that the passenger got out of the Oldsmobile, and he heard shots; that he fired two shots at that man, that (somewhere in that period) he “crouched down” at the side of the patrol car, and that he then crossed the road. At the hearing on the present motion Lang testified that he could not be certain of his exact location when he first heard the shots; that he fired at defendant as he (Lang) was in the process of crouching down; that the space between him and the defendant was clear when he shot; that no one had told him what to say in his testimony, and that in every instance he had told his story as he remembered it. Counsel argue the concealment at the trial of Lang’s supposed crouching position as important because, they say, Goss may have been shot at or near the knees by Lang. It is obvious that in such a confused and confusing situation the precise spot where one was standing at a given moment, and even his precise position, might well be a matter of uncertainty; the supposed conflict certainly did not rise to the status of knowingly false testimony. Counsel argue also that the divergencies in the testimony of these two witnesses were emphasized and exaggerated by the argument of the Prosecutor. What we have said covers that question fully; the argument was within the evidence and the fair inferences therefrom and did •not constitute a misleading of the jury. One basic misapprehension of counsel is his apparent opinion that a man standing erect (as defendant was) could not shoot a person at or near the knees, with the bullet’s course “slightly downward”; that all depends on the angle at which the person firing holds the pistol, and the level from which he fires it; there was evidence that defendant’s hand was below the top of the car seat when the first shots on that side were fired. The medical testimony showed that Officer Goss was shot from the right side, and the only person on his right, as he faced the car, was the defendant. The conviction was not obtained by the use of false or perjured testimony. We have considered all the cases cited by defendant and recognize the rules stated but, on their facts, they are inapplicable here.

We shall consider very briefly defendant’s contention concerning the admission of his oral and written statements. Counsel may seek to raise the question at another trial. Defendant’s evidence at this hearing of the supposed involuntary nature of the written statement, though not impressive, would have been sufficient to make a fact issue at the trial had it then been so given. It is extremely doubtful, to say the least, if the same is true of his oral statement made to Patrolman Crow. Although defendant testified at the trial, neither he nor his counsel made any claim whatever that the statements were involuntary and they undoubtedly proceeded on the theory that they were voluntary and that in some respects they were helpful to the defense. When the written statement was first identified, the Prosecutor tendered it to defendant’s counsel and suggested that the matter might require evidence “to the court,” thus essentially inviting a hearing; the court then took a recess. In other words, defendant and his counsel made a voluntary and studied election. Our cases of State v. Goacher, Mo., 376 S.W.2d 97; State v. Williams, Mo., 369 S.W.2d 408, and State v. Phillips, Mo., 324 S.W.2d 693, cited by defendant, fully recognize the principle that a confession induced by coercion is invalid (as do also the federal cases, some of which are cited), but they are wholly inapplicable to a situation such as this. We see no point in reviewing here defendant’s lengthy testimony concerning his interrogation, his hardships while fleeing from the law, and his supposed abuse when first arrested, all as given at the hearing on the present motion. It tends to leave the impression that it was developed largely as an afterthought. The trial court heard and considered this on the merits and also other testimony which was to some extent corroboratory. It also heard the evidence to the contrary. The defendant has now had the factual hearing which we held that he was entitled to. The trial court has found that the statements were voluntarily made, after hearing all the evidence; giving deference to that court on the matter of credibility, we agree and so find.

The foregoing point more or less merges into the contention that defendant was denied the effective assistance of counsel in that his counsel failed to require a determination of the voluntary or involuntary nature of the statements. Actually, neither the oral nor the written statement constituted a confession, for neither contained an admission of the crime charged. 31A C.J.S. Evidence § 270, p. 696. They were introduced as admissions against interest. Defendant did not admit in either statement that he had fired a shot on the occasion in question. Counsel (and defendant) apparently determined as a matter of trial strategy that the statements were as likely, or more likely, to be helpful than harmful. These are matters normally within the realm of counsel’s judgment and do not constitute acts of ineffectiveness entitling defendant to relief under Rule 27.26. It is hardly possible that this matter will arise again in any similar form, but we agree entirely with the detailed finding of the trial court that defendant was not thus denied the effective assistance of counsel. See generally: State v. Turner, Mo., 353 S.W.2d 602, 605; State v. Warren, Mo., 321 S.W.2d 705, 709; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, 789; Sheridan v. United States (CA 5), 264 F.2d 236; State v. Childers, Mo., 328 S.W.2d 43; State v. Rutledge, Mo., 317 S.W.2d 365. We have said in the past that proceedings under Rule 27.26 are not to be used or considered as a second motion for new trial or a second appeal. Childers, supra. The cases cited by defendant concern ing the deprivation of the effective assistance of counsel, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787; Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14; Brubaker v. Dickson (CA 9), 310 F.2d 30; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, and State v. Thompson, Mo., 363 S.W.2d 711, differ so upon their facts that we do not consider them further.

We shall spend no time or space upon defendant’s last contention, namely, that he was denied a voir dire examination sufficient to determine the prejudices of the members of the jury panel. The contention has been urged because of the wide publicity given to the matter in newspapers, radio and television. At another trial defendant’s counsel may conduct such further examination as he chooses. The trial court here leaned over backwards to excuse every venireman who thought that he was or might have been prejudiced by what he had heard or read. Section 546.150, RSMo 1959, V.A.M.S., applies directly to this situation, and the trial court has much discretion in deciding whether any opinion founded on “rumor and newspaper reports” is such as to “prejudice or bias the mind of the juror.”

We have perhaps unduly lengthened this opinion with a discussion of points which may not arise at another trial. In an abundance of caution, this has been done in the hope of terminating this cause at some early date, as it has already been unduly prolonged. The court remands the case with great reluctance. We note here that the defendant is now under life sentence upon conviction of murder in Butler County; the appeal taken from that judgment was dismissed on February 11, 1963.

The judgment of the trial court denying defendant’s motion to vacate is reversed for the reasons specifically stated herein; the original judgment of conviction and sentence are vacated and set aside, and the cause is remanded to the Circuit Court of Bollinger County for a new trial. Defendant will remain in the custody of the Department of Corrections until taken under appropriate process for retrial.

HYDE, HOLMAN, HENLEY, FINCH and DONNELLY, JJ., concur; STORCK-MAN, C. J., concurs in result in separate concurring opinion filed.

STORCKMAN, Chief Justice

(concurring in result only).

The limited examination I have been able to make of the law and the evidence in the time available inclines me to the following beliefs.

1. The rules announced in the principal opinion are broader than necessary for the disposition of the case and appear to impose a greater duty of disclosure on the prosecution than any decision thus far rendered by the Supreme Court of the United States.

2. In any event, the instant case can properly be decided on the narrower proposition, recognized by Missouri law, that a conviction may be set aside and a new trial awarded where the state has knowingly used false or perjured evidence.

3. Since the death penalty was imposed by the trial court under the Habitual Criminal Act, § 556.280, RSMo 1959, V.A.M.S., a determination should be made whether the rehearing should be limited to the issue of punishment and not the question of guilt which was determined by the jury.

The principal rule which I believe to be too broadly stated is as follows (Op. 700): “Various courts have held that the suppression of (or failure to disclose) evidence in the possession or control' of the prosecution which is favorable to defendant and which might be persuasive to a jury, constitutes such a fundamental unfairness as to invalidate a conviction because violative of due process.” Out of context, this imposes on the prosecutor the duty of determining what evidence or information he has favorable to the defendant and persuasive to the jury at the risk of having a conviction set aside if he does not make a disclosure. I doubt if the statement of the rule by the Supreme Court of the United States is that extensive.

The opinion cites various federal court cases but the' decisions of the Supreme Court which are most recent and seem most applicable are Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9, and Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.

In Alcorta v. State of Texas, the defendant was convicted of killing his wife by stabbing and was sentenced to death. He admitted the killing but claimed it occurred in a fit of passion when he discovered his wife, whom he had suspected of infidelity, kissing one Castilleja late at night in a parked car. Under Texas law, a killing in a fit of passion due to adequate cause would be murder without malice, punishable by a maximum sentence of five years’ imprisonment. Castilleja in fact had had sexual intercourse with the defendant’s wife five or six times shortly before her death. He gave this information to the prosecutor who told him not to volunteer the information about the intercourse but if specifically asked to tell the truth. At the trial Castil-leja, the only eyewitness to the killing, testified for the state in substance that he and the defendant’s wife were not in love with each other, that they had never talked about love, that he had never had any dates with her except to bring her home a couple of times, that on the night she was killed he had driven her home and was parked in front of her house at 2 o’clock in the morning because of engine trouble. His testimony gave the impression that his relationship with her had been nothing more than that of casual friendship. Sometime after the defendant’s conviction had been affirmed, Castilleja “issued a sworn statement in which he declared that he had given false testimony at the trial.” 355 U.S. at p. 30, 78 S.Ct. at p. 105. In its Per Curiam opinion, the Supreme Court of the United States gave its ruling and decision as follows: “It cannot seriously be disputed that Castilleja’s testimony, taken as a whole, gave the jury the false impression that his relationship with petitioner’s wife was nothing more than that of casual friendship. This testimony was elicited by the prosecutor who knew of the illicit in-tef course between Castilleja and petitioner’s wife. Undoubtedly Castilleja’s testimony was seriously prejudicial to petitioner. It tended squarely to refute his claim that he had adequate cause for a surge of ‘sudden passion’ in which he killed his wife. If Castilleja’s relationship with petitioner’s wife had been truthfully portrayed to the jury, it would have, apart from impeaching his credibility, tended to corroborate petitioner’s contention that he had found his wife embracing Castilleja. If petitioner’s defense had been accepted by the jury, as it might well have been if Castilleja had not been allowed to testify falsely, to the knowledge of the prosecutor, his offense would have been reduced to ‘murder without malice’ precluding the death penalty now imposed upon him.” 355 U.S. at pp. 31-32, 78 S.Ct. at p. 105. The judgment denying the petition for a writ of habeas corpus was reversed and the cause remanded for further proceedings. On its facts, the Alcorta case does not necessarily go beyond the rule that a trial is constitutionally unfair when false and misleading testimony is knowingly used.

In Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, the defendant was convicted of murder in the first degree and sentenced to death. At his trial he admitted participating in the killing but claimed his companion did the actual shooting. In his summation to the jury, defendant’s counsel conceded that the defendant was guilty of murder in the first degree and requested only that capital punishment be not imposed. Before trial the defendant’s counsel had requested the prosecution to permit examination of extrajudicial statements of the defendant’s companion. Several were exhibited; but one in which the companion had admitted the actual killing was withheld by the prosecution and did not come to the defendant’s notice until after his conviction had been affirmed. In a post-conviction proceeding, the Maryland Court of Appeals, 226 Md. 422, 174 A.2d 167, held that the suppression of the evidence by the prosecutor denied the petitioner due process of law. It remanded the case for a new trial on the question of punishment alone since it was of the opinion that nothing in the suppressed confession could have reduced the offense below murder in the first degree. On certiorari the Supreme Court of the United States held that the defendant had not been denied a federal constitutional right when his new trial was restricted to the issue of punishment and the judgment was affirmed. The opinion of the Supreme Court reviewed the evolution of the rule from the use of perjured testimony through the stages of suppression of favorable evidence and allowing false evidence to go uncorrected to the one presently applicable as follows (373 U.S. 87, 83 S.Ct. 1196) : “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Emphasis supplied. On the facts of this case and under these decisions of the United States Supreme Court, further statements on page 700 of the opinion seem broader than necessary.

On the facts set out in the present opinion and the prior opinion reported in 363 S.W.2d at 711, it appears that this appeal can properly be disposed of without any extension of the rules announced in these cases cited in the principal opinion: State v. Statler, Mo., 383 S.W.2d 534; State v. Eaton, Mo., 302 S.W.2d 866, and State v. Eaton, Mo., 280 S.W.2d 63. From the statement of facts of the previous appeal, it appears that: “A search was made at the scene of the shooting for bullets and spent shells, but none were found.” 363 S.W.2d 714. This is an affirmative representation which now appears to be false in view of the statement in the present opinion that on the day following the killing two cartridge cases were found on the east side and one on the west side of the highway, and five were later found in the abandoned automobile used by the defendant and Tucker. The prosecutor knew, if the witness did not, that the testimony at the trial was not true and under the rule of State v. Statler the prosecutor was obligated “to correct it then and there.” 383 S.W.2d 537. See also Brady v. State of Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215. Such a correction would have led to a disclosure of all events connected therewith including the ballistic tests.

Whether the undisclosed evidence was material and hence prejudicial would depend on whether the defendant had the Browning automatic in his possession and not a revolver which did not eject spent shells, and whether the Walther automatic was used only by Tucker. The defendant is the only living person who knows what gun he had and whether he fired it. It was admitted that the defendant had a gun and there was direct evidence that he fired it. The evidence that all of the spent shells found at the scene and in the automobile came from the Walther gun would not have erased this direct evidence and exculpated the defendant. Some of the ejected shells from the automatic fired outside may have landed in the car, and there can hardly be any doubt that any shots fired from inside the car during the getaway were fired by the defendant and not by Tucker who was driving. On the facts shown by the opinions, I am not persuaded that we should hold that the defendant has demonstrated that he was deprived of a fair trial because of the state’s failure to disclose the finding of the spent shells and the results of the ballistic tests. The undisclosed evidence only tended to prove that the Walther gun was fired at the scene of the crime. It did not tend to prove or disprove that the defendant had that gun in his possession, that he did not fire it, or that the gun he had did not eject shells. It did not tend to refute the state’s evidence that the defendant fired a gun or support the defendant’s contention that he did not. The statements of the prosecutor to the jury and his argument based on the assumption that no spent shells were found were improper and are not to be condoned, but standing alone they can hardly be said to deprive the defendant of a fair trial in view of the evidence in the case. The comments are more in the nature of trial errors reviewable on appeal.

Even if the combination of the failure to correct false or untrue testimony plus the prosecutor’s argument based thereon were held to spell out a constitutionally unfair trial violating due process of law, it does not follow that the judgment of conviction should be set aside and a new trial granted on all issues. The crime involved in Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, was murder committed in the perpetration of a robbery for which the punishment was life imprisonment or death. The jury could restrict the punishment to life imprisonment by adding to its verdict the words “without capital punishment” which the jury did not do and the death penalty was assessed. The Maryland Court held the suppression of the confession of defendant’s companion that he fired the shot on which the murder charge was based could not have reduced Brady’s offense below first-degree murder and limited the retrial to the issue of punishment. The action was affirmed by the United States Supreme Court on the theory that the holding was a ruling that the confession would not have been admissible on the issue of guilt or innocence. This raises the question whether any possible new trial in the present case could properly be so limited. If the state had offered the evidence in question, it might have been excluded if the defendant had objected on the ground it was immaterial unless the state also showed that the defendant had possession of the Walther gun. If offered by the defendant, it is doubtful that the trial court would have been convicted of error in excluding it on the theory that it did not prove the defendant did not fire a shot or substantially corroborate his contention that he did not. At most it would have been corroborative evidence in which area the trial court has some discretion regarding its admissibility.

As stated, my view is that the majority opinion goes beyond what is required by the Supreme Court of the United States. I do not deem it advisable to try to keep pace with the various United States Courts of Appeals because they have differed in the application of the rules of law just as the state courts have. I doubt if any decision of the Supreme Court of the United States compels the result reached by the majority opinion.

Nevertheless, in view of the aggregate facts and circumstances shown by the evidence and by applying a narrower and better established rule, I can agree with the ultimate holding of the majority opinion that the defendant was deprived of a trial consistent with due process of law, but I do not subscribe to the broad rules announced in reaching that result.

Therefore, I concur in the result only.


author: HOUSER, Commissioner.

text:
    Daniel K. NAGLE, Appellant, v. Monnie DREW et al., Respondents.
    No. 51221.
    Supreme Court of Missouri, Division No. 1.
    Dec. 13, 1965.
    Mogab & Hughes, by Richard L. Hughes, St. Louis, for appellant.
    David G. Dempsey, Lloyd E. Eaker, Eaker, Dempsey, Zerman & Dempsey, Clayton, for respondent, Oliver Wade.
    Luke, Cunliff, Wilson, Herr & Chavaux, by Robert R. Schwarz, St. Louis, for respondent Aetna Cas. & Sur. Co.
   HOUSER, Commissioner.

This workmen’s compensation claim was denied by the referee. The Industrial Commission affirmed the decision of the referee. The Circuit Court affirmed the Industrial Commission’s award of no compensation. Claimant has appealed from the judgment of the Circuit Court.

Appellant asserts that we have jurisdiction because the amount in dispute exceeds $15,000 on the basis that at the time of the hearing before the referee appellant had incurred medical expenses of $11,947.50 and that compensation of “approximately $4,322.50” was then due him, at the rate of $47.50 per week.

The record must affirmatively show that an amount in excess of $15,000 is in dispute for this court to be vested with jurisdiction on that ground. Although the record shows that at the time of the hearing before the referee medical expenses in the sum of $11,947.50 had been incurred it does not show, directly or indirectly, that compensation in the sum of $4,322.50 was then due claimant. Appellant’s jurisdictional statement that “Compensation due at the time of the hearing at the rate of $47.50 per week was approximately $4,322.50 (T. 12)” is not borne out by the transcript at page 12 or elsewhere.

The only pertinent testimony given by claimant Daniel K. Nagle on the subject is that he had been employed by Monnie Drew as a truckdriver and in other capacities “for about one month * * * practically steady * * * practically every day * * * on the average three or four days a week * * * five days a week * * * [at the rate of pay of] Two and a quarter an hour.” Claimant did not testify as to the number of hours per day he worked. Apparently that varied. On cross-examination he conceded that he worked off and on and not day by day or “steady”; sometimes only part of a day and some days, depending on weather and whether Drew had jobs, not at all. For painting he was paid $10 a day and the same amount per day “for moving the rig.”

Monnie Drew, the alleged employer, testified that claimant Nagle was not working for him on the premises where the injury occurred on July 31, 1961 and that Nagle had not been working for him there at any time after Drew commenced work on that job on July 28, 1961. He testified that Nagle had worked for him at the rate of $2 per hour during July, 1961 on other jobs at other locations, as follows: as a truckdriver on a job on Olive Street Road for three days; as a truckdriver on Natural Bridge, for two days; and at Drew’s house, doing painting work, on three days; that this was the total amount of work that Nagle had done for Drew. As far as hours are concerned Drew’s records showed merely that during the week preceding July 31, 1961 Nagle worked 2 hours on Wednesday, 8 hours on Thursday, 2 hours on Friday and 5 hours on Saturday. The records of actual days or hours worked other than that week were not shown.

Where as here the injured person has not been engaged in the employment of the same employer for the full year immediately preceding the accident compensation is to be computed according to the annual earnings which persons of the same class in the same employment and same location have earned during such period, § 287.250(3), but there is no such evidence in this record. Nor can the annual earnings or average daily earnings be computed under § 287.250(4 or 5) for lack of evidence in this record.

The commission found that claimant sustained “grievous injuries” but made no finding as to their nature and extent, or the amount of the weekly wage or any other facts which might bear upon the size of the award. There was testimony that claimant is paralyzed as a result of the injuries and can never walk again and that his condition is permanent. If claimant sustained permanent total disability his compensation would be calculated under § 287.-200 (% of average earnings as computed under § 287.250 during 300 weeks, but not less than $16 nor more than $47.50 per week, and thereafter on the basis of 40% of the average earnings, for life, but not less than $18 nor more than $30.50 per week), but there was no finding below that claimant sustained permanent total disability. In a proper case, where there is a finding of permanent total disability and no evidence of annual earnings or average daily earnings (making a computation under § 287.250 possible) it could be argued that jurisdiction could be pieced out by calculating the amount of compensation due on the basis of the minimum allowance under the statute, $16 per week, and adding that figure to the medical expense accrued. This would be of no avail here. It is the amount in dispute at the time of appeal that counts. Snowbarger v. M.F.A. Central Cooperative, Mo.Sup., 317 S.W.2d 390 [2]. The appeal was taken not more than 161 weeks after the injury. 161 times 16 is 2,576. $2,576 added to the medical expense figure of $11,947.50 would not raise the amount to the jurisdictional figure of $15,000.

Accordingly, the cause is ordered transferred to the St. Louis Court of Appeals.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.