author: BARRETT, Commissioner.

text:
    Orville NEWMAN, Guardian of the Estate and Person of Terry Newman, a Minor, Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.
    No. 49673.
    Supreme Court of Missouri, Division No. 2.
    July 18, 1963.

      James M. Reeves, Ward & Reeves, Caruthersville (Ernest D. Grinnell, Jr., Wm. Bruce Kopper, St. Louis, of counsel), for appellant.
    Charles E. Gray, James W. Jeans, Gray & Jeans, St. Louis, Bradley & Noble, John W. Noble, Charles Cable, Kennett, for respondent.
   BARRETT, Commissioner.

This is an' appeal by the Frisco Railroad from a $225,000 verdict for personal injuries in favor of Terry Newman, age 11.

Before considering the merits of the appeal some preliminary observations are necessary to precisely point up the issues involved and to place in context the only questions raised by the railroad, the giving and refusal of certain instructions and whether the verdict is excessive. In view of these specifically raised questions it stands admitted (almost necessarily in view of the circumstances) for the purposes of this appeal that there was a breach of duty, that a negligently operated train ran over and injured Terry and that he was not guilty of contributory negligence. On the other hand, this was not a res ipsa loquitur case (“Res ipsa loquitur as ground for direction of verdict in favor of plaintiff.” 153 A.L.R. 1134), the evidence was virtually all oral and for reasons inherent in the jury system (Schroeder v. Chicago & Alton R. Co., 108 Mo. 322, 327, 18 S.W. 1094, 1095, 18 L.R.A. 827, Terry was not entitled to a directed verdict thereby rendering immaterial any errors in the giving and refusal of instructions. It is only in the most exceptional instances, solemn admissions of counsel or a written stipulation of facts (Magoffin v. Missouri Pacific R. Co., 102 Mo. 540, 15 S.W. 76), that a plaintiff in a negligence action is entitled to a directed verdict. Fisher v. Williams, (Mo.) 327 S.W.2d 256, 259; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558. And in this connection it must be noted that many of the cases cited by the parties have to do with the substantive rules of law, several of them automobile collision cases involving adults and contributory negligence or the humanitarian doctrine, and are therefore less than helpful. Furthermore, in view of the hundreds of cases involving railroads, including the numerous instances of children injured while playing, walking or sitting on railroad tracks, these cases are not particularly persuasive even in so far as they are purportedly cited as announcing general rules with respect to instructions. But if certain rules of substantive law are necessary to an understanding of the problems raised upon this appeal the following authorities, not cited by the parties, have been consulted thus placing in proper context the objections to instructions. “Railroad’s duty to children walking longitudinally along railroad tracks or right of way.” 31 A.L.R.2d 789; “Contributory negligence of children.” 107 A.L.R. 4; “Failure of train employee to discover in time to avert accident that object seen on or near track is human being, as negligence.” 70 A.L.R. 1116; “Duty and standard of care, with respect to contributory negligence, of person with physical handicap, such as impaired vision or hearing, approaching railroad crossing.” 65 A.L.R.2d 703; and, “Contributory negligence of adult struck by train while walking or standing beside railroad track.” 63 A.L.R. 2d 1226.

In any event, in view of the railroad’s tacit admissions with respect to liability only the barest statement of facts is required. Terry, a mentally retarded boy, also suffering epilepsy, lived with his parents about a mile and a half east of Senath. Their home is 187 feet from the Frisco’s Leachville branch-line tracks and about 50 feet from a dirt road. On the afternoon of July 7, 1961, Terry was sitting on the east rail of the tracks, 20 to 25 feet beyond the dirt road crossing. His back was to the south, his feet extending between the rails and, according to the fireman, he was making “a slight movement. * * * Just a little bit of a weave forward and backward.” About 1:55 o’clock the Frisco’s Leachville twice-a-week local freight train, traveling north, ran over Terry as he sat on the rail. The speed of the train as it whistled at the “signal board” eight and a half poles (the poles are 172 to 182 feet apart) from the crossing was 25 miles an hour. There are photographs, precise measurements and detailed testimony as to distances, speeds, and all the circumstances, but here it is only necessary to say that while the engineer sounded the bell and whistle the fireman, when the train was “Around four and one-half poles or a little over, I guess” from the crossing, saw Terry sitting on the rail and yelled at the engineer and “told him there was a little boy up there on the railroad tracks.” In response the engineer “started blowing the whistle in short blasts * * and then he got a little air,” but he did not make an emergency application of the brakes. When the train was 50, 55 or 60 feet away Terry, for the first time, “looked at us” but did not move or change position. The brakes were thrown into emergency, according to the fireman, when the locomotive was two and one-half to three poles from Terry. The train, consisting of the engine, four cars and a caboose, stopped with 16 feet of the caboose on the crossing. At a speed of 25 miles an hour it could have made an emergency stop in 132 to 160 feet. In these briefly noted circumstances the factual issues to be resolved by the jury were indeed very simple and the railroad’s negligence and consequent liability all but undeniable. Jett v. Central Electric Ry. Co., 178 Mo. 664, 77 S.W. 738; Fiedler v. St. L. I. M. & S. Ry. Co., 107 Mo. 645, 18 S.W. 847; Chamberlain v. Missouri Pacific R. Co., 133 Mo. 587, 33 S.W. 437, 34 S.W. 842; Reardon v. Missouri Pacific R. Co., 114 Mo. 384, 21 S.W. 731. As the court said in another instance of a train running over a boy age 10, “if they see a child of tender years upon the track * * * they have no right to presume that he will get out of the way, but should act upon the belief that he might not, or would not, and they should, therefore, take means to stop the train.” Riley v. Missouri Pacific Ry. Co., 68 Mo.App. 652, 661. It is in the context of this easily understood, simple factual situation that prejudicial error in the giving and refusal of instructions is to be determined.

The railroad’s principal attack is directed at instruction 5, the plaintiff’s main instruction. After setting forth the duty of the railroad "after discovering Terry Newman sitting on the rail of the track” (emphasis supplied of course), the instruction told the jury that if they found that “Terry was and remained seated upon the east rail of the railroad track and that as the defendant’s locomotive approached from the south the defendant’s engineer saw and continued to see Terry Newman seated upon the track and that as the locomotive approached and the plaintiff remained in such position, there arose a reasonable likelihood of harm to the plaintiff and danger to him, and that thereafter the defendant’s engineer, by the exercise of ordinary care, could have stopped the locomotive and have avoided injury to the plaintiff but that he failed to do so, and if you find that in so failing defendant’s engineer was negligent and if you further find that plaintiff sustained injuries as a direct result of such negligence” the verdict should be in his favor.

It is said as the first of four assignments directed against this instruction that it is erroneous with respect to the engineer’s duty to stop the train in that it omitted from its hypothesis certain other or additional matters shown by the plaintiff’s evidence; to wit, that “Terry was mentally retarded, an epileptic, the rate of speed of the train, the location of the train when crossing signals were started, the location of the train when the object was seen on the track, where it was when it was discovered that there was a human being on the track, the sounding of alarm signals, the setting of the emergency brakes, the ability of the engineer to stop the train after the engineer saw Terry was not going to remove from the tracks.” In the first place, except perhaps abstractly as to warning, in neither refused instructions B, C, D and E, nor for that matter in any other instruction, did the railroad offer an instruction including or concerning any of these evidentiary details, (Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496), many of which were not essential in so far as the basic theory of this case is concerned. In the second place, of the twelve cases cited in support of this assignment of error the first nine are automobile collision cases, some having to do with “abstract statements” in instructions, one on omitting “blowout” (Kitchen v. Pratt, (Mo.App.) 324 S.W.2d 778), but of the cases “principally relied on” (Sup.Ct. Rule 83.05(a), V.A.M.R.), the first, fourth and fifth are not cited in the argument section of the appellant’s brief and of course the purpose of their citation is unknown. The tenth case, also not cited in the argument, is a railroad case but there controverted facts essential to the plaintiff’s theory of recovery were omitted from the principal instruction and that of course was prejudicially erroneous even in a F.E.L.A. case. Fitzpatrick v. St. Louis-San Francisco Ry. Co., Mo., 300 S.W.2d 490. The eleventh and twelfth cases are railroad cases and in many respects bear upon the substantive rules of law involved here but they are not concerned with instructions. It so happens, except for also including signals, that instruction one in Carrier v. Missouri Pacific Ry. Co., 175 Mo. 470, 478, 74 S.W. 1002, 1004, (the eleventh case), is almost identical with instruction 5 here. There was no evidence, however, that the train crew saw the deceased and in that case and in Maloy v. Wabash, St. L. & Pac. Ry. Co., 84 Mo. 270, adults, both hard of hearing and one “decrepit” at age 60, were held to be guilty of contributory negligence as a matter of law. The railroad offered no instruction as to Terry’s retarded mental condition (compare Candee v. Kansas City & Independence R. Co., 130 Mo. 142, 31 S.W. 1029, Jackson v. Kansas City, Ft. S. & M. R. Co., 157 Mo. 621, 645, 58 S.W. 32, 39) and in contending that the court erred in refusing its instructions B, C, D and E inconsistently argues that “Neither does the fact that Terry was mentally retarded and an epileptic change the rule of law applicable.” But, as indicated at the outset, this appeal is not concerned with the substantive law, including contributory negligence, and as to the railroad’s first objection it is sufficient to say that the cases relied on do not demonstrate that instruction 5 is prejudicially erroneous.

The second and third objections to instruction 5, and essentially the same problem is involved in the railroad’s refused instructions B, C, D and E, is the assertion that it imposed an absolute duty to stop the train on the first appearance of danger “without submitting to the jury that the first duty of the engineer was to give warning signals and it only thereafter became his duty to stop the train as it became apparent that Terry did not heed the signals.” Or the third objection couched in this language “(t)he instruction failed to submit the right of the engineer to assume that sóunding of alarm signals would be sufficient to cause Terry to move off the rail, and that the duty to stop the train would not arise until it became apparent that Terry was not going to heed the signals.” Throughout its brief, for illustration in connection with refused instruction C, it is said that “if the engineer and fireman exercised ordinary care in giving a warning to Terry and if after giving such warning it did not become apparent to the engineer and fireman that Terry was not going to heed said warning until such time as they were unable to bring the train to a stop before striking Terry, then the issues should be found for the defendant.”

Again, the cases concerning adults and the substantive law, including the humanitarian doctrine, add nothing to the argument. In the first place there is no basis for the repeated assertion that in any and all instances of persons on its tracks the railroad has a right and has discharged its duty if it first signals by bell and whistle and thereafter it is too late to stop and no case cited by the railroad so holds. Furthermore, as indicated in connection with the substantive law, it was the theory and supported hypothesis of instruction 5 here that “The engineer in this case saw the plaintiff ; warned him by a danger signal; saw him fall; says he thought he was drunk; and says he himself was cool, and not excited. Under such circumstances, the law did exact, as ordinary prudence, that he should use all means in his power, consistent with his own safety, and that of his train and passengers or crew, to prevent killing plaintiff. This much the instruction demanded, and no more, as we read it.” Reardon v. Missouri Pacific Ry. Co., 114 Mo. 1. c. 404, 21 S.W. 1. c. 736; Annotation 31 A.L.R.2d 789, 799. As the same judge subsequently said for the court en banc, “The engineer is not required to stop his train if the trespasser is far enough away to warn him; and a timely warning is sufficient until it is seen that, for some cause, it is not heeded. Then it is his duty to avoid killing, even a trespasser, if, by the exercise of ordinary care, it can be done." Chamberlain v. Missouri Pacific R. Co., 133 Mo. 587, 605, 33 S.W. 437, 34 S.W. 842.

It is not necessary to illustrate in further detail that refused instructions B, C, D and E were either incorrect statements of law or hypothesized a factual situation not supported by the record or not applicable as applied to the basic theory of this case. Even as to a young man 18 the court has said, “The facts do not sustain the instruction offered by the appellant that the enginemen had a right to assume that the respondent, while on the track, would exercise reasonable care for his own safety. * * * The respondent was oblivious of his peril, a fact which seems to be conceded as the appellant has him lying on the track instead of sitting on the rail. Clearly the trial court was correct in refusing the instruction.” Yakubinis v. Missouri-Kansas-Texas R. Co., 345 Mo. 943, 948, 137 S.W.2d 504, 505-506. As to all of these particular assignments “The criticism upon the three instructions receives its strength from attacking them in detail.” Reardon v. Missouri Pacific R. Co., supra. For the indicated reasons and in the circumstances of this record, instruction 5 was not preju-dicially erroneous and the court did not err in refusing to give instructions B, C, D and E.

The court gave instruction 3, a conventional burden of proof instruction, and in addition the plaintiff offered and the court gave instruction 7, relating to the same subject: “With reference to the burden of proof being placed upon plaintiff, you are instructed that if you find in his favor by a preponderance of the greater weight of the credible evidence under instruction No. 5, then you are instructed that he has met and carried the burden of proof placed upon him.” In the circumstances of this case “we cannot comprehend the purpose of plaintiff in asking” (Reardon v. Missouri Pacific R. Co., supra) this as well as other instructions. Nevertheless, the problem is whether the giving of the instruction was manifestly erroneous and prejudicial entitling the railroad to a new trial, that is whether it improperly shifted or placed the burden of proof, relieved the plaintiff of some essential burden or was ambiguous, confusing or misleading so as to misdirect the jury. Davis v. Kansas City Public Ser. Co., (Mo.) 233 S.W.2d 679, 681-682.

Citing only Knipp v. Mankin, (Mo.) 336 S.W.2d 371. the appellant contends that instruction 7 "modified and diluted the burden of proof” required in instruction 3 and thereby was misleading and confused the jury. In the first place there are some very significant differences in language, purpose and effect in instruction 7 and instruction 4 in the Mankin case. An important distinction, one emphasized by the court, was that there the instruction said "if you believe and find from the credible evidence in favor of plaintiff.” There, as the court pointed out, the additional instruction in terms purported to explain the meaning of the other burden of proof instruction, in effect superseded it and eliminated it from consideration. Here instruction 7 does not refer to instruction 3 and does not purport to explain it — it merely says that if by the preponderance or greater weight of the evidence the jury finds in favor of plaintiff “under instruction 5,” the principal instruction, he has met and carried his burden of proof. Furthermore, the burden of proof was not as a matter of fact an important issue in this case, it did not have the significance that it does in res ipsa loquitur. Williams v. St. Louis Public Ser. Co., 363 Mo. 625, 253 S.W.2d 97. The instruction here is not the “complement” (Lanasa v. Downey, (Mo.App.) 201 S.W.2d 179) of another instruction and it is not “the burden of proof in converse,” (Venditti v. St. Louis Public Service Co., 362 Mo. 339, 240 S.W.2d 921) as plaintiff’s counsel may have had in mind when it was drafted. It is not claimed that it is an incorrect statement of law, it was cautionary and in some degree discretionary and the trial court has given consideration to its possible prejudicial effect. Davis v. Kansas City Public Ser. Co., supra. In several instances, most recently in Boll v. Spring Lake Park, Inc., (Mo.) 358 S.W.2d 859, it has been held that almost identical instructions were not prejudicially erroneous. Lanasa v. Downey, supra; Venditti v. St. Louis Public Service Co., supra; Williams v. St. Louis Public Service Co., supra; and Rasp v. Baumbach, (Mo.) 223 S.W.2d 472.

Instruction 6 told the jury that if the railroad was found negligent as submitted in instruction 5 “then the court instructs you that even if any conduct of plaintiff, or acts or omissions of his parents directly contributed to his own injuries, that would be no defense to the charge submitted to you in instruction 5.” Again, as with instruction 7, in the circumstances of this case it is difficult to imagine what counsel had in mind and why they would hazard the giving of these entirely useless instructions. Fortunately for Terry, however, the problem again is whether the instruction is manifestly erroneous and prejudicially unfair to the appellant. In addition to the cases cited in its objections to instruction 5 the railroad relies on but two cases, the unique humanitarian doctrine case of Chastain v. Winton, 347 Mo. 1211, 152 S.W.2d 165, and the F.E.L.A. case, Berry v. St. Louis-San Francisco Ry. Co., 324 Mo. 775, 26 S.W.2d 988. Among other things it was held in the Chastain case that the defendant’s withdrawal instructions of speed and lookout were prejudicially erroneous because they may have misled the jury into believing that they could not consider the taxicab’s speed after Chastain came into a position of peril. In the Berry case it was held that there was no error in the court’s refusal to give withdrawal instructions which would have been confusing because they “affect (s) an assignment of negligence properly submitted to the jury.”

As stated in another connection, there is no claim here that Terry was guilty of contributory negligence, the railroad offered no instructions on the subject and it was not in fact an issue upon the trial of the cause. But more important, in view of the objection implied from the citation of the two cases, is the fact that instruction 6 does not specifically withdraw any conduct, it simply says that if the hypothesis of ■instruction 5 is found Terry’s conduct or that of his parents is no defense. This instruction could be considered at length but in Kleinlein v. Foskin, 321 Mo. 887, 899, 13 S.W.2d 648, 653, there was a much stronger direction, it was considered at length and the court held that the giving of the instruction was not reversibly erroneous : “We have given careful and thoughtful consideration to the several grounds of criticism laid against the plaintiff’s instruction numbered 2, and we have reached the conclusion that no harm or prejudice was occasioned to appellant by the instruction, and that it is improbable that the jury could have been confused or misled thereby, and hence we hold that the giving thereof does not constitute reversible error in the instant case and upon the present record.” (321 Mb. 1. c. 904, 13 S.W.2d 1. c. 656.

Instruction 10 concerns the measure of damages and there is an objection to its form, that “(l)arge bold faced type was used in drafting the instruction, as contrasted with ordinary type used in the verdict directing instruction No. 5 which unduly accentuated and emphasized the issue of damages over that of liability and magnified and unduly emphasized the amount of damages.” The only case cited in support of this assignment is the second appeal of Fitzpatrick v. St. Louis-San Francisco Ry. Co., Mo., 327 S.W.2d 801, 80 A.L.R.2d 825, and its dramatic but manifestly inflammatory episode of a blind man, with his cane, cigar box and guide, entering the courtroom and conferring with plaintiff’s counsel near the close of a case in which the principal claim was the loss of an eye. Needless to say this episode is not comparable to the alleged prejudicial use of “large bold type” in a measure of damages instruction. As a factual matter the instruction does not mention the “amount of damages,” and it is not readily apparent in this particular case how an instruction could “magnify” or “accentuate” damages over liability. Instructions 5 and 10 have been reproduced and obviously they are in different type, instruction 10 is in larger type, but to say that, as contrasted with “lightface type,” it is “boldface type” (Webster’s Third New International Dictionary) is another matter. No doubt the typing of instructions should be uniform as far as possible and of course large contrasting type should not be purposefully employed in the measure of damages or any other instruction. But in this case and as to this particular objection deference is due the trial judge’s undisputed explanation when he ruled on the motion for a new trial. “In reference to defendant’s claimed error in reference to the difference in type as shown in instructions numbers 5 and 10, all of plaintiff’s instructions were typed in the same print as instruction 10; however, certain corrections had to be made as to 4, 5 and 6. They were retyped by the Court Reporter who had no electric typewriter immediately available.”

The other objections to instruction 10 are that it submitted five overlapping items of damage and erroneously submitted “the impairment of Terry’s ability to work and labor in the future after he became 21 years of age, when there was no evidence touching his ability to work and labor at any time. The only evidence on the subject matter was to the effect that he was mentally retarded, an epileptic, had never gone to school and had never worked at any time prior to the injuries complained of.” In neither form nor substance is the instruction comparable to instruction 7 in Westfall v. Mossinghoff, J. & Company, (Mo.) 345 5.W.2d 148, 152-153, and its five times repeated "and the ill effects, if any, which naturally and necessarily followed from such injuries.” Even so, said the court, “We do not determine whether the giving of this instruction in itself constituted reversible error.” The leading case relied on is Moss v. Mindlin’s, Inc., (Mo.) 301 S.W.2d 761, and there the cases were again reviewed and an instruction similar to this one was criticized: “We should observe that we do not commend the use of detailed and complicated damage instructions in the usual personal injury case. * * * The use of shorter damage instructions would obviate questions such as here raised by defendant.” But again, nevertheless, it was held that the instruction was not prejudicially erroneous. If this were the only point involved upon the appeal it would be interesting to pursue the subject at length.

The essence of the railroad’s complaint is to "Third: The impairment, if any, of plaintiff’s ability to work and labor in the future after he reaches majority which directly resulted from said injuries, if any.” In addition to the Moss and Westfall cases the appellant cites in support of this assignment Kelly v. Kansas City Public Service Co, (Mo.) 335 S.W.2d 159; Kelsey v. Kelsey, (Mo.App.) 329 S.W.2d 272, 273; Wolfe v. Kansas City, 334 Mo. 796, 68 S.W.2d 821, and Myers v. Karchmer, (Mo.) 313 S.W.2d 697 and Brooks v. Mock, (Mo.) 330 S.W.2d 759. In the two latter cases it was expressly held upon the authority of Moss v. Mindlin’s, Inc, that similar instructions were not prejudicially erroneous. The only case in which an instruction on the subject of impaired ability to work and labor, or on earnings, has been held to be prejudicially erroneous is Seymour v. House, (Mo.) 305 S.W.2d 1. And there, unlike any other case, the instruction permitted consideration of “any earnings, if any, heretofore necessarily lost by plaintiff, and any impairment, if any, of plaintiff’s ability to work and earn money hereafter as a direct result of such injuries.” (Italics supplied.)

But all the above cases were concerned with adults and are therefore beside the point in this case. It is not necessary to re-examine the rationale of the doctrine, it is sufficient to say that the rules announced in those cases have no application to children. In all the cases in which injuries to children have been involved, similar, if not identical, instructions have been upheld without exception. “Nor is the instruction to be held erroneous upon the ground that in the absence of express evidence regarding actual wages and earnings which plaintiff might be expected to lose on account of his injury, it invited the jury to enter the field of speculation, surmise, and conjecture. In the case of injury to an adult, it is true that proof must be made from which the extent of the pecuniary loss may be estimated with reasonable certainty. But in the case of an infant, whose earning capacity is wholly untried, it is held that the question of his damage for the loss of future earning capacity is necessarily to be left to the sound judgment, experience, and conscience of the jury.” Lanasa v. Downey, Mo.App, 201 S.W.2d 179, 185. In the horse-car railroad case of Rosenkranz v. Lindell Railway Co., 108 Mo. 9, 18 S.W. 890, the plaintiff, age 4, was seriously injured including, probably, traumatic epilepsy, and the damage instruction properly allowed recovery “(2) for any loss of earnings after he shall have attained the age'of 21 years.” Wise v. St. Louis Transit Co., 198 Mo. 546, 560, 95 S.W. 898, 902, involved a boy 7 and, without proof, “any loss of the earnings of his labor after he shall have arrived at the age of 21 years.” Ferrier v. Schoenberg Merc. Co., 158 Mo.App. 533, 138 S.W. 893, involved a boy 16 and Buckry-Ellis v. Missouri Pacific R. Co., 158 Mo.App. 499, 138 S.W. 912, involved a girl 7 and “loss of earnings after reaching the age of 18 years” even though there was not of course “proof that she had ever earned any income nor is there anything suggesting a criterion by which her earnings may be measured after she attains her majority.”

And now finally there is the essentially meritorious and difficult problem of whether the $225,000 verdict is excessive. It is not necessary in meeting the problem to again cite a long list of cases and repeat the general rules. The practice of remittiturs rather than new trials was established at the behest of counsel for injured plaintiffs (Counts v. Thompson, 359 Mo. 485, 502, 222 S.W.2d 487, 495) and ever so often the court en banc, most recently in Moore v. Ready Mixed Concrete Company, Mo, 329 S.W.2d 14, re-examines and reasserts with all its attendant factors the rule of uniformity.

Terry was so seriously and permanently injured that it is not necessary to review the evidence in detail or to list such incidentals as the periods of hospitalization, treatment,. or even past and future pain and suffering, these are all obvious from a mere recital of his indisputable physical injuries. The train crushed off both legs below the knees, and subsequently it became necessary to surgically remove both legs above the knees. There was a four-inch laceration in the right occipital area, a small puncture wound over the right eye and minor cuts and bruises too numerous to mention. The tip of the right thumb was crushed off. There was a puncture wound three by four inches in the lower back and even after debridement this wound had not healed a year later. There was a linear fracture of the right ilium which angled into the hip joint and a “fracture of the inferior ramus.” There is some overlapping in these latter fractures but they have healed and “there was almost solid union of the fracture line.” There had been “a revision of both amputations,” a further removal of bone in order that “flaps of skin” may be made to cover the wounds. It was hoped that Terry would be able to wear artificial legs but because of his retarded mentality, pain in the area of the fractured hip, and for other reasons he will be unable to employ prostheses and is confined to a wheel chair. He can feed himself but is unable to go to the bathroom alone or to perform many other personal needs and, of course, will always require considerable care. As his father says, “he can roll around in that wheel chair. That’s about it.”

The railroad offered no medical evidence and does not question the enumerated injuries, their seriousness and permanency. In addition to those injuries it was the opinion of one doctor that as a result of the train running over Terry his mental retardation has become much worse and the implication of his testimony, as well as that of his father and mother, is that the accident and injuries aggravated the epilepsy. Against this phase of the claim the railroad proved that Terry was injured by an automobile in 1955 and in a suit against the driver his parents claimed that the automobile accident had made his mental and epileptic condition permanent and worse. That suit was settled for $3,500.

In Myers v. Karchmer, supra, the plaintiff was 65 years old and, age aside, his injuries were more serious than Terry’s and there it was held, after a trial court remitti-tur of $50,000, that a verdict of $100,000 was not excessive. Since then a $200,000 verdict to a man 31, reduced in the trial court to $150,000, for injuries probably not so extensive and serious as Terry’s, was held not so excessive as to require further remittitur. Moore v. Ready Mixed Concrete Company, supra. Except for possible mental injuries and helplessness the injuries here are somewhat comparable to those in Counts v. Thompson, supra. But that case was decided in 1949, Myers v. Karchmer was decided in 1958 and the Moore case was approved by the court en banc in 1959. In short, considering all the factors involved in the remittitur doctrine and its standard of uniformity the $225,000 verdict in this case is excessive in the sum of $60,000. If, therefore, plaintiff will remit $60,000 within fifteen days, the judgment will be affirmed as of the date of its rendition for $165,000; otherwise the judgment will be reversed and the cause remanded for a new trial.

BOHLING, C., concurs in result.

STOCKARD, C., concurs.

PER CURIAM.

The foregoing opinion of BARRETT, C., is adopted as the opinion of the court with this exception, namely, that the court has determined that the remittitur should be $90,000; if therefore plaintiff will remit the sum of $90,000 within fifteen days from the date of the filing of this opinion, the judgment will be affirmed as of the date of its rendition for $135,000; otherwise the judgment will be reversed and the cause remanded for a new trial.

All of the Judges concur.


source: Caselaw Access Project

author: RUARK, Presiding Judge. STONE, Judge.

license: Public Domain

text:
    William R. EDGAR, Executor of the Estate of Charles Monroe Fitzpatrick, Deceased, Plaintiff-Respondent, v. Carl FITZPATRICK, Vesta Fitzpatrick, and June Hitt, Defendants, Marvin Fitzpatrick, Opal Williams, and Jessica Rice, Defendants-Appellants, and Faye Varnum, Guardian of the Person and Estate of Jettie Fitzpatrick, Incompetent, Defendant-Respondent.
    No. 8109.
    Springfield Court of Appeals. Missouri.
    June 27, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied July 20, 1963.

      William H. Wyne, Jr., Ray T. Dreher, Clayton, for defendants appellants.
    William R. Edgar, Jr., Ironton, for plaintiff-respondent.
    Dearing, Richeson & Weier, Will B. Hearing, Hillsboro, for defendant respondent.
   RUARK, Presiding Judge.

This is a declaratory judgment suit which involves the will and an inter vivos trust executed by Dr. Charles Monroe Fitzpatrick, a resident of Reynolds County, who died on the 13th day of December, 1959, at the age of eighty years.

On July 29, 1957, Dr. Fitzpatrick executed a printed form of instrument entitled “Revocable Declaration of Trust” as follows:

“REVOCABLE DECLARATION OF TRUST
I, the undersigned declarer, having purchased or declared my intention to purchase certificates of Participation in one or more Series of the Keystone Custodian Funds and/or shares of Keystone Fund of Canada, Ltd., do hereby declare that such certificates or shares, which may be under a Keystone Open Account, are to be in trust upon the following terms:
(1) As trustee, I shall have the right to sell, assign, transfer, invest, reinvest, and otherwise deal in the trust estate or any part thereof, on such terms as I shall deem appropriate; and, as trustee, to receive additional shares of property from whatever source which shall be added to the trust estate.
(2) During my lifetime, the income from the trust estate, including distributions of realized capital gains, or such other payments of income or principal as I shall specify from time to time, shall be payable to me individually, for my own personal use and account.
(3) Upon my death, this trust shall terminate and the then trust assets shall be distributed to the following beneficiaries in the proportions indicated.
Beneficiaries Residence Proportion
5424 Cabanne Ave., Mrs. Opal May Williams of St. Louis, Missouri 1/3
Mrs. Jessica Gertrude Rice of Roselle, Missouri 1/3
2941 Wayne Ave., Marvin Lowell Fitzpatrick of Granite City, Ill. 1/3
(4) In the event a named beneficiary shall predecease me, the indicated proportion of the trust assets to which he would have otherwise been entitled upon my death shall upon termination of the trust be distributed among the surviving beneficiaries as their proportionate interests then appear.
(5) In the event all of the named beneficiaries predecease me, the trust shall terminate and the then trust assets shall revert to me free and clear of the terms of this trust.
(6) I, the undersigned declarer, reserve the right to change the beneficiaries and their respective interests or to revoke this trust in whole or in part at any time prior to termination by a written instrument signed by me, which shall be attached hereto.
Executed under seal this 29th day of July , 19 57.
/s/ Ralph W. Yoder /s/ Charles Monroe Fitzpatrick
Witness Declarer
(Typed) Charles Monroe Fitzpatrick
This Trust shall be known as the CHARLES MONROE FITZPATRICK Trust #1. * * *”

The names, addresses, and proportions of the beneficiaries and the addition as to the name of the trust were filled in by typewriter, as was the date.

The showing of circumstances surrounding the execution of this trust is meager. All we know is that it was executed while the doctor was in a hospital in St. Louis. “Q. What hospital was Dr. Fitzpatrick confined in? (Objection overruled.) A. Missouri Baptist Hospital.” The executor testified that after his appointment Marvin Fitzpatrick, one of the beneficiaries named in the trust, told him, the executor, “We got in touch with Mr. Yoder, a broker who had sold Dad all of those Keystone shares, we took him out to see Dad and he told Dad how he could arrange this trust. All we were trying to do was to see to it that Grandma didn’t get anymore [sic] out of the estate than we did.” “Grandma” was Jettie Fitzpatrick, who was Dr. Fitzpatrick’s (second) wife for thirteen years and is now his widow.

On February 13, 19S8, Dr. Fitzpatrick executed his last will and testament which, so far as here pertinent, provided first for the payment of his debts; second a devise of certain real estate to his daughter, Jessica Rice; third to a daughter, Opal Williams, certain real estate; fourth to the widow and children of a deceased son $5.00 each, and to another grandson $1,000; fifth and sixth to the son, Marvin Fitzpatrick, certain real estate. Paragraph seven was as follows:

“7. To my wife, JETTIE FITZPATRICK, if she survives me, I give and bequeath all of the books, wearing apparel, household electrical appliances, household musical and other amusement instruments, and all household and kitchen furniture, appliances, utensils and implements; together with an allowance in the sum of Twenty-four Hundred Dollars ($2400.00) for her maintenance during the period of one year after my death; and I direct my executor hereinafter named to make payment of said sum to her, in cash, within thirty (30) days after the probate of my will, the same to be in lieu of the family allowance provided for by Section 474.260, R.S.Mo.1949, as amended. And, in addition to all of the above, I give and bequeath to my said wife, if she survives me, a sum equal to one full third of my entire estate, the amount of said sum to be determined by a fair and reasonable appraisal of the clear market value of all of the property of which I die seized, not only the real estate herein specifically devised to my children, but all other property, real and personal, owned by me at the time of my death; and when such appraisal has been made, after deducting from the total thereof, the appraised value of the exempt property herein bequeathed to her and the amount of the family allowance herein set apart to her, and the total of all claims against my said estate, one-third of the balance shall be paid to my said' wife as her share of my estate. In making this provision, I have in mind my desire to devise certain specific parcels of my real estate to my children, and also my desire to make every provision for my said wife which is contemplated by statute.”

Paragraph eight made Marvin, Opal and Jessica, his son and two daughters, residuary legatees of the will. (These are the same people who were transferees in the transfer of July 29, 1957.) Paragraph nine provided that the beneficiaries should take free of state and federal taxes and that such should be paid out of the general estate.

This will was prepared by an experienced attorney. There is no indication that Dr. Fitzpatrick informed the attorney about the previously executed declaration of trust. After the doctor’s death, his executor “found stock certificates, notes, and so forth, in all parts of the house and office too.” Included in these were the declaration of trust and certificates of stock in the Keystone Custodian Funds issued to Charles Monroe Fitzpatrick, Trustee. The total value of such certificates at the time of death was slightly in excess of $33,000.

The inventory of estate listed real estate of value of $16,190 and personal property at $49,246.42. Separately listed was joint and entirety property of the value of $19,832.98. The evidence shows that some of this jointly owned property was acquired from assets owned by Jettie Fitzpatrick prior to marriage, but we do not know in what amount. The inventory also listed separately the Keystone Fund certificates above mentioned.

The Treasury Department filed a demand against the estate for a total of approximately $120,000 for delinquent income taxes and penalties. After several months’ checking of records the executor was successful in getting the claim reduced to $51,000 plus interest. The executor employed an auditor (cost $555). Afterwards, with approval of the probate court, a contract was entered into with attorneys to defend the tax claim with a contingent fee of one-third of whatever amount was saved in' reducing the claim. Subsequently, the tax claim was settled for $10,300 including interest; but the estate became liable on its contingent fee contract in the sum of $17,-365. (The validity of this liability is not questioned here.) Thus the agents of our government, which both giveth and talceth away, by the insistence upon a claim many times in excess of the amount they eventually, by settlement, agreed to be just, have caused the estate to be greatly depleted.

The executor brought this suit setting up the fact that, in order to pay the amount bequeathed to the widow, Jettie, he may be required to exhaust the residuary estate and all or part of the specific legacies and devises and praying that the court construe the will and determine the manner in which the estate should be distributed, and also praying that the court ascertain and determine whether the Keystone Custodian Fund shares described in the declaration of trust are to be considered as a part of the estate in determining the share to be distributed to the defendant, Jettie; and further that the court determine the order in which legacies and devises shall be abated, and whether the distribution to Jettie shall be made an equitable charge on such legacies and devises and whether the executor has authority to sell the same either to satisfy claims or to make distribution to Jettie.

The answer of Jettie (for whom a guardian was substituted) asserts that, if in fact Dr. Fitzpatrick executed the revocable declaration of trust in regard to the Keystone shares, such instrument was not binding upon Jettie and that its execution violates Section 474.150 of the Missouri Statutes as being in fraud of the marital rights. We will refer to this answer in more detail later.

The defendants Fitzpatrick, Williams, and Rice denied that there was any ambiguity in the will and prayed such construction, also that the court declare the Keystone stock not be considered as a part of the estate and not be considered in determining the share of the widow.

The court made specific findings of fact which included the condition of the estate. It found that the direction to the executor to make every provision for the testator’s widow “which is contemplated by statute,” together with the fact that the will was written after the declaration of trust, and the use of the fraction one-third, indicated a desire to treat the entire property, “including the declaration of trust,” as a unit; that there were not sufficient assets to permit payment to Jettie Fitzpatrick according to this construction, and the specific legacies and devises must abate in part to realize the funds necessary therefor. He found as a matter of law that the will should be construed as above stated and that the value of the Keystone shares were intended to be and should be included in determining the amount to be paid to the widow.

The defendants, who are transferees under the trust indenture and also both specific and residuary legatees and devisees, appealed. This court wrote an opinion, concurred in by all, holding in effect that the will was not ambiguous but that the trust was in fraud of the marital rights of the wife and the judgment was affirmed as being a proper judgment, although the reasons assigned were erroneous. Motion for rehearing raised various questions, including that of jurisdiction. Rehearing was granted, and the case was reargued and is now reassigned to the writer.

Our jurisdiction is questioned in the motion for rehearing and reargument on the ground that a holding that the transfer was fraudulent puts the whole amount of the Keystone shares ($33,000) in the estate. This contention is based on what was said in Wahl v. Wahl, Mo.App., 200 S.W.2d 597. The issues in that case can be better understood by reading the Supreme Court opinion at 357 Mo. 89, 206 S.W.2d 334. There the petition, by those who claimed as inter vivos transferees, prayed that they be adjudged the holders of all right, title and interest in the stock. It alleged nothing as to the rights of the widow individually. It stated that the widow claimed as executrix and that she had inventoried the stock. It did state that she had renounced the will and accordingly claimed a one-half interest. As to such last allegation the court said, 200 S.W.2d 1. c. 598, “What appellant was then claiming is a mere conclusion on the part of plaintiffs. It is not an allegation of fact.” That case involved these contentions : (1) The transfer was void because it was without consideration and there was no delivery; (2) the whole transfer was testamentary because of the fact that title passed to the beneficiaries “only upon his death”; (3) lastly, the transfer was a fraud on the wife.

In our case the executor asked that the will be construed so as to determine whether the Keystone shares are to be considered as part of the estate in determining the share to he distributed to the widow, Jettie, and that the court determine the order in which legacies and devises in the will shall abate.

The answer of the widow is somewhat ambiguous (we suspect intentionally). It charges that the transfer “is null and void and not binding upon this defendant, as the execution of such instrument, if in fact it was executed, violates Section 474.150, Missouri Statutes Annotated, which provides that any gift made by a person, whether dying testate or intestate, in fraud of the marital rights of the surviving spouse shall at the election of the surviving spouse be treated as a testamentary disposition and may be recovered from the donee.” The prayer is that the court declare the law to be that she is entitled to a full one-third of testator’s estate; that the court enter judgment declaring that the value of the Keystone shares be and is an asset of the estate and that the value thereof be distributed in accordance with the terms of the will.

If the trust was testamentary in character, the transfer would be void in toto, and the full amount of the stock would go into the estate. But the transfer from Fitzpatrick to himself as trustee, retaining the right to income and enjoyment for his life, together with the right to modify or revoke, but conferring an interest in praesenti in the beneficiaries, although the enjoyment thereof was deferred until the settlor’s death, does not necessarily render the trust invalid. If the transfer was in fraud of the widow’s marital rights, it would be void only to the extent necessary to protect her interest, and a holding that it was fraudulent as to her would not deprive the transferee beneficiaries of the remaining portion. Since the widow took under the will, her interest was one-third subject to debts.

For jurisdiction to be vested in the Supreme Court in suits where straight monetary relief is not sought, it must affirmatively appear that the value in money of the relief to the plaintiff, or of loss to the defendant should relief be granted, or vice versa, is in excess of $15,000. Whether the amount in dispute be calculated in accordance with the construction prayed by the executor, or whether it be calculated on the theory that the trust was fraudulent as to the widow and sufficient of the trust assets be subjected to a proportionate part of the debts and the widow’s proportionate part after payment of debts (whether the same be done by a direct charge against the Keystone shares or by penalizing the interests of the general and special legatees and devisees who are also the beneficiaries in the revocable trust transfer), the amount, by computation, which the widow will stand to gain, or the beneficiaries will stand to lose, is less than $15,000.

Even if the widow’s answer be interpreted as an attempt to consider the entire transfer void, we find nothing in the record which pursues such claim. Claims; made in a petition do not necessarily control,' jurisdiction. The court will look to the whole record to discover the real and actual value of the amount in dispute. We therefore retain jurisdiction.

The construction of the will must be-undertaken with the fixed beginning premise-that the intention of the testator must be-gathered from the whole will, what the will' itself says in its general scope and import.

In order to ascertain what the-testator meant by the words he used in the-will, it is often necessary to receive evidence of and consider the circumstances and conditions surrounding the testator at the time-he executed his will. This becomes necessary when there is an apparent ambiguity or a “want of clearness” in the language used, or upon occasions when there is & latent ambiguity (usually in reference to, identity of property or persons). The-purpose in considering the circumstances is-to permit the court to put itself as nearly as possible in the position of the testator-in order to ascertain what he meant by what he said, or, as has been stated, to look afe the situation through his spectacles.

It is held that words used in a,, will are to be interpreted in their ordinary-sense and meaning, unless a different meaning is indicated by the context or circumstances. Well known technical words are usually to he considered in the technical ■sense. 3 Maus, Probate Law and Practice, ■'§ 316(J), p. 293. A testator (so it is held) ■'is presumed to know the legal effect of the language he uses, and, if the will is written by his lawyer, the technical language of the lawyer must have its legal effect and meaning.

Referring now to the will. It does ■not, on its face, appear to be ambiguous. 'The testator -wants his widow to receive in cash the value of all his property, “a sum •equal to one full third of my entire estate,” .as determined by an appraisal of “all of the property of which I die seized,” “all other -property, real and personal, owned by me at the time of my death”. These words we -think are clear enough either by ordinary or by legal language. He did not own and ■was not seized of any interest in the Keystone shares, either legal or equitable, which extended beyond his own life. These he 'had already transferred. The ambiguity, if any, must therefore be one which tends in ■the direction of a latent ambiguity — the existence of the transfer and its effect — and •this must be based upon the assumption that the testator is “presumed to know the law” .and therefore knew that he had executed a -transfer which was at least potentially fraudulent as to his wife, and because of such he intended to reach out through his will and take the trust property into account in computing the amount which went to his widow. An easy answer to this we think is that, had he so intended, he could have easily said so. The will provides for an interest of the widow in that which the testator owned at death, and that cannot include a computation based upon the value of property with which he had already parted.

However unjust the courts may believe a will to be, they cannot rewrite it or make a new one for the testator. Again we are of the opinion that we cannot construe the will as the trial court apparently did in making his decision.

As to whether or not the trust was a fraud on the wife. There is no question that a husband may, during his lifetime, transfer his personal property, with or without consideration and with or without joinder of his wife. But he may not transfer his property, real or personal, in fraud of his wife’s (widow’s) marital rights. Transfers in fraud of the widow’s marital rights have long been a subject of equity jurisdiction in this state, and long before the passage of Section 474.150, R.S.Mo. 1955, V.A.M.S., it was held that transfers which are made with a fraudulent purpose and intent of depriving the wife of her marital rights will be disregarded in so far as the widow’s interests are concerned. The word “fraud” has been used invariably in reference to the transfers which the courts have set aside.

The Missouri cases have generally held that the “fraud” involved is one which necessarily encompasses the intent and purpose of the transferor to defraud the spouse. In attempting to interpret this intent on the part of the transferor, various factors have been considered. It is usually said that, where the transfer is without consideration, the fact of contemplation of death on the part of the transferor is a necessary ingredient of the fraud. Kerwin v. Kerwin, Mo.App., 204 S.W. 925 and cases post. Other factors which have been mentioned in attempting to ascertain the intent of the transferor are whether the transfer is irrevocable (Wahl v. Wahl, 357 Mo. 89, 206 S.W.2d 334) and whether it is surreptitious or known to the spouse. Running through all the cases, whether by express statement or by implication, is the all-important consideration of extent and proportion — that is, the proportion which the property transferred in deprivation of the widow’s marital rights bears to the whole of the transferor’s assets.

Referring now to a transfer accomplished by the particular means involved in this case, that is a transfer without consideration, by means of inter vivos trust in which the settlor assigns a considerable portion of his personal property, but reserves the power of control, the right to amend or revoke, the right to change the beneficiaries, and the use of income from the property for and during his own life, while effectively denying such to his widow: In respect to such transfers a considerable body of authority holds that the arrangement is fraudulent as “colorable” or “illusory.” The assignment, while not on its face testamentary as a technical proposition, is in practical effect a device by which the widow’s rights are defeated. The transaction is judged by its substance rather than by its form and will not be permitted to stand as against the objection of the widow. As stated in the Newman and Bolles cases, the intention of the husband to defraud his widow is not the controlling factor. Such aforementioned device is considered to be in violation of public policy as expressed in the laws respecting marital rights. The proportion of the property transferred and the degree to which the wife is deprived are the controlling factors in determining whether the transfer is actually fraudulent. Some decisions say that, if the transfer comprises a substantial part of the transferor’s property, the transfer is presumptively fraudulent.

It would appear that the bottom upon which such decisions rest is that the “fraud” under examination is one which is really determined by the effect of the transfer rather than by the purpose or intention of the settlor to defraud and that when (a) the transfer is without consideration and without the assent of the wife, (b) the settlor retains the right to revoke, (c) the settlor retains the income and enjoyment, and (d) the proportion of the assets of the settlor so transferred is such as to substantially deprive the widow of that which she would otherwise take under the statutes, then such transfer is presumptively a fraud on the law.

But we have to consider the Missouri cases which involve this character of conveyance. Merz v. Tower Grove Bank & Trust Co., supra, 344 Mo. 1150, 130 S.W.2d 611, and Wanstrath v. Kappel, supra, 356 Mo. 210, 201 S.W.2d 327, were decided under the general rule in effect in Missouri in reference to voluntary transfers in contemplation of death with the intent and purpose (on the part of the transferor) to defraud the widow of her marital rights. In those cases the fraudulent intent could not be presumed but was inferred from the circumstances, which included gross disproportion between the amount transferred and the amount left to satisfy the widow’s marital claims. In the Merz case the ascertainment of intent was aided by evidence of previous efforts of the settlor to find a means whereby he could limit and deprive his wife. In the Kappel case ascertainment of intent was aided by the fact that settlor was suffering from a serious heart ailment and was conscious of impending death. However, in Potter v. Winter, Mo., 280 S.W.2d 27, such a transfer by settlor in ill health (he died three months later) was upheld. The court stated that the physical condition did not “necessarily indicate” that he made the transfer in contemplation of impending death. Circumstances considered in the Potter case were that the settlor had made some prior provision for his widow and that the trust made substantial provision for his widow, although not equal in amount to that which she would have obtained had the indenture not been made; also that the conveyance was not surreptitious and the evidence justified the inference that the wife knew of the terms and had tacitly approved. The decision may possibly have also been influenced by the fact that the second marriage had not been of long duration. The court specifically declared that such a transfer was not legal fraud to be decisively demonstrated by the fact of the transfer and deprivation of the wife; that the voluntary conveyance which may be set aside is one executed with the intent and purpose to defeat the wife, and that the court was concerned only with settlor’s intent. In view of these cases, and the recent declaration of the Supreme Court in Reinheimer v. Rhedans, Mo., 327 S.W.2d 823, 828, that § 474.150 V.A.M.S. does not attempt to establish or create any new definition of fraud, we must assume that the law in respect to these near-testamentary trusts is concerned with the personal motive and intent of the settlor to defraud his wife rather than with the actual effect and result accomplished, and we must also assume that anticipation of death is still an element to be considered in determining such an intent.

In applying that law to our case, we must consider the circumstances which existed at the time the trust was created on July 29, 1957, over two years before Dr. Fitzpatrick’s death. He was then seventy-eight years old, but there is no evidence as to his physical or mental condition at that time. He was in a hospital, but there is nothing shown as to the reason therefor or, if he was confined as a patient, the nature of his ailment; nor is there any •evidence of circumstances attending the execution of the instrument except that the transferees secured the presence of the broker who prepared it. We do not know whether this was done in an atmosphere of secrecy, or whether the wife knew about it or was present. In fact we know next to nothing of the facts which would aid us in the wholly unsatisfactory attempt to look into the settlor’s mind. It is true that we can look with suspicion upon the act of one of the transferees because of his statement as to what the transferees were trying to do; but under the holdings of our Supreme Court we must concern ourselves with the settlor’s mind and his intention and purpose rather than with the intention and purpose of those who benefited from the transfer.

Assuming that we might be able to infer fraudulent intent on the part of the settlor from the sole fact that a husband, by such transfer, substantially deprives his wife of her marital rights by means of putting a considerable portion of his property out of her (the widow’s) reach, we think (after considering Potter v. Winter, supra, and, to some extent, Wahl v. Wahl, supra) the amounts involved are not so disproportionate as to permit that finding here. The doctor’s estate amounted to approximately $66,000. The sum transferred to his children constituted approximately one-third of his assets. It is true that his ultimate estate was materially reduced by the income tax claim and the expense attendant thereon; but there is no indication in the evidence that the doctor knew of this claim before he died. Our decision concerning this is not without difficulty. The settlor reserved not only the income for himself but also the way and means to channel the benefit from the property after (and upon) his death in any manner he saw fit. As applied to the wife, it was, in all but name, a testamentary act which deprived the widow of a substantial portion of her marital rights. In the writer’s opinion it should be declared to be a fraud on the law; but we are bound by Supreme Court precedent, and, since we must determine the question upon the test of motive and purpose, we are forced to conclude that the evidence does not show the transfer was in fraud of the widow’s marital rights.

For the foregoing reasons we believe the judgment of the trial court was erroneous in part. The will should be construed as we have herein stated. The one-third bequest to the widow becomes a charge against the property of the estate, subject to payment of debts and expenses. If there be not sufficient moneys to pay the debts and the widow’s bequest, then the residuary bequests and devises will first abate, and thereafter the specific bequests and devises will abate in proportion. The executor may, if necessary, sell and reduce to cash any or all real or personal property in order to effectively carry out the terms of the will.

The judgment is reversed and remanded' for entry of decree not inconsistent with this opinion.

HOGAN, J., concurs.

STONE, J., concurs in separate opinion..

STONE, Judge.

Since it is our duty to follow the law as-declared by our Supreme Court and since, on the instant record which we must take as it comes to us, the result reached in the principal opinion is, as the author of that opinion carefully explains and points out,. In harmony with controlling cases in this-jurisdiction, I do not join in the voluntary- and gratuitous expression of opinion that the trust under discussion “should be declared to be a fraud on the law.” Otherwise, I concur in the principal opinion.

      . Restatement, Trusts 2d, § 57, p. 151; 54 Am.Jur., Trusts § 34, pp. 45, 46; § 26, pp. 40, 41; 3 Maus, Probate Law and Practice, § 36, pp. 23, 24; 32 A.L.R.2d, Anno. 1270; Davis v. Rossi, 326 Mo. 911, 34 S.W.2d 8; Masterson v. Plummer, Mo. App., 343 S.W.2d 352; Sims v. Brown, 252 Mo. 58, 158 S.W. 624; see Coon v. Stanley, 230 Mo.App. 524, 94 S.W.2d 96, 98; In re Hutchins’ Estate, Mo., 323 S.W.2d 796; Atlantic Nat. Bank of Jacksonville, Fla. v. St. Louis Union Trust Co., 357 Mo. 770, 211 S.W.2d 2; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135.

      . Section 474.150 V.A.M.S.; 1 Scott on Trusts, § 57.5, p. 350; Kerwin v. Kerwin, Mo.App., 204 S.W. 922, 924; Wanstrath v. Kappel, 356 Mo. 210, 201 S.W. 2d 327, 331; Id., 358 Mo. 1077, 218 S.W. 2d 618, 621; Breshears v. Breshears, 360 Mo. 1057, 232 S.W.2d 460; Resch v. Rowland, Mo., 257 S.W.2d 621.

      . Higgins v. Smith, 346 Mo. 1044, 144 S.W.2d 149; Fleischaker v. Fleischaker, 338 Mo. 797, 92 S.W.2d 169; Hamilton v. Robinson, Mo., 146 S.W.2d 601; St. Louis Union Trust Co. v. Toberman, 345 Mo. 613, 134 S.W.2d 45; Mississippi Valley Trust Co. v. Bowler, 346 Mo. 800, 143 S.W.2d 59.

      . Higgins v. Smith, supra, 346 Mo. 1044, 144 S.W.2d 149; Nemours v. City of Clayton, 351 Mo. 317, 172 S.W.2d 937; Buddon Realty Co. v. Wallace, Mo., 188 S.W.2d 28; Esmar v. Haeussler, 341 Mo. 33, 106 S.W.2d 412; Whitworth v. Monahan’s Estate, 339 Mo. 1123, 100 S.W.2d 460; Finley v. Smith, Mo.App., 170 S.W.2d 166.

      . 95 C.J.S. Wills § 590, p. 730; Crist v. Nesbit, Mo.App., 352 S.W.2d 53; Thomas v. Higginbotham, Mo., 318 S.W.2d 234; Shriners Hospitals for Crippled Children v. Emrie, Mo., 347 S.W.2d 198.

      . Mavrakos v. Papadimitriou, Mo.App., 331 S.W.2d 161; Rowe v. Strother, 341 Mo. 1149, 111 S.W.2d 93.

      . Evans v. Volunteers of America, Mo., 280 S.W.2d 1; Schubel v. Bonacker, Mo., 331 S.W.2d 552, 556; Gehring v. Henry, Mo., 332 S.W.2d 873.

      . Littleton v. General American Life Ins. Co., Mo.App., 136 S.W.2d 433; Bakewell v. Mercantile Trust Co., Mo., 319 S.W.2d 600; Boxley v. Easter, Mo., 319 S.W.2d 628; Winkel v. Streicher, 365 Mo. 1170, 295 S.W.2d 56.

      . Obetz v. Boatmen’s Nat. Bank of St. Louis, Mo., 234 S.W.2d 618, 622; Boxley v. Easter, supra, Mo., 319 S.W.2d 628.

      . Gehring v. Henry, supra, Mo., 332 S.W. 2d 873; First Nat. Bank of Kansas City v. Hyde, Mo., 363 S.W.2d 647; Thomas v. Higginbotham, supra, Mo., 318 SW.2d 234.

      . Crist v. Nesbit, supra, Mo.App., 352 S.W.2d 53; Littleton v. General American Life Ins. Co., supra, Mo.App., 136 S.W.2d 433.

      . Scullin v. Mercantile-Commerce Bank & Trust Co., Mo., 234 S.W.2d 597(7); Price v. Gordon, 347 Mo. 354, 147 S.W.2d 609, 614.

      . 64 A.L.R.Anno. 466; In re Bernays’ Estate, 344 Mo. 135, 126 S.W.2d 209, 122 A.L.R. 169; Szombathy v. Merz, 347 Mo. 776, 148 SW.2d 1028, 1029.

      . Newton v. Newton, 162 Mo. 173, 61 S.W. 881, 885; Merz v. Tower Grove Bank & Trust Co., 344 Mo. 1150, 130 S.W.2d 611.

      . See cases at West’s Missouri Digest, Descent and Distribution, <§^>69.

      . Headington v. Woodward, Mo., 214 S. W. 963; Hastings v. Hudson, 359 Mo. 912, 224 S.W.2d 945.

      . 49 A.L.R.2d Anno. 521(5); 64 A.L.R., supra, Anno. 466 (IV); 1 Scott on Trusts, supra, § 57.5, p. 350; Newman v. Dore, 275 N.Y. 371, 9 N.E.2d 966, 112 A.L.R. 643; Bolles v. Toledo Trust Co., 144 Ohio St. 195, 58 N.E.2d 381, 157 A.L.R. 1164; see Newton v. Newton, supra, 162 Mo. 173, 61 S.W. 881, 883; Tucker v. Tucker, 29 Mo. 350, 32 Mo. 464.

      . 1 Scott on Trusts, supra, § 57.5, p. 350; Harris v. Harris, 79 Ohio App. 443, 74 N.E.2d 407; see 26 Mo.L.Rev., p. 13.

        . Whittington v. Whittington, 205 Md. 1, 106 A.2d 72, 49 A.L.R.2d 513; Mushaw v. Mushaw, 183 Md. 511, 39 A.2d 465.

      . Cochran’s Adm’x v. Cochran, 273 Ky. 1, 115 S.W.2d 376; Payne v. Tatem, 236 Ky. 306, 33 S.W.2d 2.

      . Compare Breshears v. Breshears, supra, 360 Mo. 1057, 232 S.W.2d 460.

      . Compare Weller v. Collier, Mo., 199 S.W. 974, Hastings v. Hudson, supra, 359 Mo. 912, 224 S.W.2d 945, 950.


author: CROSS, Judge.

text:
    KANSAS CITY, Missouri, Respondent, v. Mabel MARTIN, Appellant.
    No. 23784.
    Kansas City Court of Appeals. Missouri.
    June 3, 1963.

      Blackford, Imes, Compton & Brown, Kansas City, for appellant.
    Keith Wilson, Jr., City Counselor, James F. Karl, Asst. City Counselor, for respondent.
   CROSS, Judge.

Defendant was convicted in the municipal court of Kansas City, Missouri, on the charge of violating Section No. 47.070 of the city’s ordinances, entitled “Soliciting for Immoral Purposes”. Upon appeal by defendant to the circuit court, trial was to a jury which found her guilty of the alleged offense and assessed a punishment of “three months and $100.00 fine”. Defendant appeals from the judgment.

Defendant was tried upon an information filed April 4, 1962, which charges “that on or about the 30th day of March, A.D., 1962, one Mabel Martin did unlawfully solicit another person, in a hotel, for the purpose of prostitution, or for the purpose of an act of sexual perversion”, in violation of Section 47.070 of the Revised Ordinances of Kansas City, Missouri.

Section 47.070 of the city’s ordinances above referred to provides as follows:

“Soliciting for immoral purposes.— No person shall solicit any other person upon the streets, sidewalks or other public places of the city, or in or about any tavern, saloon, tap room, bar, rooming house or hotel, for the purpose of prostitution or sexual perversion. Any person violating the provisions of this ' section shall be deemed guilty of a misdemeanor”.

The only witness who testified on the issues was one James D. Irwin, a “semiretired”, unemployed salesman, who identified himself additionally as a volunteer member of the reserve unit of the Kansas City police force, attached to the vice squad, working without pay. He testified, on behalf of the city, that on the night of March 29, 1962, at 11 o’clock P.M., he “made an investigation of prostitution activities at the Tanner Hotel”; that in so doing he entered the hotel, engaged a bellboy in conversation and told him “I would like to have a good time.” Irwin registered at the direction of the bellboy and was assigned a room. The bellhop took Irwin on the elevator to the assigned room and told him that “shortly there would be a young lady step up”. A few minutes later, there was a knock on the door, and at Irwin’s invitation, a woman identified by him as defendant, entered the room. Irwin testified without objection that defendant told him she had been sent up to entertain him, “for him to have a good time”, that she had whatever time he would care to have, and that “she gave me a price of $20.00 for an act of prostitution”. When asked what defendant said “in that connection”, Irwin stated that she used certain words which appear to be in the vernacular and of an indelicate nature. For that reason we do not see fit to set them out in this opinion — nor do we deem it necessary to do so. It is sufficient to say that the jury could reasonably find or infer that the words attributed to defendant by the witness constituted a specific solicitation of an act of prostitution or sexual perversion.

After defendant made the statements above noted, Irwin identified himself as a police officer and placed her under arrest. Thereafter (so Irwin testified) defendant made the statement that “she had been in the business quite a long time”. There is no evidence before us that any sexual act was committed.

At the conclusion of plaintiff’s case, defendant filed a motion for a directed verdict of acquittal, which the trial court denied. Defendant offered no evidence. The case was submitted to the jury under plaintiff’s verdict-directing Instruction No. 3, which reads in part as follows:

“If you find and believe from the evidence beyond a reasonable doubt that within the corporate limits of the City of Kansas City, County of Jackson, State of Missouri, or on or about the 29th day of May the defendant herein, Mabel Martin, did then and there unlawfully solicit a person, in or about the Tanner Hotel, 917 Locust, Kansas City, Missouri, for the purpose of sexual intercourse for hire with her then you will find the defendant guilty of soliciting for the purpose of sexual intercourse for hire and so find in your verdict.
“Unless you find the facts as above stated, you are instructed to acquit the defendant. * * * ”

In defendant’s first point she submits that the city failed to prove (1) the allegations of the information, (2) the corpus delicti, and (3) intent on her part to solicit for an act of prostitution. We find no merit in these contentions. It is our opinion that the city made a case and that the jury’s verdict is supported by the evidence of defendant’s acts and statements viewed as a whole and in the light of all the circumstances surrounding the incident in question. The jury could reasonably find that defendant made the unlawful solicitation charged against her from the undisputed testimony that she entered the hotel room of a strange man at a midnight hour, informed him she was there for his entertainment and that her time was at his disposal, and that she quoted a “price” of $20.00 for her proposed favors — even without a consideration of the additional language allegedly spoken by defendant which we have chosen not to incorporate in this opinion. “A solicitation (for the purpose of an unlawful sexual act) * * * need not be in any particular form of words, and it may well be that solicitation, within the meaning of the statute, can be accomplished by gesture and other indication quite as effectively as by the use of any set or particular formula of language.” State v. Render, 203 Iowa 329, 210 N.W. 911. Also see Curran v. United States, Mun.App., D.C., 52 A.2d 121. The case of City of St. Louis v. Wyatt, Mo.App., 189 S.W.2d 129, cited by defendant, is not authoritative on the issues raised by this appeal. In order to convict the defendant in the Wyatt case, it was necessary for the city to show an act of prostitution. In the instant case, the proof of solicitation of the unlawful sexual act is sufficient.

Since the evidence is sufficient to prove the alleged unlawful solicitation by defendant, it necessarily follows that the corpus delicti has also been established— that the specific offense charged has been committed by some person. Likewise, we rule that the necessary intent on the part of defendant to violate the ordinance may be inferred from the evidence which we have found sufficient to prove its violation. “An intention to commit an act forbidden by law is to be inferred, except under a statute which makes the intent an essential part of the statutory charge * * ”. State v. Granger, Mo.App., 199 S.W.2d 896.

In her second point defendant urges that “the information was incomplete and misleading and duplicitous”. Her only specific complaint of the information is that it did not reveal the identity of the person allegedly solicited by her. For that reason, defendant argues, she could not prepare her defense. We do not find the pleading defective as charged. It consists of “a plain, concise and definite written statement of the essential facts constituting the offense charged.” Rule 37.18, Missouri Rules of Practice and Procedure in Municipal and Traffic Courts, V.A.M.S. It contains allegations advising defendant of the time, place and particulars of the offense charged against her with sufficient definiteness to be pleaded in bar of a subsequent prosecution. Furthermore, the information is phrased in and follows the language of the ordinance. As we said in Kansas City v. Bondon, Mo. App., 328 S.W.2d 168, “The information describes the act complained of in the language of the ordinance and is, therefore, sufficient to sustain a conviction. City of Springfield v. Stevens, 358 Mo. 699, 216 S.W.2d 450, 453; City of St. Louis v. Weitzel, 130 Mo. 600 (Syl. 2), 31 S.W. 1045”.

In her next point, defendant undertakes to invoke the doctrine of entrapment as a defense. Unfortunately, from her standpoint, these efforts are untimely and misdirected.

The rules applying to entrapment as a defense are stated by the Supreme Court in State v. Decker, 321 Mo. 1163, 14 S.W.2d 617, as follows: “Where the criminal intent originates in the mind of the defendant on trial, and the offense is accomplished, it constitutes no defense that an opportunity is furnished, or that an officer aids the accused in the commission of the crime, in order to obtain evidence upon which to prosecute him. But where the criminal intent originates in the mind of the entrapper, and the accused is lured into the commission of the offense charged, in order to prosecute him therefor, it. is the general rule that no conviction may be had, though the criminality of the act is not affected by any question of consent. Butts v. United States (C.C.A. [8]) 273 F. 35, 18 A.L.R. [143] 146”.

The determination of whether there has been an entrapment of a defendant into the commission of an offense is a question of fact in each particular case. The general rule governing such determination is stated in 23A C.J.S. Criminal Law § 1128, p. 279, as follows: “Ordinarily, where the evidence is sufficient to justify submission to the jury or where the evidence is conflicting, -it is for the jury, and not, except where the case is tried without a jury, the trial court, to determine whether there was an entrapment; or, as it is sometimes stated, the issue of whether accused -was entrapped is a question for the jury, unless the evidence is so clear and convincing that it can be passed on by the trial court as a matter of law”.

We believe that the evidence in this case justifies and requires the submission to the jury of the entrapment question, inasmuch as we are also of the opinion the jury could reasonably find that the “criminal intent” originated in the mind of the officer who suggested and instigated the alleged offense.

The fact that defendant did not request an instruction submitting entrapment as a defense did not relieve the trial court of its duty in that regard. Since that issue arose upon substantial evidence, it became one of the essential elements included in the law of the case and should have been included in the court’s instructions defining that law. The Supreme Court of Missouri so held in State v. Decker,, supra. We quote from that opinion: “Defendant did not offer an instruction involving entrapment, but he complains of the action of the trial court in that regard in his motion for a new trial. If an instruction of that nature involves merely a collateral issue, then defendant may not complain, for he did not attempt to offer such an instruction. State v. Conrad, No. 29,093 (Mo.Sup.) [322 Mo. 246] 14 S.W.(2d) 608, lately decided, not yet (officially) reported. If, however, it involves what is the law of the case, defendant may predicate error on it,, even if he failed to offer it, provided the motion for a new trial complains of it. State v. Burrell, 298 Mo. 672, 252 S.W. 709. The law of the case comprehends the elements of the offense charged, as shown by the evidence. Entrapment was one of the elements of the offense, for, if defendant was entrapped, he was not guilty, as we have shown. The court erred in this regard”.

Notwithstanding the trial court’s error in failing to instruct the jury on entrapment as a defense in the case, complaint thereof is not available to defendant in this appeal. No allegation of the error is contained in defendant’s motion for a new trial. Consequently she has waived it.

Defendant further contends that the ordinance under which she was convicted is (1) unconstitutional, and (2) invalid, because it is broader than the state statute on the subject and is an attempted exercise of authority in excess of the lawful powers granted to the city by the state. The first time defendant assailed the constitutionality of the ordinance was in her motion for a new trial. It is fundamental that a constitutional question is not available to a litigant as an issue on appeal unless it is raised at the first opportunity afforded in the case. We decline to consider the assignment as it relates to the constitutional question. Likewise, we do not undertake or deem it necessary to decide the remaining aspect of the instant point. Defendant has made no effort to point out therein any action of the trial court she claims was erroneous or to cite any supporting authority for the very general statement which constitutes the assignment.

Defendant complains that Instruction No. 3 is erroneous to her prejudice because (1) it gave the jury a roving commission to find her guilty of an offense on a date other than as charged and shown in the evidence, and (2) because there was no evidence to support the instruction “as to the date of May 29”. The city contends that the insertion of the language “the 29th day of May” in the instruction was caused by a typographical error and resulted in no prejudice to defendant.

Our determination will be governed by rules and legal principles applicable in criminal cases. Section 98.020 V.A. M.S. provides that “[a]ppeals from police courts and for violation of an ordinance of a city, town or village shall be in the nature of a criminal appeal from a magistrate”. In City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935, the court interpreted Sectioiy 98.020 to signify that on appeal from a judgment of a police court in a proceeding for violating an ordinance, the subsequent circuit court procedure must be in accordance with the criminal, and not the civil code. To like effect are the provisions of Rule No. 37.83 of the Missouri Rules of Practice and Procedure in Municipal and Traffic Courts. In our opinion the foregoing provisions are not inconsistent with the established view that a prosecution for violation of a municipal ordinance is a civil proceeding with quasi-criminal aspects, and the recognized rule that the sufficiency of a complaint initiating such a prosecution is to be determined by the same rules as are applicable in other civil actions.

Criminal Procedure Rule No. 26.02 requires the trial court,, in all criminal cases, to instruct the jury in writing upon all questions of law necessary for their guidance in returning their verdict. This duty to instruct implies a corresponding duty to instruct properly and without error ow all material matters. The trial court has not observed these requirements in the giving of Instruction No. 3. That instruction is obviously erroneous on its face, because it is not supported by the evidence. The information charged defendant • with committing an offense “on or about the 30th day of March A.D. 1962”. All of the evidence tending to support the charge relates to events occurring on March 29, 1962. Thus, the trial issue presented by the city was that the ordinance violation occurred on March 29, 1962, and that issue was accepted by the defendant. Therefore, as the Supreme Court stated in State v. Chittim, Mo.Sup., 261 S.W.2d 79, there was no foundation upon which to place an instruction as to any other time. Notwithstanding, the instruction, verdict-directing in nature, required the jury to find defendant guilty if they found she solicited a person “on or about the 29th day of May”. There is no evidence whatsoever that defendant violated the ordinance on or about May 29 of 1962 or of any other year. Hence, there is no basis of fact to support the verdict under the instruction.

Furthermore, it is fundamental that an instruction which permits a conviction for an act committed after the filing of the information is erroneous. See 23A C.J.S. Criminal Law § 1196 p. 503. In Maddox v. Commonwealth, 221 Ky. 257, 298 S.W. 688, the jury convicted defendant of the offense of keeping a disorderly house. The instruction under which she was convicted contained no reference to the time of the offense. The court stated that under the instruction the jury was at liberty to convict the defendant for what she did after the finding of the indictment. For that reason the instruction was held fatally defective. We find similar error in Instruction No. 3 wherein the only reference to time is as to “the 29th day of May”. If the quoted language be considered to mean “the 29th day of May, 1962”, it designates a day subsequent to April 4, 1962 — the date of the filing of the information. If it be considered that “the 29th day of May” does not signify any day certain because no particular year is named, then the instruction states no limitation of time relative to the date of the offense. In either case, the instruction is erroneous.

In deciding whether the error is prejudicial or harmless, we take notice of certain fundamental rules uniformly observed by Missouri courts. It has long been recognized that error in the trial of a criminal case is presumed to have been prejudicial; State v. Shipley, 174 Mo. 512, 74 S.W. 612; and, that error should not be declared harmless unless it is so without question. State v. Richards, 334 Mo. 485, 67 S.W.2d 58; State v. Banton, 342 Mo. 45, 111 S.W.2d 516. In State v. Shipley, supra, the Supreme Court, speaking through Judge Gantt, said “Error is presumptively harmful, and it devolves upon the party who commits it to show that it could not possibly have resulted in injury. Especially is this true where the life or liberty of the citizen is at stake”.

In State v. Byrnes, 238 Mo.App. 220, 177 S.W.2d 909, this court stated its concept of “[t]he true rule in regard to erroneous instructions” in the following language: “The error is presumed to be prejudicial and reversal must follow as a matter of course unless that presumption is positively overcome in the mind of the court after a thorough consideration of the entire record; and if, after consideration of the entire record, there remains a substantial doubt as to whether or not the error was injurious then that doubt should be resolved in favor of the party against whom the error was committed. Such a rule is but a summation of the various pronouncements of the courts on the subject. It is a rule of logic that inevitably flows from the American concept of the administration of law and justice”.

A thorough consideration of the entire record in the present case does not, in the mind of this court, positively overcome the presumption that the error in the instruction is prejudicial. We cannot say, with complete conviction, that the jury was not misled or that defendant was not prejudiced by the so-called typographical error. In Thomas v. State, 207 Ala. 244, 92 So. 244, it was stated by the reviewing court that although an error in the trial court’s instruction may have been the result of mere inadvertence, where the appellate court cannot say how the jury were affected, reversible error must be held to have resulted.

Nor can we say, with unequivocal certainty, that the jury’s verdict of conviction was based on the occurrences of March 29, 1962, as shown in evidence, and that it was, therefore, in conformity with the evidence. There was other testimony in the case from which the jury could have believed that defendant habitually and regularly solicited acts of unlawful sexual intercourse other than the one covered by the information. We refer to the testimony of Irwin wherein he stated that defendant told him that “she had been in the business quite a long time”. If the jury understood the instruction as referring to an act of solicitation committed by defendant on Maj 29, 1962 there was no evidence to support their verdict of guilty since all the evidence of the specific offense charged referred to March 29,1962. Hence, under that assumption, the jury could not have based their verdict on the hypothesis contained in the court’s instruction, but upon some other premise, conceivably their belief that defendant might have solicited some person other than Irwin on May 29, 1962, in view of her purported admission that she was a “regular” in the business. In this connection, it will be remembered that Instruction No. 3 did not require the jury to find that defendant solicited Irwin in order to convict, but only required a finding that she solicited “a person”.

On the other hand, if it be the case that the jury did not accept Instruction No. 3 in its literal sense, but instead made their own rationalization that the trial court meant otherwise (March 29, 1962) than it actually wrote (May 29th) in the instruction, it may be said that the verdict of guilty is in conformity with the evidence, but not in conformity with the instruction. In order to arrive at such a result the jury necessarily disregarded the directions of the court as set out in the instruction.

Such procedure is contrary to the generally accepted concept of due process since it is an invasion, by the jury, of the court’s peculiar province. The jury has no more license to disregard or re-write the verdict-directing instruction than it has to ignore any other instruction in the case. We are led to observe that since the jury has failed to follow one of the court’s instructions, it may have disregarded others— including those relating to the presumption of defendant’s innocence and plaintiff’s burden to prove her guilt beyond a reasonable doubt.

We are of the opinion that substantial doubt remains as to whether defendant was injured by the error in the instruction. Therefore, we resolve that doubt in defendant’s favor and rule that plaintiff has not sustained its burden to show that the error was harmless. We' feel that the purposes of justice will best be served by requiring a new trial of the case.

Defendant’s brief contains six additional assignments of ■ error which are directed at the trial court’s actions and rulings during the course of the trial. We do not consider it necessary to rule upon these remaining appeal issues since they may not again arise upon a retrial.

For the error above noted, we reverse the judgment and remand the cause for a new trial.

All concur.

      . Also see Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; cases in Annots., 18 A.L.R. 146; 66 A.L.R. 478; 86 A.L.R. 263; 52 A.L.R.2d 1194; 22 C.J.S. Criminal Law § 45(2), p. 138.

      . Citing, State v. Decker, 321 Mo. 1163, 14 S.W.2d 617.