author: HENLEY, Judge.

text:
    Eddie Earl HODGES, (Plaintiff) Appellant, v. AMERICAN BAKERIES COMPANY, a corporation, and Kenneth Earl Dickson, (Defendants) Respondents.
    No. 51436.
    Supreme Court of Missouri.
    Court En Banc March 13, 1967.

      Pollock, Ward, Klobasa & McGinnis, T. Hartley Pollock, and Roberts P. Elam, St. Louis, for appellant.
    Moser, Marsalek, Carpenter, Cleary & Jaeckel, F. X. Cleary, Paul S. Brown, J. C. Jaeckel; St. Louis, for respondents.
   HENLEY, Judge.

This is an action for $25,000 damages for the wrongful death of plaintiff’s husband. Verdict and judgment were for defendants and plaintiff appeals. This court has jurisdiction because the amount in dispute exceeds $15,000. Article V, § 3, Constitution of Missouri, V.A.M.S.; § 477.040, RSMo 1959, V.A.M.S.; Brewer v. Silverstein, Mo., 64 S.W.2d 289, 290 [1].

Plaintiff alleges the court erred in (1)\ giving instruction No. 6, on behalf of defendants, and (2) admitting in evidence the testimony of a witness for defendants. The case was submitted on excessive and negligent speed. It was tried in November, 1964, before the effective date of our rules requiring use of MAI instructions.

The motor vehicle collision in which plaintiff’s husband was killed and out of which this action arose occurred Sunday night, August 5, 1962, at about 10 o’clock on U. S. Highway 61, a two-lane highway in Perry County, about one and one-half miles north of the intersection of that highway and state route “A”, near Uniontown. Highway 61, in the general area of this collision, runs in a north-south direction, has a concrete surface and a concrete lip on its edges or sides and dirt shoulders twelve and one-half feet wide on its east and ten feet wide on its west side. On the night in question the sky was overcast and dark; it had been raining and, according to defendant Dickson, was raining at the time of collision; the roadway was wet and visibility reduced; normally heavy weekend. traffic was augmented by an annual picnic at Perryville. Speed limits were-70 mph in the daytime and 65 mph at night. The vehicles involved were a 1949 model black Packard sedan, occupied by plaintiff’s deceased husband as a passenger and others,, and a GMC diesel tractor pulling a Frue-hauf enclosed van-type trailer driven by defendant Dickson, an employee of defendant, American Bakeries Company.

At the time of the collision the Packard was stopped, headed north, on the pavement in the east or northbound lane “right at” and approximately due west of a yellow,, diamond shaped, highway marker located. on the east shoulder indicating by a black arrow a curve ahead to the right or east and by the numerals “55”, a suggested speed limit for negotiating the curve. John Whitley, owner of the Packard, Willie Williams, plaintiff’s decedent, and Anna McCalister, sister of plaintiff, were returning from a funeral they had attended at Marianna, Arkansas, to their homes in Kirkwood, Missouri. At the time the Packard stopped or stalled on the highway at the point of the later collision, Mr. Whitley was driving, Williams was seated on the right-hand side of the front seat, Mrs. McCalister occupied the back seat on the right, and plaintiff’s husband occupied the left side of the back seat.

While the general area is hilly, the highway is straight from a point 1,000 feet south of the above-mentioned curve marker to the scene of the collision. And north of that scene it is straight for another 300 feet until it begins to curve to the right or east. Commencing at the point 1,000 feet south of the curve marker and driving north, the highway is level for approximately 100 feet, and then it goes slightly upgrade for approximately 225 feet to a crest, thence slightly downgrade approximately 125 feet to and across a bridge at Indian Creek (550 feet south of the scene of the collision), thence continues the slight downgrade another 150 feet to a low point, thence up a 3.6% grade some 400 feet to the point of collision. Approximately 100 feet south of the point of collision a farm lane leads east off the highway.

Willie Williams, the only witness for plaintiff as to the facts of the collision, testified: He drove the Packard from Marianna to Jackson, Missouri, where he turned over the driving duties to Mr. Whitley and went to sleep sitting in the front seat; that the next thing he knew the automobile j erked a couple of times, stalled, and came to a full stop in the northbound lane “right at the [curve] sign”; that it was drizzling rain at the time; that Mr. Whitley tried to start the motor, but got no reaction; that Whitley, dressed in white hat, white shirt and black pants, then got out and walked to the rear of the automobile and he (Williams) turned around in the seat and looked toward the rear where he could see Whitley some ten or twelve feet behind the automobile and in the center of the east lane. He also saw the headlights of an approaching northbound vehicle which later proved to be a Ford pickup truck. Watching the headlights of this vehicle, he reached over with his foot and applied the brake pedal to brighten the taillights. He could tell that the taillights were burning because he could see the red reflection from the wet pavement. He also testified that the Packard had a red reflector strip below each of its taillights. The Ford pickup came up behind the stalled Packard, slowed down almost to a stop, and then continued on up the highway.

Williams further testified that he continued to watch to the rear and saw the approaching headlights of another vehicle, the tractor-trailer unit or rig being driven by defendant Dickson; that the headlights were on low beam until it reached the Indian Creek bridge and then switched to high beam; that he continued to watch Whitley, who was walking farther to the rear, and the headlights; that as the tractor-trailer approached at a speed estimated by him at between 50 and 60 mph, he saw Whitley jump to the side of the road near the farm lane; that the tractor-trailer continued its approach, without slowing and collided with the rear of the Packard; that the collision caused him to be thrown out of the automobile and onto the east dirt shoulder.

Williams further testified that he did not know how long the Packard had been stopped on the highway before the collision, but that “it was a very short time”; that no one made any attempt to push it backwards and onto the shoulder.

Virgil W. Bell, called to the stand by plaintiff, testified: that on the night of August 5, 1962, he was enroute north on Highway 61 to St. Louis, driving his 1957 Ford pickup truck; that it was a dark, misty-night, the road was wet and the traffic “pretty heavy”; that he was using the low beams on his headlights and driving at a speed of about 45 miles an hour '; that south of Perryville he came upon a stalled car shortly after crossing Indian Creek bridge; that as he crossed the bridge he met a southbound car which blinked its lights and, when he looked at the road again, he could see a stalled car ahead some 350 to 500 feet; that as he approached the stalled car another southbound car was approaching so close that he could not then pass and he had to stop; that he realized what was confronting him when he was 250 or 350 feet from the stalled automobile; that he immediately applied his brakes and his truck slid, turned at an angle to its left, and came to a stop some 5 to 15 feet behind the stalled automobile; that, after the second southbound car had passed, he went around the stalled automobile and on his way. He did not know whether it was the headlights on his truck or the stalled car being silhouetted in the headlights of the second southbound automobile which enabled him to see the Packard; that he did not see a man behind the stalled car flagging or waving his arms, but did see a man standing by its door on the driver’s side; and, that he did not see any lights on the Packard. He further testified that he was in a filling station at Perryville a week or so later and learned about this collision.

Defendant, Kenneth Earl Dickson, the only witness for the defendants as to the facts of the collision, testified that on the occasion in question he was driving the tractor-trailer unit of the other defendant from Sikeston to St. Louis, Missouri; that the unit was equipped with a tachograph, which recorded the time of day, whether the vehicle was in motion, and, if so, its speed, and the miles traveled; that he normally drove this highway at a speed of 55 mph, when it was not raining; that as he approached the scene of collision it was raining and visibility was “interfered with some”; that he believed (but was not positive) that his headlights were on low beam; that his tractor-trailer was moving between 50 and 55 mph (the tachograph recording shows approximately 52 mph) ; that he did not see the automobile with which his vehicle collided until he was 75 to 100 feet away ; that as he started “uphill” his headlights “picked up” the Packard; that he did not see any lights on the automobile; that he saw both the automobile and a man at its left rear at about the same time; that when he first saw the automobile it appeared to be standing and he immediately applied his air brakes, and his vehicle started sliding and “jackknifing” oh the wet pavement; that he did not know what part of the Packard was involved in the impact, but the right front corner of the tractor was involved; that he had not seen any oncoming southbound traffic before, but, just as the impact occurred, he saw the lights of an approaching southbound vehicle, and it and his tractor also collided; that he was thrown out of the cab of his tractor and rendered unconscious; and, that his vehicle came to a stop on the east shoulder of the road.

Dickson further testified that he had been employed by the defendant corporation since 1958, driving tractor-trailer units or rigs; that he did not know within what distance in feet or rig lengths he could stop his truck at speeds of 50 or 52 mph; that he did not know how far ahead his headlights, on low beam, would reveal an object.

William Bland, a professional engineer, called to the stand by plaintiff, testified: that, at the request of plaintiff’s counsel, he made calculations of stopping distances with respect to a vehicle such as defendants’ tractor-trailer; that such tractor-trailer should be able to be brought to a stop, under the conditions existing at the scene of this collision, in 491 feet or less if traveling at 55 miles an hour, in 410 feet or less if traveling at 50 miles an hour, in 335 feet or less if traveling at 45 miles an hour, and in 265 feet or less if traveling at 40 miles an hour; that when he used the- term “or less” in giving these stopping distances, he intended that term to include a variable distance of between 10 and 20 feet.

Instruction No. 6, given by the court at defendant’s request, informed the jury:

“ * * * that if you believe and find from the evidence that on the occasion in question, the black Packard sedan in which plaintiff’s husband was riding stopped on the traveled portion of U. S. Highway 61, and if you further believe and find that there were no lights on said black Packard Sedan, if you further believe and find that Kenneth Earl Dickson, the driver of the tractor-trailer, in the exercise of the highest degree of care, could not anticipate that a motor vehicle was likely to be parked on the traveled portion on the highway in the northbound lanes without lights, and if you further believe and find that the said Kenneth Earl Dickson was traveling at a speed of SO or 55 miles per hour and that he was in the exercise of the highest degree of care traveling at the said speed, then and in such event plaintiff is not entitled to recover and you will find your verdict in favor of defendants.”

We have italicized that portion of the instruction plaintiff contends causes it to be prejudicially erroneous. Plaintiff asserts that the instruction is ambiguous, misleading and confusing, and contains positive misstatements of law. One of the five prongs of plaintiff’s attack upon the above instruction is that it permitted the tractor-trailer driver’s negligence vel non to be tested or determined by his personal, individual, subjective standard, rather than the impersonal and objective standard required by law. She argues that her witness, Bell, driver of the Ford pickup truck, saw the stopped Packard on the highway when 350 to 500 feet away, but that defendant truck driver, Dickson, did not see it until he was within 75 to 100 feet of it; that particularly under these facts “ * * * to instruct the jury as was done by the emphasized portion of the instruction here, was to permit the issues of the defendant truck driver’s ‘anticipation’ of the presence of a stopped automobile on the highway without lights, and his discovery of such stopped automobile, to be determined by his personal, individual, subjective standard, rather than by the impersonal, objective standard of whether a man of ordinary prudence, exercising the highest degree of care, and ‘anticipating’ the presence on the roadway of a stopped vehicle without lights and appreciating that there was danger, would have or would not have operated the truck at a speed of between 50 and 55 miles an hour under all the circumstances there.” Defendants contend, contra, that the instruction is not subject to this attack; that it required a finding of the exercise by defendant truck driver of the highest degree of care as that phrase is defined by instruction No. 3; that the plaintiff, in contending that instruction 6 substituted the personal standard oi Dickson instead of the standard contained in instruction 3, assumes the position that the jury was not composed of persons of ordinary intelligence; that the instructions are to be read together and considered as a whole, and that the law presumes that the jury followed them. Defendants cite: Stein v. McDonald, Mo., 394 S.W.2d 297, wherein this court said at 1. c. 299 [2], “‘We must assume that the jury was made up of persons of ordinary intelligence who had a reasonable knowledge and understanding of the words used’ ”; Layton v. Palmer, Mo., 309 S.W.2d 561, at 1. c. 570 [20], 66 A.L.R.2d 1242, wherein this court said, “The instructions should be read together and considered as a whole”, and “If, when so read, the instructions are harmonious, clear and complete, error cannbt be allowed because one of them, considered alone, is defective”; and Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59, wherein this court said at 1. c. 65 [10], “The assumption is that jurors follow the instructions.” The cases cited by-defendants are of no assistance to us; none are in point on the question for decision in the instant case; we agree, of course, with the abstract statements quoted from those cases.

By requiring the jury to find that defendant Dickson could not “anticipate” that an-automobile was likely to be stopped or parked on the highway without lights, defendants have specifically injected into the case through instruction 6 an element of actionable negligence not specifically submitted in plaintiff’s verdict-directing instruction, but an element which, as a general rule, may be said to be inherent in such negligence. The general rule is that “Reasonable anticipation of * * * danger is an essential element of actionable negligence; and whether negligence exists in a particular case depends on whether or not a reasonably prudent person [in this case: a very careful and prudent person] would have anticipated the * * * danger and provided, or guarded, against it.” 65 C.J.S. Negligence § 5(2) (a), p. 354. We do not reach or rule the question of whether, under the circumstances of this case, the court erred in giving the instruction because it “ * * * permitted the jury to find that * * * Dickson ‘could not anticipate’ the presence of an automobile without lights on the highway * * * ” which, plaintiff contends, was " * * * contrary to the law [requiring] him [Dickson] to ‘anticipate’ exactly that, amongst other things.” It is not necessary that we do so, for the several reasons stated herein. Having chosen to so inject that element, defendants were required to submit the true test of “ * * * whether the circumstances were such that a man of ordinary prudence [in this case one exercising the highest degree of care] would have [anticipated] the danger * * instead of the false test of whether the person charged with negligence could have anticipated the existence of the stopped automobile and appreciated the danger. Wilt v. Moody, Mo., 254 S.W.2d 15, 19 [7] ; Dixon v. General Grocery Co., Mo., 293 S.W.2d 415, 421 [7]; Beahan v. St. Louis Public Service Co., Mo., 237 S.W.2d 105, 106-107 [1, 2] ; Harris v. Rowden, Mo., 305 S.W.2d 25, 28 [3] ; 38 Am.Jur., p. 679, § 33. The question submitted ought to have been whether or not the defendant driver should have “anticipated,” in the exercise of the highest degree of care, not whether he, according to his own personal judgment, could have “anticipated.”

We hold that instruction 6 is prej-udicially erroneous in that it directed a verdict for defendants, upon a finding that “ * * * Dickson, in the exercise of the highest degree of care, could not anticipate * * * ”, by the application of his personal, individual standard of such care, that an automobile would be stopped on the highway without lights. “The standard of conduct exacted by the law is an external and objective standard * * and not the personal, individual, subjective standard of the actor involved. Dixon v. General Grocery Co., supra, 293 S.W.2d 1. c. 421. The law is “ * * * that whether or not a person exercised a proper degree of care is not to be determined by reference to his own personal judgment in the situation. The law ‘does not permit him to make the determination of what is, and what is not, due care under the circumstances, according to his own judgment.’ ” Beahan v. St. Louis Public Service Co., supra, 237 S.W.2d 1. c. 107.

Defendants, in asserting that instruction 6 is not subject to the attack made by plaintiff, say only that “The instruction, in two places, required a finding by the jury of the exercise of the ‘highest degree of care’ on the part of Dickson;” and, that the “highest degree of care” is defined by instruction 3 given at the request of plaintiff. But, what Dickson could or could not “anticipate,” whether or not in the exercise of due care, is necessarily determinable by his personal, individual and subjective standard. We may not assume that the jury did not follow defendants’ submission, which permitted Dickson, and not the jury, to apply the test of proper care. The submission was a positive misdirection.

Because the case must be reversed and remanded for the error noted in instruction 6 and at a new trial MAI instructions would be used, it is unnecessary that we discuss other attacks made on the instruction; nor is it necessary that we discuss plaintiff’s point as to the admissibility of evidence.

The judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion by HENLEY, J., is adopted as the opinion of the Court en Banc.

All concur, except HOLMAN, P. J., who dissents.

      . Instruction 3 contains the time-honored definition of the phrase “highest degree of care”; that is: that degree of care that a very careful and prudent person would use under the same or similar circumstances. Martin v. Turner, Mo., 306 S.W.2d 473, 478 [8].


source: Caselaw Access Project

author: TOM J. STUBBS, Special Judge.

license: Public Domain

text:
    Joe HUNTER, Respondent, v. Daniel S. NORTON, Administrator of the Estate of Helen Louise Hahn, Deceased, and Jerry Perlstein et al., individually and as representatives of a class consisting of the full membership of the International Ladies’ Garment Workers’ Union, AFL-CIO, Southern Missouri-Arkansas District Council of International Ladles’ Garment Workers’ Union, AFL-CIO and Local 307 of International Ladies’ Garment Workers’ Union, AFL-CIO, Appellants.
    No. 51995.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.

      Dwight Crader, Sikeston, for appellants.
    Blanton, Blanton & Rice, Sikeston, for respondent.
   TOM J. STUBBS, Special Judge.

This appeal results from judgment entered upon a jury verdict in favor of plaintiff for $15,800.00 and the action of the trial court in overruling defendants’ motion to set aside verdict and alternative motion for new trial. Defendant driver Helen Louise Hahn died before this action was filed.

Appellants contend (1) testimony of a former defendant was erroneously admitted in violation of the “Dead Man’s” Statute, Section 491.010, RSMo 1959, (2) as a matter of law they were free of negligence, and (3) verdict directing instruction given by the court at the request of plaintiff constituted prejudicial error.

Percy Reed, driver of the automobile in which plaintiff was riding as a passenger, was a defendant in this suit as originally filed. However, Reed was dismissed as a party defendant upon plaintiff’s execution of a covenant not to sue, the consideration for which was a payment to plaintiff on behalf of Reed of the sum of $4,500.00. When this suit went to trial, Percy Reed was not a party to the action.

Section 491.010, supra, to the extent that it is urged by appellants to be a disqualifying statute with respect to witness Reed, provides: “* * * in actions where one of the original parties to the * * * cause of action in issue and on trial is dead, * * the other party to such * * * cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, * * * and where an * * * administrator is a party, the other party shall not be admitted to testify in his own favor, * *

Percy Reed was not a party to the cause of action “in issue and on trial.” He testified neither in his own favor nor in favor of any party to the action claiming under him. The “Dead Man’s” Statute was never intended to apply in the circumstances of this case and thus disqualify a witness to the casualty who was neither a party to nor had any interest in the outcome of the litigation. Reed’s relationship to the defendant administrator was not that of “the other party” and additionally as noted above he was not “admitted to testify in his own favor.” It is our view that Reed’s testimony was properly received in evidence. Neither Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393 nor Wilcox v. Swenson, Mo., 324 S.W.2d 664, cited by appellants, in any way conflicts with the view we here express.

Appellants’ contention that the evidence failed to make a submissible case against them requires its review, with due regard, of course, to the well-settled proposition that the evidence be viewed in the light most favorable to the prevailing party.

Highway 61 runs generally north and south. Within the city limits of Sikeston, Missouri, it forms an inverted “Y” ( Y ) intersection with North Kingshighway at a point where Highway 61 curves from north to southeast. North Kingshighway enters Highway 61 at its west edge.

Plaintiff was a passenger in an automobile generally northbound on North Kings-highway, operated by Percy Reed. Mr. Reed stopped his vehicle at a stop sign located on North Kingshighway at its entrance to Highway 61.

Mr. Reed saw the defendant vehicle southbound on Highway 61 when it was about a quarter of a mile north of the stopped Reed automobile. Reed started his car forward and crossing the southbound lane of Highway 61, turned left and into its northbound lane. A collision between the defendant and Reed vehicles occurred 129 feet north of the south edge of North Kingshighway where it enters Highway 61. The Reed vehicle was entirely and the defendant vehicle was at least partially in the northbound lane of Highway 61 when the impact occurred. The collision took place entirely in the proper lane for the northbound Reed car and entirely in the wrong lane for the southbound defendant vehicle.

There was evidence of 50 feet of skid marks behind defendant’s car starting in the southbound lane of Highway 61 and of skid marks of 35 feet behind Mr. Reed’s car which also started in the southbound lane of the highway. No eyewitness to the collision except Mr. Reed testified.

Appellants contend that this case falls within the “evidence of mere skidding does not make, a submissible case” rule announced by Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59. We do not agree. The evidence was that the defendant vehicle, traveling at a high rate of speed, swerved or, in the terminology of the evidence, turned into the wrong lane of the highway and that the collision resulted. A submissible case for the consideration of the jury was clearly made.

We turn to the appellants’ assignment of error with respect to Instruction No. 2 given by the court over the objection of the defendants. “INSTRUCTION NO. 2. It is admitted that the late Helen Louise Hahn was driving one of the cars involved in the collision referred to in the evidence, and, that at the time of said collision she was the Agent and Employee of the International Ladies Garment Workers’ Union AFL-CIO, Southern Missouri-Arkansas District Council of the International Ladies Garment Workers’ Union, AFL-CIO.

“Your verdict must be for the plaintiff, if you believe: First, that the late Helen Louise Hahn either: failed to swerve her car to the right, or allowed a portion of the car she was driving to extend over on to the left or north bound traffic lane of said Highway 61, and

“Second, that the late Helen Louise Hahn’s conduct, in any one or more of the respects submitted in Paragraph First, was negligent, and

“Third, such negligence of the late Helen Louise Hahn directly caused or directly contributed to cause any damage the plaintiff may have sustained.

M.A.I. 17.02 Modified

Prepared and submitted by;

BLANTON, BLANTON & RICE, Sikes-ton, Missouri

Attorneys for the Plaintiff

Given M.C.”

The giving of the instruction was error and we judicially determine that the error was prejudicial. Its first paragraph should have been omitted in its entirety. It concerns a matter not in issue in this case. The stipulation of the parties to the effect that Helen Louise Hahn was the driver of the defendant vehicle and that at the time of the collision she was the agent of defendant Union, should have been read to the jury as a part of the evidence, if either party or the court believed that failure to so inform the jury might result in any misunderstanding or confusion on the part of the trial jury. Any reference to the subject beyond this should have been confined to counsel’s jury argument.

The second paragraph is objectionable in several particulars. There is no evidence here to support the submission of the defendant’s failing to swerve to the right. If there had been, it would have been error to submit “failed to swerve her car to the right” without preceding it with the phrase “defendant knew or by use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have.” M.A.I. 17.04.

The language “allowed a portion of the car she was driving to extend over onto the left or northbound traffic lane of said Highway 61” is improper. M.A.I. 17.02 uses the words “drove on the wrong side of the road” to submit this issue. To repeat again what this Court has said on this subject as recently as Motsinger v. Queen City Casket Company, Mo., 408 S.W.2d 857, loc. cit. 860: “* * * Tf counsel are permitted to “improve” the approved instructions, even within the confines of specific precedents, the value of these instructions will be lost. Each such “improvement” by one counsel will prompt an offsetting “improvement” by his opponent and after a while the court will not be able to find the original with a divining rod.’ ” See also Leathern v. Longenecker, Mo., 405 S.W.2d 873.

Finally, Instruction No. 2 omitted the words "for which he has not been fully compensated by Percy Reed,” which should have been added at the end of the last paragraph. As pointed out in the “Notes on Use” following M.A.I. 7.01, it is essential that this clause be added where, as here, a satisfaction or partial satisfaction of plaintiff’s damage is an issue in the case. This issue was tendered by Instruction No. 5 but ignored by Instruction No. 2. This omission resulted in an inconsistency when Instructions 2 and 5 as given are considered together.

The verdict directing instruction which should have been given in this case, rather than Instruction No. 2 which was given, follows:

Your verdict must be for plaintiff and against both defendants if you believe:
First, Helen Louise Hahn drove on the wrong side of the road, and
Second, Helen Louise Hahn was thereby negligent, and
Third, as a direct result of such negligence the plaintiff sustained damage for which he has not been fully compensated by Percy Reed.

The judgment is reversed and the cause is remanded.

All of the Judges concur.


author: LAURANCE M. HYDE, Special Commissioner.

text:
    Larry McNEAL and Ethel McNeal, Respondents, v. Gerald BONNEL and Otho Bonnel, Appellants.
    No. 52047.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 13, 1967.

      Myrl B. Sternke, Palmyra, Rendlen & Rendlen, Hannibal, for appellants.
    Dan Bollow, Bollow, Crist & Bollow, Shelbina, for respondents.
   LAURANCE M. HYDE, Special Commissioner.

Action to determine title to real estate. On motion for summary judgment, the court adjudged plaintiffs to be the fee simple owners of the land involved and defendants have appealed.

On May 8, 1952, the land involved and other land was owned by John William Thomas, who made a will on that date containing the following provisions:

“Second: I have but one child, John William Thomas, Jr., my son who is now living in the home with me. But being desirous of preserving for him what little estate I have accumulated and preventing from squandering the same before he arrives at an age of discretion, I hereby grant, give, devise and bequeath all of my property, both real and personal, to him in trust under the terms and conditions hereinafter provided.
“Third: I nominate and appoint one Clinton Turner as Trustee. I desire that the Trustee shall have a full, absolute and complete discretion with reference to my property. He shall have the right to sell and dispose of the same under orders of Court, or to invest or reinvest the same or the proceeds from the sale of the same in such property of such kind and character as he deems advisable. The income from my property he shall pay annually to my said son. However, if in the discretion of my said Trustee the circumstances of my son require it, he shall have the right at any time to use all or any part of the corpus of this Trust for the support, maintenance and care of my said son, this being left solely and completely to his discretion and judgment.
“This Trust shall remain alive and in force until my said son shall attain his 30th birthday, and at that time the Trustee shall make final settlement and pay over to and deliver to my said son the corpus of this Trust. If my son shall have attained his 30th birthday prior to my death then this entire Trust shall be void and all of my property shall be delivered to him by my Executor.

“Fourth: In the event my son shall predecease me or shall die before he attains his 30th birthday and the corpus of the Trust is delivered to him, then I give, grant, devise and bequeath my estate, or whatever is left thereof, unto the bodily heirs of my said son. But if he have no bodily heirs then unto Zollie Junior Thomas, my nephew, now in the State of Michigan.”

The testator died in 1956, administration costs and debts exhausted all his personal property and required sale of 60 acres of the 100 acres of land he owned. The Probate Court, ignoring the trust provisions of the will, made an order of distribution, on June 3, 1957, under Sec. 473.617 (statutory references are to RSMo and V.A. M.S.) stating as to the 40 acres herein involved that “the title thereto be * * * assigned, transferred and distributed to * * * John William Thomas, Jr.” Thereafter, on August 5, 1957, John William Thomas, Jr. (hereinafter called Thomas, Jr.) conveyed the 40 acres to Richard V. and Goldie P. Broyles by general warranty deed, who on March 1, 1960, conveyed the land by general warranty deed to plaintiffs. Thomas, Jr., was not 30 years of age on August 5, 1957, when he conveyed to plaintiffs’ grantors; and after he attained the age of 30 years, he made a general warranty deed on May 2, 1961, to convey the land to defendants. All three deeds were recorded within one day after being executed. It was admitted “that Gerald Bonnel had actual knowledge of the claim of plaintiffs to the real property which is the subject matter of this action before May 2, 1961.”

Defendants contend the decree of distribution of the Probate Court was void because in conflict with the will of the testator, citing Hughes v. Neely, Mo.Sup., 332 S.W.2d 1, 11, as to the effect of a void judgment. We agree with this contention and hold that the decree of distribution contrary to such plain provisions of the will is void, since it is admitted that Thomas, Jr., was not 30 years of age at the time this decree was entered. We will decide this case without giving this decree any effect whatever. Moreover, although no trustee ever took charge of the land, the decision in this case must be the same as if he had done so but did not exercise his power to sell the land.

Plaintiffs, however, rely on Section 442.430, which provides: “Where a grantor, by the terms of his deed, undertakes to convey to the grantee an indefeasible estate in fee simple absolute, and shall not, at the time of such conveyance, have the legal title to the estate sought to be conveyed but shall afterward acquire it, the legal estate subsequently acquired by him shall immediately pass to the grantee; and such conveyance shall be as effective as though such legal estate had been in the grantor at the time of the conveyance.” Plaintiffs also rely on Section 442.020 which authorizes conveyance by deed “of any estate or interest” in land. Plaintiffs say Thomas, Jr., at the time of the deed to them, had a contingent remainder (attaining the age of 30 years would give him the fee simple title if never sold by the trustee) and that such a contingent remainder is alienable under this statute, citing Grimes v. Rush, 355 Mo. 573, 197 S.W.2d 310. In that case we held even quit claim deeds transferred the right of those designated as heirs of the body of a life tenant and that “upon their surviving the life tenant as the sole ‘heirs of her body’ said deeds effected the transfer of the fee simple title to said land to their grantee.” See note on this case 12 Mo.Law Rev. 218 with reference to Hudson, Transfer and Partition of Remainders in Missouri, University of Missouri Bulletin 14 Law Series 3, 14. We agree with Professor Hudson’s conclusion, namely: “It can no longer be doubted that a contingent remainder is an ‘interest’ in land within the meaning of the Missouri statute.” As to equitable interests the American Law Institute Restatement of Trusts 2d, Sec. 132, states that “the beneficiary of a trust has power to transfer his interest”; and this is limited only by lack of capacity, Sec. 133, or by trust provisions preventing alienation, Secs. 149-162; II Scott on Trusts 2d Ed., 982-987, Secs. 132, 132.1. Professor Scott (page 986) says: “The beneficiary of a trust can transfer his interest whether it is a vested or contingent interest * * *. Where a trust has been created * * * a beneficiary has a property interest even though his interest is contingent. Whether his interest can be reached by his creditors involves a question of policy * * *. The beneficiary, at any rate, has an interest which he can assign.” Likewise Bogert Trusts and Trustees 2nd Ed., Sec. 188, states: “The general rule of assignability is applicable to contingent as well as vested equitable interests.”

Defendants claim that any deed made by Thomas, Jr., before he attained the age of 30 years was void and could never convey title, after acquired or otherwise, citing Bixby v. St. Louis Union Trust Co., 323 Mo. 1014, 22 S.W.2d 813 (for criticism of this case see Spendthrift Trusts 2d Ed., Griswold, Sec. 374); Humphreys v. Welling, 341 Mo. 1198, 111 S.W.2d 123, holding ineffective a deed by a trust beneficiary of land devised in trust for him until he reached the age of 30 but who died before he was 30; Kessner v. Phillips, 189 Mo. 515, 88 S.W. 66, in which it was held there was no trust created; Gentemann v. Dyer, Mo.App., 140 S.W.2d 75, in which all power of alienation was expressly denied the settlor’s son and was reserved to the trustee alone, giving no estate in the land to the son but only right of occupancy. Defendants’ argument for this claim is that testator’s will created a spendthrift trust and they say any conveyance made during the period of this trust is void. As hereinafter stated we cannot agree that a spendthrift trust was created and consider the proper rule to be: “In the absence of an express or statutory restraint on alienation, the interest of the beneficiary of a trust is subject to alienation by the beneficiary’s voluntary act.” Spendthrift Trusts, Griswold 2d Ed., Sec. 10; Restatement of Trusts 2d, Sections 132-133; Scott on Trusts, Sections 132— 133. It appears that the only Missouri statutory provision concerning spendthrift trusts is Sec. 456.080 making them subject to claims of a wife or children for alimony, support and maintenance.

A true spendthrift trust would “provide in express terms that the interest of the beneficiary shall be inalienable by him, and that his creditors cannot reach it in satisfaction of their claims.” Spendthrift Trusts, Griswold, Sections 1, 8; II Scott on Trusts 2d Ed., 1038-1046, Sections 151, 152; Restatement of Trusts 2d, Sections 152-153. There is no such provision in this trust so we consider it to be in the nature of a discretionary trust; that is one in which the trustee has discretion in the distribution of income or corpus or in the use of the corpus. See Spendthrift Trusts 2d Ed., Griswold, Sections 17, 28, 422-428; Restatement of Trusts 2d, Section 155, Comments (1) b and c. In England spendthrift trusts are unlawful but discretionary trusts are permitted and frequently used. II Scott on Trusts 2d Ed., 1085, Sec. 155; Bogert Trusts and Trustees 2d Ed., Sec. 221. In this case the trustee was given no discretion as to payment of the income from the property. The will provided: “The income from my property he shall pay annually to my said son.” The trustee’s discretion was “to sell and dispose of” any trust property with court approval “to invest or reinvest the same” and “to use all or any part of the corpus * * * for the support, maintenance and care of” the testator’s son, if the circumstances of his son required it. A trust in which the trustee was given similar powers to sell, reinvest and expend corpus for the benefit of the beneficiary was held not to be a spendthrift trust in Kingman v. Winchell, Mo.Sup., 20 S.W. 296.

Our view is that the better authorities show that a spendthrift trust of either income or principal is one in which by the terms of the trust “a valid restraint on the voluntary and involuntary transfer of the beneficiary is imposed.” Restatement of Trusts 2d, Secs. 152, 153. However, as stated in comment c, Sec. 152: “No particular form of words is necessary for the creation of a spendthrift trust * * * if by the terms of the trust the settlor manifests an intention to create such a trust.” See Illustrations 1, 2, 3 and 4, comment c, Sec. 152. Our conclusion is that the trust in this case is not a spendthrift trust because it contains no provision that can reasonably be construed as a restraint on transfer of either income or principal of the trust by Thomas, Jr., although any transfer of the land which constituted the corpus was subject to the trustees’ power to sell. All of the income was required to be paid to him annually without any qualification. The corpus (the land) was to go to him absolutely when he reached the age of 30 years, if not sold by the trustee. See First National Bank of Bolivar v. Burns, Mo.App., 199 S.W. 282; Kessner v. Phillips, 189 Mo. 515, 88 S.W. 66.

Since the trustee did have discretion to use the corpus for the support of Thomas, Jr., as well as to sell and reinvest it, we consider this to be a discretionary trust, Restatement of Trusts 2d, Sec. 155, rather than a trust for support, Sec. 154 (the income not being limited to support); but in either of these classes of trusts the reason a transferee or creditor cannot get the interest of the beneficiary is the nature of the beneficiary’s interest rather than any prohibition of alienation. That is a transferee or creditor cannot compel the trustee to pay anything to him when the beneficiary could not compel payment to himself. However, as stated in Restatement of Trusts 2d, comment g, Sec. 154: “If by the terms of a trust it is provided that the trustee shall during a designated period pay or apply only so much of the income and principal or either as is necessary for the education or support of the beneficiary but it is also provided that any income and principal or either not so paid or applied shall ultimately be paid to the beneficiary or to those deriving title through him, the beneficiary can transfer and his creditors can reach so much of the income and principal as is not necessary for the education or support of the beneficiary.” Cases supporting this view are cited in the Appendix to Restatement of Trusts 2d, p. 232.

We hold (1) the trust created by the will was a discretionary trust (discretionary as to use of corpus but not income); (2) Thomas, Jr., had a contingent interest in the land involved to become vested with the fee when he attained the age of 30 years, if not sold by the trustee for his support; (3) there was no provision in the will to prevent alienation by Thomas, Jr; (4) plaintiffs have title in fee under the warranty deed of Thomas, Jr., because the land was never sold by a trustee and Thomas, Jr., has attained the age of 30 years.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by HYDE, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Harold FRIEDMAN, Appellant.
    No. 51954.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 13, 1967.

      Lester W. Duggan, Jr., Florissant, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Claude W. McElwee, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
   PRITCHARD, Commissioner.

Defendant was convicted by the verdict of a jury and the judgment of the court of a violation of § 301.400, RSMo 1959, V.A.M.S., which provides:

“Any person who removes, covers, alters or defaces, or causes to be destroyed, removed, covered, altered or defaced, the manufacturer’s number, the motor number or other distinguishing number on any motor vehicle, or number or other distinguishing number on any motor vehicle tire, the property of another, for any reason, shall be deemed guilty of a felony * *

Defendant attacks the indictment of the grand jury, the sufficiency of the evidence for a conviction, the verdict, and the judgment, allocution and sentence.

Defendant appeared in person and by counsel at the trial. The following evidence was adduced:

Donald Redford owned a 1963 Chevrolet Impala on March 23, 1964, which was equipped with a 4-speed manual transmission. That evening he parked it in front of his home at 4220 Linton Street, St. Louis, Missouri. The next morning the car was gone. Redford saw it next the following evening at Swanson’s garage on St. Charles Rock Road. The car had been stripped of the carburetor, the alternator, battery, radio, spare tire and the 4-speed transmission. The manufacturer’s serial number on the car was 31847, S-176556. Redford had purchased the car used from an individual, at which time he checked the serial number on the door but did not check the other number.

Robert Edward Kunz, an auto body repairman, owned a 1957 Chevrolet in which he had installed a 4-speed transmission which he purchased used on April 2, 1964, from Dixie Auto Parts on Lucas and Hunt Road. He there first dealt with a man named “John,” whom he paid a $5.00 deposit and received a receipt marked “balance of $171.60.” Kunz told John the first four digits of the number on the transmission which the latter marked down on the top of the receipt. The next day Kunz returned to the auto parts store and talked with defendant, whom he identified at the trial, and completed the purchase of the transmission. He paid part in cash and part by check, the payment on which was stopped at his bank. The numbers on the transmission were still there. Defendant gave Kunz a receipt, and Kunz started to mark the number on it and defendant told him it was not necessary. Defendant said he had to have a number for his own records and taking a set of heavy dies he put the numbers 1, 2, 3, 4 over the top of the other numbers. The transmission in evidence (State’s Exhibit 3) shows these numbers superimposed. Kunz drove his car with the transmission in it for about five days when Sergeant Robert H. Mudd and two other men (one from the National Automobile Theft Bureau) examined the transmission. Kunz later removed the transmission and took it out to Troop C of the Missouri State Highway Patrol where he gave it to a Sergeant Maxey.

Walter D. Ryan, a State Highway Patrolman, recovered the abandoned and stripped car of Redford, at which time he took down the serial number S 176556 from the left side of the frame.

Sergeant Mudd examined the portion of the transmission on Kunz’ car. He was able to read “S” (which means St. Louis production), a first digit “1” and three ending digits “556,” and a part of a second number which appeared to a “7.” The dies which were seized from Dixie Auto Parts were by him placed over the numbers 1, 2, 3, 4, which were larger than and which partly obliterated the factory installed number below. Raymond Dreher, Sergeant of the Missouri State Highway Patrol, also examined the transmission and took scotch tape “lifts” of the numbers 1, 2, 3, 4. Dreher saw other numbers on the tape which had been stamped over — an “S,” then a space, and the numbers “556.”

Robert Sattler, a special agent of the National Automobile Theft Bureau, also inspected the rear collar of the transmission on Kunz’ automobile where he saw ⅜ inch numbers 1, 2, 3, 4 stamped and under those numbers “S, 1” and “556,” with some numbers in the middle which he could not read. Dale Johnson was the superintendent of inspection at the Chevrolet plant of General Motors Corporation in St. Louis. It was his responsibility to make sure that numbers were placed on engines and transmissions when required by their specifications. He testified that each vehicle is identified with a serial number which indicates: the model; the year the car was built; body style; where it was built; and a vehicle identification number which shows the total vehicles built at a given location, beginning with the number 100,001. “S” is on a vehicle built in St. Louis. “Any vehicle that is equipped with a 4-speed transmission has an ‘S’ with the last six digits or the six digits of the serial number stamped adjacent to the manufacturer’s number” placed on the transmission where the engine is 300 h. p. or in excess of that. He checked Chevrolet’s records for No. 31847 S 176556. The first digit, 3, is a 1963 model; 1847 indicates the body style, a 2-door super sport or sport coupe; “S” indicates it was built in St. Louis; and 176556 indicates it was the 76,556th unit to come off the line in that model year. If the unit was equipped with a 4-speed transmission it (the number) would be stamped on the transmission and also on the engine if the latter were 300 h. p. or in excess. The entire number would also be embossed on a plate and affixed to the hinge pillar on the left-hand side. On checking, he found that the instant car was equipped with an RPOL-74 engine which is a 300 h. p., 327 cubic inch V-8, and an RPOM-20 which is a 4-speed transmission. Therefore the unit would have had the number on the hinge pillar, engine and transmission.

Defendant did not file his motion for new trial on time. Although he alleges in his brief that he filed a request for thirty days’ additional time, forty days in all, to file such motion, the transcript does not reflect this. The date of the jury’s verdict was May 26, 1965, and forty days would have elapsed on July 5, 1965. The motion was filed July 7, 1965, two days late even if the request for additional time was granted. While we do not ordinarily consider the sufficiency of evidence in these circumstances, we note in passing that the evidence quite clearly shows that defendant did alter the number on the transmission in Kunz’ presence by use of the heavy dies. Defendant’s first point is that the court erred in failing to sustain his Motion to Dismiss directed at the indictment because it “did not state facts sufficient to constitute any offense against the State of Missouri and more particularly, failed to state facts constituting an offense prohibited by Section 301.400 of the Revised Statutes of Missouri.” The sufficiency of the indictment is one of the matters we are required to examine under Criminal Rule 28.02, V.A. M.R.

The argument of defendant directed at the indictment is that § 301.010, RSMo 1959, V.A.M.S., does not define a manufacturer’s number, but only a “manufacturer” (“any person, firm, corporation or association engaged in the business of manufacturing or assembling motor vehicles for sale”). Neither does the chapter, says defendant, specify where such number should be placed on a motor vehicle. Therefore, he says further, the statute under which he is charged should be read and interpreted in the light of its ordinary meaning and common understanding. This, as we understand, defendant means that the ordinary manufacturer’s number is the one usually referred to by the public — on the door or hinge post of the left side of the vehicle or on the engine, and not on any other place. Cited is the case of Commonwealth v. Unkrich, 142 Pa.Super. 591, 16 A. 2d 737. There the defendant was charged with possessing an automobile upon which a certain manufacturer’s engine number had been omitted, obliterated, and defaced. The evidence showed that two of the automobiles in the possession of defendant, a dealer, had been stolen, and these and other cars involved in the case had the secret number (cut on the metal frame underneath the right rear mudguard, and corresponding to the serial number appearing on the door frame) defaced. Each car also had engine numbers and manufacturer’s serial numbers different than originally assigned to the car. There was no evidence that defendant stole the cars, nor that he defaced the numbers. The statutes there made it a misdemeanor to possess a motor vehicle on which the manufacturer’s serial number had been omitted, obliterated, or defaced, and a felony to sell such motor vehicle with knowledge of the destruction, removal, covering, alteration or defacement of the engine number or manufacturer’s serial number. The judgment of conviction was reversed because the commonwealth failed to prove that defendant had knowledge of the number defaced, and the trial court charged the jury that it was not necessary for a conviction to prove such knowledge. The Unkrich case is clearly distinguishable because our statute covers the affirmative act of defacing a motor number or other distinguishing number on any motor vehicle. The evidence here shows that defendant did just that in the presence of Kunz, and the indictment alleges that defendant “did then and there wilfully, unlawfully and feloniously alter and deface the manufacturer’s number on the transmission of a 1963 Chevrolet automobile, the property of Donald Redford, without the consent of the said Donald Redford; contrary to Section 301.400, Revised Statutes of Missouri, * * The statute does refer to distinguishing numbers other than the commonly known engine numbers and door plate numbers. The number on the transmission here is without doubt a distinguishing number of the manufacturer. No statutory definition was necessary on this established fact. The statute is clearly intended to prevent traffic in these parts of automobiles which are subject to theft and transfer of stolen goods. The defendant’s contention that the indictment did not allege a criminal intent is erroneous — the words above show such intent, that he did wilfully, unlawfully and feloni-ously alter and deface the manufacturer’s number. The indictment fully informed defendant of the charge, the statutory violation, against him.

The verdict here finding the “defendant guilty of Altering and Defacing Manufacturer’s Number on Automobile Transmission, as charged in the Indictment, and assess his punishment at 3 yrs. (three),” is responsive to the indictment and is within the permissible limits of punishment under said § 301.400, supra. Although the trial court held the motion for new trial (not timely filed on July 7, 1965) until January 7, 1966, when it was denied, the record shows that on that date defendant was present with his then counsel, William J. Hough, was informed of the jury’s verdict, allocution was granted, and in accordance with the verdict was sentenced to three years’ custody in the Department of Corrections. All the requirements of Criminal Rule 28.02, V.A.M.R., were complied with by the trial court. Although the delay in sentencing after verdict was not explained, we fail to see any prejudice to defendant resulting therefrom. We do not consider any other matters in the motion for new trial because those issues (pertaining to voir dire examination, admissibility of evidence, and the giving and refusal of instructions to the jury, and argument of counsel) are not properly preserved for review. State v. Hamilton, Mo., 391 S.W.2d 872. We have examined the allegations in the motion for new trial and have determined that no plain error under Criminal Rule 27.20 (c), V.A.M.R., affecting defendant’s substantial rights took place.

The judgment is affirmed.

BARRETT and STOCKARD, CC.,. concur.

PER CURIAM:

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

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. John William ASTON, Appellant.
    No. 51987.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.

      Richard J. Rabbitt, St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Michael J. Yatkeman, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   EAGER, Presiding Judge.

Defendant was found guilty by a jury of second degree burglary and of stealing. The jury assessed his punishment at imprisonment for two years on each offense, separately. The trial court, obviously acting under § 560.110, RSMo 1959, V.A.M.S. (to which all statutory citations will refer), as amended in Laws 1959, H.B. 260, sentenced defendant to two years for each offense, the terms to run concurrently. We have recognized that the Court has that power under the statute. State v. Sims, Mo., 386 S.W.2d 396; see also State v. Taylor, Mo., 336 S.W.2d 495.

Defendant was represented prior to trial and throughout the trial by counsel of his own selection. A comprehensive motion for new trial was filed; when this was overruled, counsel filed notice of appeal and ordered, approved and filed the transcript, after having procured additional time. Counsel has, however, elected not to file a brief on appeal, hence we consider those assignments of the motion for new trial which are sufficient under Rule 27.20, V.A.M.R. We note here that this practice will not be continued under our Rule 28.02 as recently amended (Journal of Missouri Bar, February, 1967), effective September 1, 1967. Since one of the assignments questions the sufficiency of the evidence, it will be necessary to state the evidence in some detail.

In the early morning of May 1, 1964, a tavern and restaurant operated by one Louis Seiler at 1943 Woodson Road in Overland, St. Louis County, was broken into. Seiler had closed it securely at 2:45 a. m. when he left. When he next saw the place about 9:00 a. m., having been called by the girl who reported at 8:00 a. m. for the day shift, he, as well as the police, who came about 8:15, found this situation: the heavy wire screen covering a large exhaust fan at the rear of the kitchen had been pulled or forced up from the bottom of the frame, and two blades of the fan had been bent inward, leaving an opening from the outside ; the coin box of a pinball machine had been pried open and removed and the wooden frame around it had been split, with strips of wood on the floor underneath; the cash drawer or coin box of the pool table (which was coin operated) had been pried open and was empty; there was no money in either machine; a drawer under the cash register had been ransacked and from it a blackjack owned by Seiler had been taken; a Winchester shotgun, which was owned by Harry Wipke and was being kept temporarily at the tavern, was gone, and the contents of a filing cabinet had been “dumped out and disturbed.” A sliding window was also found open; this locked with a “throw over” latch from the inside. The pinball machine took dimes; the pool table quarters. Both were owned by one Otis Greif and his father and they were the only ones who opened them and took out money. Seiler did not even have keys.

At approximately 3:30 a. m. on May 1, 1964, an officer of the Overland police, on regular patrol, saw a 1958 Pontiac in the parking lot adjacent to the tavern. He went over to the car; there were two men in it. He talked to the driver and asked him what they were doing there; the latter replied that they were waiting for some “girl friends.” The driver gave his name as Rickett, and said that the name of the other man (who appeared to be asleep) was John Aston; the officer looked at Rickett’s driver’s license, took the license number of the car and made notations of the information he had received. At about 5:00 p. m. on that day he saw the same car in the “storage yard” of the Overland garage and saw this defendant at the Overland police station. He identified defendant at the trial as the same man he had seen in the car as a passenger at 3:30 a. m. on May 1, 1964, in the lot adjacent to the tavern. The officer incorporated his notes into the police report which he reviewed before testifying.

At 12:30 a. m. on May 1, 1964, William Pierce, a patrolman of the St. Louis County police, driving alone, pursued a 1958 white and green Pontiac, traveling at high speed on Lindbergh Boulevard, but lost it. There were one or two occupants besides the driver. He noted that it had one taillight out. At about 3:30 to 4:00 a. m. he saw what he believed to be the same car, occupied only by the driver, on McKelvey Road; he followed it to St. Charles Road, thence west on St. Charles; when the car reached the overpass of Interstate 270, it made a right turn on a ramp which took it to the southbound lanes of 270; when it reached those lanes it was driven north for a short distance, then crossed the median strip and was driven on north in the northbound lanes, attaining speeds in excess of 75 miles an hour. The patrolman managed to overtake it and stop it with his red light and siren. He approached the driver and told him that he was under arrest for careless and reckless driving and for speeding, and instructed him to come out of the car. The driver was this defendant and was so identified at the trial. As defendant started to come out of the car, he was apparently shoving something underneath the seat. The officer placed handcuffs on him and had him stand at the front of the car; he then searched the car and found the following articles: a quantity of dimes, quarters and nickels both on the front seat and on the floor; a blackjack, a shotgun, and a tire tool or lug wrench were found under the seat. A portion of the money on the seat was in a handkerchief, the rest was loose. The money was counted, being $59.90 in dimes, $2.75 in quarters, three nickels and two pennies; all the articles were taken to the police station and marked, the money and handkerchief being placed in a suitable container. All were produced and identified at the trial. The car was towed in to the police station or a garage; defendant was taken first to the county police station and processed, but he was turned over to the Overland police at about 11:00 a. m. When the officer asked him at the scene about the money and gun, he said that he was a coin collector and that he had bought the gun for $7 from a man whom he did not know; he further stated that he carried the lug wrench and blackjack for his protection. The shotgun was positively identified at the trial by Harry Wipke as the one which belonged to him and which had been left at the tavern; the blackjack was stated by Seiler to be identical to the one which had been stolen from the tavern.

Seiler testified that defendant had been in his tavern on the night of the burglary, that he had served him drinks, and that a man known to him as “Rick” had been with him. Defendant’s trousers and shirt were sent to the Highway Patrol for testing, with a sample of grease and paint from the exhaust fan. A Highway Patrol chemist testified that grease found on defendant’s shirt and trousers was of the same type as that found on the fan; another examiner testified that the markings on the. wood taken from the machines in the tavern were prymarks and that they could have been made by the tools (tire tool and screwdriver) produced and identified at the trial; if not, then by similar tools.

At the Overland police station defendant was again “processed” taking perhaps an hour or an hour and a quarter. At about noon Detective Leonard Crump started to question him about the burglary and he denied any participation; they then talked, more or less casually for perhaps thirty minutes, after which defendant was again questioned. At that time he said that he had “domestic problems and also other problems, and that he might as well get it straightened out.” The officer testified that defendant then stated orally: that he and another man drove to the tavern at about 3:00 a. m., that the other man sat in the car while he, the defendant, went around to the back of the tavern, pried open a screen over the fan opening and crawled in; that he then “pried open some pinball machines,” took a shotgun and left; that as they were backing out an officer of the Overland police drove up and questioned Rickett (whom he identified as the other man), took their names, etc., and told them to leave; that they then went back to a restaurant where they had left Rickett’s car, and separated; that on his way home he was arrested by a county policeman; that they had left a third man in Rickett’s car because he was intoxicated and had “passed out.” The only objection, if it be such, to any part of the foregoing testimony was made after a full recital of defendant’s statements concerning the burglary and preceded a statement of what the Overland police officer had said and what defendant and Rickett did thereafter. The statement of counsel was as follows: “I obj ect to what he said that day. I think it should be more specific.” The Court said: “Overruled.” We digress here to say that this was in nowise a valid objection to a confession, as such. It stated no reasons whatever, and actually seems to have been directed at procuring more specific wording.

Another officer, Thomas Hardesty, was also present at the interrogation. He corroborated the oral statements of defendant as just related. All the foregoing consumed about an hour, during which time both defendant and the officers had eaten hamburgers and had drunk coffee. At about 1:00 o’clock defendant personally wrote a confession, actually printing the body of it in his own hand, and, when completed, he signed it. The officers testified that the wording was entirely his own. It contained no more, and probably less, than his oral statements. In toto, omitting signature and witnesses, it was as follows: “Voluntary statement under arrest. Date: May 1, 1964; time, 1 P.M.; place, Overland Police Station. I, John William Aston, am 22 years of age and my address is 920 South Main Street, St. Charles, Missouri.

“I have been duly warned by Sgt. Ralph Crump and Det. Tom Hardesty, who has identified himself as Detective of the Overland Police Department that I do not have to make any statement at all, and that any statement I make may be used in evidence against me on the trial for the offense concerning which this statement is herein made. Without promise or hope of reward, without fear or threat of physical harm, I freely volunteer the following statement to the aforesaid person:

“At approximately 3 A.M., May 1st, myself, John Aston and Leonard Rickett left Wilson’s Restaurant and went to Lou’s Place to burglarize it. We parked behind the place and I went into it through a big fan. While inside I broke into the pinball machine and the pool table. I got the money and left. While leaving, an Overland Police car drove up and questioned Rick. We then went back to Wilson’s restaurant and picked up Rick’s car. Rick said he was going home. While on my way home I was taken into custody by the St. Louis County Police.
“I have read this statement consisting of 1 page and the facts contained therein are true and correct.” The first portion, which stated the warnings, was printed on a form generally in use. The remainder was written by the defendant and the personal details were inserted by him. These officers testified: that defendant was told that he might call an attorney or a bondsman, but that he did not do so and gave no reason, except that “there was no one that he wished to call at that time”; that no one struck defendant, threatened him, made him any promises, or offered him food as a “reward” ; that he was not handcuffed when questioned but merely sat in a chair beside the desk; that he wrote on Sgt. Crump’s desk, and that he was permitted to smoke. Defendant did not testify, and no evidence whatever was offered on his behalf to contradict the testimony of these officers concerning the interrogation.

We turn now to defendant’s motion for a new trial. The first two assignments concerning the weight of the evidence and “the law and the evidence” are entirely too general for consideration under our Rule 27.20. State v. Kukovich, Mo., 380 S.W.2d 324; State v. Ivory, Mo., 327 S.W.2d 870; State v. Adams, Mo., 380 S.W.2d 362. In one assignment.defendant complains that the Court erred in not directing a verdict of acquittal because the State “failed to prove a breaking and entering.” This will require no discussion, and we merely refer back to our recital of the evidence. It is perfectly obvious that there was proof of a breaking and entering, and that defendant was connected with it by substantial evidence. State v. Smith, Mo., 357 S.W.2d 120; State v. Armstrong, Mo., 361 S.W.2d 811. In an oral motion for acquittal at the close of the evidence counsel noted that the employee who first opened the tavern on the morning of May 1st was not produced, and that there was no proof that more than $50 in value had been taken. The absence of the girl employee was immaterial; there was abundant evidence to show the breakin. There being sufficient evidence of a burglary, the taking of anything of value would constitute a felony. State v. Crow, Mo., 388 S.W.2d 817; State v. Witt, Mo., 371 S.W.2d 215. We shall refer to this point later in connection with the matter of instructions. The motion for an acquittal was properly overruled.

Prior to trial defendant filed and the Court heard evidence upon a motion to suppress certain physical evidence taken from defendant’s car at the time of his arrest. This included the coins, the shotgun and the blackjack. It was alleged that the seizure was made before defendant’s arrest, that the search was unreasonable, that defendant was “within the peace of the state” and that the seizure violated sundry constitutional provisions, federal and state. The Court overruled the motion, after hearing the testimony of Officer William Pierce. This point is preserved and somewhat amplified in the assignments of defendant’s motion for a new trial, being extended to include other articles pursuant to objections at the trial. We hold that the ruling on the motion was correct. The officer saw defendant violating the law; he was entitled to arrest him and did arrest him prior to any search whatever. He had also seen defendant “shoving” something underneath the front seat before he searched the car. As defendant got out of the car the officer saw loose coins both on the seat and on the floor. Counsel say that the officer had no knowledge that a felony had been committed and that the search of the car was not necessary for his protection, especially since defendant had been handcuffed. The officer was alone. He had no way of knowing what defendant had shoved under the seat. Under these circumstances, the search was reasonable and lawful as an incident to the arrest. State v. Camper, Mo., 353 S.W.2d 676; State v. Witt, Mo., 371 S.W.2d 215; State v. Green, Mo., 292 S.W.2d 283; State v. Edwards, Mo., 317 S.W.2d 441; State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743; State v. Brookshire, Mo., 353 S.W.2d 681; State v. Jefferson, Mo., 391 S.W.2d 885; State v. Wiley, Mo., 412 S.W.2d 485, opinion filed February 13, 1967. In several of the cases just cited cars were searched after the arrest. In Camper, the arrest was made for a traffic violation, and items found upon a search of the car considerably later were held to be admissible in a burglary prosecution. The facts and ruling in that case are particularly applicable here. See, also, Witt, supra, as involving rather similar facts. The search and seizure were lawful, and the various articles, having been specifically identified and traced, were admissible in evidence. None of defendant’s constitutional rights were violated, and the exhibits were sufficiently connected with the burglary to justify their admission in evidence. State v. Witt, Mo., 371 S.W.2d 215; State v. Martin, 349 Mo. 639, 162 S.W.2d 847; State v. Washington, Mo., 335 S.W.2d 23; State v. Swinburne, Mo., 324 S.W.2d 746.

Error is assigned in the refusal of the Court to instruct the jury concerning the offense of stealing less than $50 in value, and in instructing on stealing over $50 when there was allegedly no evidence to support such a finding. The Court instructed on burglary alone, burglary and stealing, and separately on stealing over $50 if the jury found defendant not guilty of burglary. Defendant’s real point seems to be that the State did not prove “how much money was taken from the place,” that an instruction should therefore have been given on the lesser offense, and that the stealing instruction as given was not supported by the evidence. It is true that no one knew how much money was in the machines just prior to the burglary, and that the average weekly “take,” as estimated by the owner, might have indicated the presence of a sum less than the $62.82 found in defendant’s car. However, there was ample evidence (including the physical facts and defendant’s own admissions) from which the jury could reasonably draw an inference that all the coins found in defendant’s car had been thus taken in the burglary of the tavern, and the instruction on stealing over $50, as given, was supported by the evidence. The failure to give an instruction on stealing less than $50 could not have been prejudicial, for the jury found the defendant guilty of burglary. See, specifically, State v. Crow, Mo., 388 S.W.2d 817, 821(7, 8).

The transcript does not contain the information as it was originally filed. At the conclusion of the evidence the Court permitted an amendment which, according to the motion for new trial, the colloquy had at the time, the objections, and the State’s brief, consisted of changing the street address charged as the place of the burglary from 7425 Wise (which was Louis Seiler’s residence address) to 1943 Woodson Road, the location of his tavern. The information charged, both before and after the amendment, that the place burglarized was “a certain store, shop or building * * * the property of Louis G. Seiler, an individual doing business as Lou’s Place * * The residence was in Richmond Heights, the tavern in Overland. At the trial all the appropriate witnesses were examined and cross-examined solely concerning the break-in at the tavern, the condition of the machines, the exhaust fan, the sliding kitchen window, and the missing articles and money. The stage was thus set by the examination and cross-examination of the very first witness, Louis Seiler, the owner of the tavern. Under the circumstances, there could not possibly have been any real misapprehension as to the place intended to be charged. The address originally given was not a “store, shop or building” nor was Seiler doing business there as “Lou’s Place.” It is perhaps true that these allegations created some inconsistency, and defendant might well have moved for a more definite statement. Also, when the first witness demonstrated that it was the tavern which had been robbed, defendant might have legitimately requested a continuance.

Such amendments are governed by our Rule 24.02 which permits an amendment at any time before verdict if no “additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” We are convinced that no substantial rights of defendant were prejudiced in that he and his counsel knew all along, and specifically from the very beginning of the trial, what the charge actually was. Nor do we find that the amendment created an additional or different offense. All the elements of burglary and of stealing were charged. Defendant’s objections and motion for a mistrial stated no factual grounds of prejudice, simply stating that this was a surprise and that defendant had therefore not had a fair trial. Our courts have been rather liberal in upholding the rulings of the trial courts in permitting amendments. State v. Bowers, Mo., 29 S.W.2d 58; State v. Smith, Mo., 261 S.W.2d 50; State v. Zammar, Mo.App., 286 S.W.2d 54; State v. Taylor, Mo., 375 S.W.2d 58. While none of these cases involved our facts, they tend strongly to indicate that the amendment here was permissible. A further point is made that the Court erred in failing to instruct the jury that the information had been amended. The making of the amendment involved a matter of law and the jury had nothing to do with it. That point is wholly without merit.

The information cited § 560.045 (coupled with the stealing section, § 560.-156) as having been violated; that section refers to burglary in the second degree of a dwelling; the citation of any statute was unnecessary and, under the circumstances, we shall consider the citation as surplusage. The correct section was 560.070, which defines the burglary of a building in which goods, wares and merchandise are kept. The reasons for nonprejudice, which we have already stated, apply equally to the erroneous citation. We see little, if any, excuse for the making of two such errors in an information. Nevertheless, in the absence of demonstrated prejudice to the defendant, we are unwilling to deny the enforcement of the rights of the public because of such neglect. The point is denied.

The last assignment attacks the admission of defendant’s written confession and the testimony relating to his oral statements on constitutional grounds, and also the failure of the Court to suppress all such statements. The first such objection came at the offer of the writing; upon the Court’s offer to let counsel develop “evidence of threats and duress” outside the presence of the jury, counsel declined to do so and elected to question the officer in the presence of the jury. That testimony developed absolutely nothing to indicate duress, threats, promises, coercion or any form of intimidation; and the defendant did not put on any evidence, within or without the presence of the jury. It was affirmatively shown that defendant was fed, that he was permitted to smoke, and that the officers told him that he might call an attorney or a bondsman, but that he declined the offer. Additional warnings were given to him in writing at the top of the page on which he wrote his confession. In the motion for new trial it is alleged that these admissions were received in evidence in violation of the Fifth and Fourteenth Amendments of the Federal Constitution and of § 19 of Article 1 of the Missouri Constitution, V.A.M.S. All of the statements of the defendant were made on May 1, 1964, and the trial began on September 30, 1965. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the Court held that the sundry admonitions announced in the case of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, did not apply to any prosecution in which the trial was started before June 13,1966. They are, therefore, inapplicable here. We revert to the law as declared in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and the interpretations thereof, in considering the validity of the present statements. In Escobedo, a defendant upon whom an investigation had “focused” had been refused an interview with his previously employed lawyer, although he had asked several times to see him. The confession thus taken was ruled invalid. Our Court has held that it will not expand the holding of Escobedo beyond its stated facts, and we again so rule. State v. Howard, Mo., 383 S.W.2d 701; State v. Collins, Mo., 394 S.W.2d 368; State v. Dixon, Mo., 411 S.W.2d 185, decided February 13, 1967. In this situation we consider the “totality of the circumstances” surrounding the making of the statements. State v. Beasley, Mo., 404 S.W.2d 689, and cases there cited and discussed, including Escobedo. See also State v. Craig, Mo., 406 S.W.2d 618. Here there was no evidence whatever of any improper action by those having the defendant in custody, there was affirmative testimony of an offer to permit the defendant to call counsel and of a refusal by him, and there were printed notices on the form which he used, stating that he did not have to make any statement at all and that any such statement might be used against him. We hold in these circumstances that all statements made and given were affirmatively shown to have been voluntary, and that neither the right to counsel nor any other constitutional right was in no way infringed. Beasley, supra. Moreover, the admission of the written statement, over objection, could not have been prejudicial to the defendant for the very simple reason that his full oral statements had been admitted without objection and that they included all the elements of his written statement and more.

This case was tried after the ruling in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, which has been much discussed and continues to be difficult of interpretation. Recently that case has been followed in Sims v. State of Georgia, 385 U.S. —, 87 S.Ct. 639, 17 L.Ed.2d 593, decided January 23, 1967. The result seems to be that in cases where the voluntary nature of a confession is controverted by evidence, the Court should make an affirmative finding that the confession was or was not voluntary, and should only submit it to the jury if it has thus been found, independently, to be voluntary. In both of those cases the question of voluntariness was a live issue upon the evidence. In our case there is no evidence whatever tending to show that the oral statements or the written statements were involuntarily made. Compare State v. Rapp, Mo., 412 S.W.2d 120, decided February 13, 1967. When objection was made to the written confession, the Court offered to permit counsel to cross-examine the officer who had taken it, outside the presence of the jury. Counsel declined and proceeded with his cross-examination in the presence of the jury, thus largely eliminating the course of procedure suggested in Denno. The Court here did hold the confession admissible at the conclusion of that cross-examination, and the jury was later instructed on the issue of voluntariness. The facts here distinguish this case from Denno and Sims. Furthermore, under no circumstances could the admission of the written confession have constituted prejudicial error, since the oral statements had already been fully heard by the jury. No constitutional rights of the defendant were infringed and all of the statements were properly admitted.

We find no reversible error in those parts of the record which we consider under Rule 28.02.

The judgment is affirmed.

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Edgar HOLLAND, Appellant.
    No. 52285.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.
    Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Moody Mansur, Asst. Atty. Gen., Jefferson City, for respondent.
   PRITCHARD, Commissioner.

For grounds under Criminal Rule 27.26, V.A.M.R., to secure the setting aside and vacation of his 1945 conviction of first degree murder, and the life sentence thereunder, appellant urges: I.A.; The Missouri State Highway Patrol, in searching his home, violated the statutes of the state, the search and seizure of the various items obtained thereby and the evidence leading therefrom was unconstitutional and unreasonable; I.B., his conviction was substantially based upon admissions made while he was being held incommunicado and during a period of unreasonable delay in taking him before a judge under circumstances that were inherently coercive; and II, his constitutional protection against self-incrimination and his right to due process of law was violated by the prosecuting attorney’s prejudicial argument to the jury in which he commented to the jury that appellant had not given “one word of testimony.”

Upon wholly circumstantial evidence, appellant’s conviction of murdering his wife was affirmed by this court. State v. Holland, 354 Mo. 527, 189 S.W.2d 989. A detailed account of the evidence may be there found. He was, at the preliminary hearings, the initial trial and on direct appeal, represented by able counsel. In this matter of post conviction remedy under said Criminal Rule 27.26, appellant was accorded a full hearing, and was personally present with counsel throughout the same. The motion was taken under advisement and later overruled, but the trial court did not make findings of fact and conclusions of law.

Briefly, the homicide was discovered when the bodies of two decapitated women were found floating near the Grand Glaize bridge in the Lake of the Ozarks on April 16 and 17, 1944. Both had been shot with a shotgun, and the right leg of the first woman found had been amputated. After difficulty and delay the victims were positively identified (the wife through her fingerprints) and appellant’s arrest and charge for the murder of his wife was made.

Appellant’s first contention that the search of his home and the seizure and use without his consent of certain evidence there found must be ruled against him. Although there was no search warrant issued, and the Missouri State Highway Patrol had not then the right or power of search or seizure in these circumstances (see § 8362, RSMo 1939, V.A.M.S.; State v. Jones, 358 Mo. 398, 214 S.W.2d 705, 707; State v. Smith, 357 Mo. 467, 209 S.W.2d 138), there was not one objection to the admission in evidence of the seized items in the 1945 trial. Counsel many times stated specifically no objection thereto. There was no motion to suppress any of the evidence now claimed to have been illegally seized; not one word was said about it in the motion for new trial. Obviously, from the reading of the original record, which we have before us, and the reported opinion, State v. Holland, supra, appellant’s strategy was to attack the sufficiency of this wholly circumstantial evidence case to sustain his conviction. Appellant testified that he knew, prior to trial, that a search had been made of his premises, and certain items were taken by the officers. In State v. Webb, Mo., 400 S.W.2d 84, defendant did file a motion to suppress seized evidence, but no objection was interposed to its admission and the matter was not presented upon appeal. It was there said, loc. cit. 400 S.W.2d 85 [3,4], “This court has held on several occasions that a claim of illegal search and seizure is not such a matter as may be raised in a collateral attack upon a judgment of conviction. State v. Engberg, Mo., 391 S.W.2d 868; State v. Kackley, supra [391 S.W.2d 350]; State v. Durham, Mo., 386 S.W.2d 360; State v. Howe, Mo., 364 S.W.2d 546, cert. den. 373 U.S. 943, 83 S.Ct. 1552, 10 L.Ed. 698. * * * The question of the alleged illegal search and seizure is not preserved and it will not be reviewed under defendant’s motion filed pursuant to Rule 27.26.” See comparable holdings under 28 U.S.C.A. § 2255, Cox v. United States (C.A. 8th Cir.), 351 F.2d 280; Kapsalis v. United States (C.A.7), 345 F.2d 392, cert den. 382 U.S. 946, 86 S.Ct. 406, 15 L.Ed.2d 354.

The record does not show that appellant was held by the Highway Patrol incommunicado for an unreasonable time and that there was an unreasonable delay in taking him before a judge. Appellant’s testimony in this hearing, which was for the trial court to believe or disbelieve, was that six officers came to his home after midnight, with machine or “Gatling” guns, loud-speakers and floodlights, grabbed him and took him to Jefferson City, Columbia and the Lake of the Ozarks region, continually questioning him. Captain Shaw testified in the original trial that the first trip made to appellant’s farm home was on the morning of May 16, 1944, where he asked appellant if he would go with him to try to identify the bodies as those of Mrs. Holland and Mrs. Fairfax. Appellant said he thought he could and would be glad to go and assist them. He then changed his clothes and went with them. It is true that appellant made damaging statements and admissions during the next four days, and changed his stories with respect to certain details. Apparently he was not advised of his right to consult relatives, friends or a lawyer, to remain silent and that anything he said could be used against him. However, the original record is devoid of any evidence of coercion, promises or threats to obtain a confession. On the contrary, appellant was voluntarily aiding the officers to identify the bodies — it was he who suggested that physicians be called who had examined his wife and mother-in-law to help in such identification (and to whom he offered money to get him out of the hole or scrape). In any event, there was no issue of coercion of a confession, illegality of arrest and detention presented in the trial. See State v. Bryant, Mo., 375 S.W.2d 122, 125, where it was said, “[T]here is an orderly procedure prior to and during trial by which to raise any problems arising out of an allegedly illegal arrest and detention.”

Aside from the merits of appellant’s charge that the statements made by him weré under circumstances “inherently coercive,” Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, settles his contention that he was denied assistance of counsel, advice as to his rights prior to interrogation, and other constitutional guarantees. It was there held that the principles of law announced in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were to be applied to cases tried after those cases were decided, June 22, 1964 and June 13, 1966, respectively. Appellant here was tried in 1945. Since Miranda and Esco-bedo have no retroactive application, appellant is entitled to no relief under his Point I.B., and it is overruled.

Appellant’s last point is unmeri-torious for two reasons: There was no objection or request for other relief to the argument of the assistant prosecuting official, “did he ever deny being there, no, not one word of testimony.” The matter was therefore not preserved for direct appeal. Although the case of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, holds that to permit a comment on a defendant’s failure to testify is an unconstitutional infringement upon his right against self-incrimination, Johnson v. State of New Jersey, supra, loc.cit. 86 S.Ct. 1780, holds also that such principle is not to be applied retroactively. Point II is overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Charles M. REED, Appellant.
    No. 52357.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.
    No attorney for appellant.
    Norman H. Anderson, Atty. Gen., Jerome Wallach, Asst. Atty. Gen., Jefferson City, for respondent.
   PRITCHARD, Commissioner.

In the presence of his counsel defendant entered a plea of guilty to the charge of robbery in the first degree, and was sentenced to imprisonment for a term of twelve years. He has appealed from the order of the trial court denying, without an evi-dentiary hearing, his motion filed pursuant to Criminal Rule 27.26, V.A.M.R.

In his motion defendant asserts that the information by which.he was charged was fatally defective in that it “fails to allege a single act committed by [him] which would constitute force or violence or show cause for fear of any immediate injury to any alleged robbery victim,” and also that “No fact whatsoever is alleged to support the allegation of fear of immediate injury to some person — an essential element constituting first degree robbery.”

The information charged that on August 27, 1963, the defendant did “feloni-ously and wilfully, rob, steal, take and carry away One Hundred ($100.00) Dollars, lawful money of the United States, the property of Kathryn Neubauer and Lelia G. Allen, by then and there putting the said Kathryn Neubauer in fear of an immediate injury to her person, * * *.” Section 560.120, RSMo 1959, V.A.M.S., defines robbery in the first degree, and provides that it may be committed by taking the property of. another from his person, or in his presence, and against his will, “by violence to his person, or by putting him in fear of some immediate injury to his person.” One crime, that of robbery-in the first degree, is defined but the statute provides that the crime may be committed by either of two ways, or by both. State v. Burns, Mo., 280 S.W.2d 119. In this case the information did not purport to charge the offense of robbery in the first degree by violence to the person of the victim; it charged only that the robbery was committed by putting the victim in fear of an immediate injury to her person. It is true, as defendant contends, that the information does not allege the acts of defendant which resulted in the victim being placed in fear, but it was not necessary that it do so. In numerous cases not pertaining to this specific contention, it has repeatedly been held that it is sufficient to charge the offense of robbery in the first degree in the language of the statute. State v. Luther, Mo., 338 S.W.2d 846; State v. Romprey, Mo., 339 S.W.2d 746; State v. Moore, Mo., 347 S.W.2d 195. Here the wording of the information followed the language of Section 560.120. In State v. Moore, 203 Mo. 624, 102 S.W. 537, 538, we find this: “Finally, it is insisted that the information is bad, in that it fails to inform the defendant of the nature of the instrument or the means by which he put the prosecuting witness in fear of immediate injury to his person. As to this neither the common law nor our statute requires the grand jury or the prosecuting attorney to set out the means by which the victim of a robbery is put into fear.” We find this contention of defendant to be without merit.

Defendant asserts that there was “no finding of first degree robbery,” and therefore the sentence of twelve years is in excess of that authorized by Section 560.135, RSMo 1959, V.A.M.S., for the offense of either second or third degree robbery.

The sentence and judgment as it appears of record consists of four paragraphs. The first recites the presence of the prosecuting-attorney and of defendant and his counsel. The second recites that defendant voluntarily withdrew his plea of not guilty and entered “a plea of guilty to the charge of Robbery contained in the information filed herein, the nature of said charge and the range of punishment therefor having been fully explained” to him. There then follows a statement of allocution. In the third paragraph it is stated that the trial court fixed the punishment at imprisonment for a term of twelve years. In the last paragraph, which starts with the usual word “Wherefore,” it is “ordered, adjudged and decreed that the said defendant shall be confined in the custody of the Department of Corrections of the State of Missouri * * * for a period of twelve (12) years * * *

While the judgment did not use the words “robbery in the first degree,” it did recite that defendant entered a plea of guilty “to the charge of Robbery contained in the information,” and the charge therein contained was robbery in the- first degree. It may be, but this is not clear, that defendant contends that only that part following the word “Wherefore” constitutes the judgment, but if so, there is no merit to the contention. The judgment includes the four paragraphs above referred to., The record affirmatively shows that defendant was charged with first degree robbery, that he voluntarily entered a plea of guilty to first degree robbery, and that the sentence imposed was within the limits authorized.

The trial court correctly denied defendant’s motion without an evidentiary hearing.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.