text:
    STATE of Missouri, Respondent, v. Hugh E. MANESS, Appellant.
    No. 51503.
    Supreme Court of Missouri, Division No. 2.
    Oct. 10, 1966.
    Motion for Rehearing or Transfer to Court En Banc Denied Nov. 14, 1966.
    Norman H. Anderson, Atty. Gen., Moody Mansur, Asst. Atty. Gen., Jefferson City, for respondent.
    Hugh E. Maness, pro se.
   BARRETT, Commissioner.

Upon a jury trial in Jefferson County, on March 29, 1939, with court-appointed counsel, Hugh E. Maness was found guilty of forcible rape and sentenced to fifty years’ imprisonment. And now after the lapse of more than 25 years, August '1964, Maness instituted this proceeding under Criminal Rule 27.26, V.A.M.R., to vacate the original judgment and sentence. The Circuit Court of Jefferson County appointed counsel to represent Maness in this proceeding, a hearing was had upon his petition to vacate the 1939 judgment and at the conclusion of the hearing the court denied the motion, stating among other reasons that “neither in his motion to vacate or in evidence at the hearing on the motion was there suggestion of error which might have warranted a new trial.”

While his pro se 27.26 motion was a combined petition, brief and argument, the gist of his complaint was that his 1939 trial counsel “failed to, and did not take any steps to secure an appeal of this Court’s Judgment and Sentence and did further fail to respond to any communications sent to him by the defendant, or to in any way advise the defendant upon the nature and extent of his right to such an appeal or as to the possible means for securing such an appeal.” In this connection it was alleged that his trial lawyer was inexperienced and “abandoned the defense in this cause,” meaning presumably that he did not take the necessary preliminary steps and perfect an appeal to this court. Incidentally the only extant records relating to the original trial are the information, the court’s minutes and the clerk’s records, “no transcript of the trial is presently available due to the death of the court reporter.” In any event in support of his present motion Maness said that he did not know how to go about “getting” an appeal, that he told the jailer as well as his sisters to tell his lawyer that “I want to see him to appeal it for me,” but he did not hear from his lawyer. When asked whether and how he had been prejudiced through the lack of an appeal he said, “I don’t think I had no one to help me, so there it was prejudice somewhere. I would have got a appeal. * * * I figured all the way I didn’t have a fair trial from the start of it. * * * There was prejudice and I had been in a few prejudices. Everyone knows I was born and raised here. Now that would go against me. Half of the people on the jury knew me.” Although he could not recall “one isolated incidence” indicating the fact, he was of the opinion that the then circuit judge was prejudiced against him. In conclusion he said, “My real basis is not having an appeal to the Supreme Court to see if I was due for a new trial. That’s what I appealed on. * * * I felt that maybe my attorney could find some flaw or error, something there, in order to give me a chance for a new trial.”

His two sisters testified that on two separate occasions, the two days following the trial, at their brother’s request, they went to the lawyer’s residence and “asked him about filing a new motion” and he said “he would see into this.” His lawyer, admitted to the bar in 1934, practised with his father, an experienced lawyer, had tried one criminal case prior to defending Maness in 1939. He considered that case, assault with intent to kill, more difficult than the rape case in several respects. He detailed his investigation of the facts, his search for witnesses but “Most of the witnesses that I talked to were that I would call Plaintiff’s Witnesses.” He did not recall any visits by Maness’ sisters, he did not “recall receiving any” request from Maness that the case be appealed. He said that he did not withdraw as counsel, that he did not file a motion for a new trial or a notice of appeal. He knew of no prejudice on the part of any juror and of the judge he said, “I know of no reason to know or think he was prejudiced.” And finally as to any trial errors or erroneous rulings by the trial judge the lawyer said, “I don’t specifically recall any.”

In these circumstances, citing and relying on a number of recent decisions by the Supreme Court of the United States of which Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, 816, are illustrative and representative, Maness now contends that the Circuit Court of Jefferson County erroneously denied his motion to vacate the 1939 sentence and judgment “all of which is in violation of the Fourteenth Amendment to the Constitution of the United States.” Maness has filed an elaborate brief in which he seeks to demonstrate that the 1939 judgment is void and violative of his constitutional rights but it is not necessary here to set forth in detail his contentions. The difficulty with his reliance on these landmark cases is that he and perhaps others mistakenly construe them as condoning or exonerating the original crime, at least he treats of them and relies on them abstractly and apart from the original offense and trial. In Griffin v. People of State of Illinois “invidious discrimina-tions” in the denial of transcripts were struck down, but “manifest nonconstitutional errors in the trial” were alleged, and the Supreme Court said, “We must therefore assume for purposes of this decision that errors were committed in the trial which would merit reversal, but that the petitioners could not get appellate review of those errors solely because they were too poor to buy a stenographic transcript.”

But in this jurisdiction the “invidious discriminations” denounced in the Griffin and Douglas cases do not exist and this appeal in this 27.26 proceeding does not involve the problems of those cases. In this case, both on his original trial and in this proceeding, Maness has been furnished court-appointed counsel, there was a trial in the forcible rape case and a hearing upon this motion and a free transcript upon this appeal. RSMo 1959 § 485.100. As indicated, upon this motion to vacate the circuit court has found that in the original trial there was jurisdiction, that the sentence was not illegal, that the sentence and judgment were not “otherwise subject to collateral attack,” and that there was no “denial or infringement of constitutional rights.” Cr. Rule 27.-26. The circumstances of this hearing have been detailed and in view of the court’s finding Maness’ only complaint upon this appeal is of the bare fact that there was no appeal from his original conviction. While he asserted prejudice on the part of the court and jury in his rape case, there is not a single circumstance in this record to support his asseveration. Other than his unsupported allegations as to judge and jury, there is not even a claim, let alone evi-dentiary support, of a manifest prejudicial error in the trial of the forcible rape case and thus this appeal is reduced to the mere abstract claim that there was no appeal from the original sentence and judgment.

Whatever the true rationale of the cases, “(i) t should first be determined whether the remedy [28 U.S.C.A. § 2255] sought has any practical use at all by the application of the ‘plain error’ test, as the rights of the appellant here are not to be determined in the abstract.” Fennell v. United States, 10 Cir., 339 F.2d 920, 923 (Cert. denied 382 U.S. 852, 86 S.Ct. 100, 15 L.Ed.2d 90). Or, as stated in Ramsey v. United States, D.C., 223 F. Supp. 605, 606, and other cases: “Even if it were shown that the failure of the petitioner to appeal was due to a mere neglect of his counsel, which has not been done, there must he a further showing, also not present here, that there was plain reversible error in the trial.” Wilson v. United States, 9 Cir., 338 F.2d 54; Dodd v. United States, 9 Cir., 321 F.2d 240; Mitchell v. United States, 103 U.S.App.D. C. 97, 254 F.2d 954 (Cert. denied 371 U.S. 838, 83 S.Ct. 64, 9 L.Ed.2d 73). It may well be, as the appellant contends, that State v. Mischanko, Mo., 272 S.W.2d 210, has been modified in some respects by certain of the federal cases but the concluding sentences have not been overruled and are indeed applicable: “The court is no more required to do a vain and useless thing on motion to vacate than in any other kind of legal proceeding; and before defendant may put the court in the wrong for having refused to set aside his sentence after a completed trial at which he had had the active aid of counsel, he should at the very least make some substantial showing that by reason of something that was done over the objection of his counsel, an ingredient of such manifest unfairness and injustice crept into the case as to have resulted in his being denied due process of law unless he was permitted to bring the matter to the court’s attention as a basis for the allowance of a new trial.”

For these indicated reasons the judgment denying the appellant’s motion to vacate the 1939 sentence and judgment is affirmed.

STOCKARD, and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: HYDE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Freddie Eugene BALL, Appellant.
    No. 51919.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Richard G. Altobelli, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Donald V. Nangle, Jefferson City, for appellant.
   HYDE, Judge.

Defendant charged under the Plabitual Criminal Statute (Sec. 556.280) with burglary in the second degree (Sec. 560.070) and grand stealing in connection with the burglary (Sec. 560.110) was found guilty on both charges. (Statutory references are to RSMo and V.A.M.S.) Defendant was sentenced to ten years’ imprisonment for burglary and five years for grand stealing, to run consecutively, and has appealed from this judgment.

Defendant is represented on this appeal' by counsel appointed after sentence and judgment in the Circuit Court as authorized by Criminal Rule 29.01(c), V.A.M.R. His claims of error asserted here are (1) Failure to appoint new counsel after verdict and prior to filing of motion for new trial and sentencing; (2) Admitting testimony of Mrs. Diedre Anne Davis, at one time a co-defendant, claiming she was incompetent to testify alleging she was coerced to testify.

As to the first, after the trial defendant’s appointed counsel, Mr. C. J. Quimby, wrote him, as follows: “I did not prepare and file a Motion for New Trial because I can find no error in the proceedings. I could file what is called a shotgun motion, but it would be of no use because of Supreme Court rule of criminal procedure # 27.20 which requires such motion should be set forth with great detail and particularity in separate numbered paragraphs as specific grounds or causes, therefore their cases hold that simple statements in such a motion to the effect that verdict was against the evidence, against the weight of the evidence, against the law under the evidence are too general to preserve for anything for review by the Supreme Court, and I cannot give reason and facts to support such claims of error. For these reasons I do not consider it my duty, under my appointment as counsel to defend you in this case, to prepare and file a Motion for New Trial, but, in order to preserve any rights you may have and so that I may not be charged with neglect of my duty as appointed counsel, I have filed a Motion for Extension of Time, copy of which is herewith enclosed and I have filed it with a copy of this letter as an exhibit in support of the motion, all within the original time limit, ten days from verdict.”

A motion for new trial, which we consider was timely filed, preserved for appellate review the two above-stated claims of error and no other claims are suggested. The record shows the following: “Thereafter, on December 18, 1965, hearing on defendant’s Motion for New Trial was had before the Honorable Sam C. Blair, Special Judge of the Circuit Court of Cole County, Missouri, with Mr. Byron L. Kinder, Prosecuting Attorney for Cole County, Jefferson City, Missouri, appearing for the State (plaintiff), and the defendant appears in person and by his attorney, C. J. Quimby, Attorney at Law, Jefferson City, Missouri, in open court, and said Motion for New Trial is presented to the Court; and the Court, having heard presentation of counsel, and having considered the same, overrules said motion.” Mr. Quimby was the court-appointed counsel who represented defendant at the trial. Although defendant did file a motion for appointment of other counsel after defendant received Mr. Quimby’s letter, no action was taken on this motion. As noted a motion for new trial was filed, not prepared by Mr. Quimby, but as shown by the above entry he did continue to represent defendant.

Whether defendant was prejudiced by the court’s failure to appoint other counsel, in our opinion, would depend upon whether there was any merit in the other claim of error made. We think this is true because if the court properly admitted the testimony of Mrs. Davis, defendant could not have been prejudiced by failure to appoint other counsel to present that contention after the trial. On any claim of neglect of counsel, there must be a showing that there was plain reversible error in the trial. State v. Maness, Mo., 408 S.W.2d 15, decided October 10, 1966, and cases therein cited. Our Canons of Ethics provide: Rule 4.05: “It is the right of the lawyer to undertake the defense of a person accused of crime, regardless of his personal opinion as to the guilt of the accused; otherwise innocent persons, victims only of suspicious circumstances, might be denied proper defense. Having undertaken such defense, the lawyer is bound by all fair and honorable means, to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law.” Rule 4.04 requires that counsel “should always exert his best efforts in his (defendant’s) behalf.” Nevertheless, as stated in Rule 4.15: “In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client.” Rule 4.22 further admonishes that the conduct of the lawyer before the court should be characterized by candor and fairness. Thus, while a prisoner, indigent or otherwise, is entitled to his lawyer’s best efforts, the lawyer is not required to surrender his integrity and self-respect and make claims known to be untenable or wholly false. We consider this to apply in criminal cases as well as all others and that a lawyer cannot be criticised for giving a client his honest views. Furthermore, we consider the trial counsel’s view as to the question raised on this appeal to be correct.

The cases cited in defendant’s brief all recognize the general rule stated in State v. White, Mo.Sup., 126 S.W.2d 234, 235: “[T]hat an accomplice is a competent witness, notwithstanding the fact he may have made by arrangement by which, if he turns state’s evidence, he will not be prosecuted, if he has not agreed to' testify in a particular way; but that such fact goes only to his credibility.” We have had a statute, Sec. 546.280, now Criminal Rule 26.07, which provides: “When two or more persons shall be jointly indicted or prosecuted, the court may, at any time before the defendants have gone into their defense, direct any defendant to be discharged, that he may be a witness for the state.” This also is a recognition of the competency of the testimony of an accomplice. Any immunity or promises offered to an accomplice to testify to the truth “might affect his credibility but not his competency as a witness.” State v. Quinn, Mo.Sup., 142 S.W.2d 79, 81. Defendant’s brief recognizes “an accomplice to a crime is ordinarily competent to testify.” However, it is further stated in his brief: “If the witness went farther, and sought to convict a defendant, to testify untruthfully, or gave testimony of an uncreditable or contradictory nature which would support this showing, then a reviewing court should be inclined to consider the competency of the witness.” Defendant claims Mrs. Davis had agreed to testify in a particular way for the State, without regard for the truth, arguing that because she was seventeen years old, pregnant and had first invoked her privilege not to testify under the Fifth Amendment but then testified against defendant to escape punishment. Of course, as we held in State v. Eaton, Mo.Sup., 280 S.W.2d 63, 65, 66, perjury connived at by a prosecuting attorney would constitute denial of due process.

We do not find any such situation of agreed untruthful testimony shown by this record because the testimony of Mrs. Davis was so strongly corroborated by other evidence. Her testimony was that she drove with defendant and one Preuitt in defendant’s car from Columbia to Emma, in Saline County, on the afternoon of June 1, 1964. She testified they stopped at the Emma Creamery building that evening, where at defendant’s direction, Preuitt got out and looked into the building; that they then went to Odessa and returned to Emma about midnight; that defendant and Preuitt went into the building while she stood by the door. Mrs. Davis further testified she heard hammering inside (a safe was pried open); that when the two men came out one of them was carrying a money box which he took to the car; and that they drove north out of town, on a rural road, then stopped and opened the box with a screw driver. The money (more than $500.00) was in a pouch in the box and there were also some checks in it. After taking the money and leaving the checks, the box was thrown out in the weeds. A witness Fischer, a resident of Emma, saw defendant standing by the Emma Creamery building that evening and also saw defendant’s car with Mrs. Davis in it and the other man with them. He identified all of them in the courtroom. The money box and pouch with checks to the Creamery in it were found by the sheriff of Saline County at the place pointed out to him by Mrs. Davis. The lid and the money tray of the box were damaged and broken. Thus, defendant’s car and all three persons, charged with the burglary, were identified as being in Emma, with the men looking over the Creamery building, earlier in the evening, as Mrs. Davis testified. Likewise, the money box, pouch and checks were found where Mrs. Davis said they were thrown after the burglary. Such corroboration strongly indicates the truth of her testimony. Defendant offered no evidence.

Furthermore, defendant’s counsel made an extended, searching cross-examination of the identifying witness Fischer, with the aid of a transcript of his testimony given at defendant’s preliminary hearing, in an effort to show material inconsistencies and contradictions in the testimony of this witness; and in his cross-examination of Mrs. Davis brought out a previous felony conviction and other matters to affect her credibility. We hold that Mrs. Davis was a competent witness and that her credibility was for the jury to determine. From our reading of the record, our view is that defendant had a conscientious and diligent defense and that no prejudicial error in the trial appears. Our conclusion is that defendant had a fair trial, with proper assistance of counsel. We, therefore, find that defendant was not prejudiced by any lack of dilligence of counsel and that his constitutional rights were not violated.

A previous felony conviction, sentence and imprisonment therefor was admitted and affirmatively found by the court. We have examined the record as required by our Rules 28.02 and 28.08, V.A.M.R., and find it sufficient with respect to those matters therein specified.

The judgment is affirmed.

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Roger(s) Lee GILLIAM, Defendant.
    No. 51845.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.
    Norman H. Anderson, Atty. Gen., Jerome Wallach, Asst. Atty. Gen., Jefferson City, for respondent.
    No appearance for appellant.
   BARRETT, Commissioner.

In the circumstances set forth in State v. Gilliam, Mo., 351 S.W.2d 723, Roger(s) Lee Gilliam was charged, tried and convicted of robbery in the first degree by means of a dangerous and deadly weapon. RSMo 1959, §§ 560.120, 560.135. In September 1965 he personally instituted this proceeding under Criminal Rule 27.26, V.A.M.R. to vacate the sentence and judgment in his original conviction. The court denied the motion without a hearing and Gilliam has again appealed. He filed in this court a motion for the appointment of counsel, that motion was denied. He then filed a motion for leave to argue his case in person, that motion was sustained and with poise and intelligence he very capably argued his appeal. The argument was recorded and has again been listened to and is available for transcription.

While his motion to vacate is twenty-three pages in length and is a combined brief and argument with the citation of numerous federal cases, some of which were called to the court’s attention in oral argument, his basic complaints may readily be reduced to their essentials. In the trial of his robbery case he was represented by court-appointed counsel and it may be that as a necessary prerequisite to his principal and rather ingenious point he would have to allege facts that would prima facie establish the incompetency or ineffectiveness of his trial lawyer. This he claimed in oral argument and only in conclusion in his petition. In support of his claim of ineffective counsel he said that the lawyer “had never before tried a. criminal case. Defendant was his first client.” His principal complaint in arguing before this court was that his lawyer in the trial of the robbery case did not bring to the court’s attention the facts he now personally urges in this 27.26 proceeding. (Those facts will be briefly narrated following this paragraph.) Quite astonishingly if not shockingly, after alleging the inadequacy of his trial counsel, he states that his counsel “was a former Assistant United States Attorney, and resigned from the United States Attorney Staff in 1959.” Furthermore, the transcript in the robbery case is here and has again been examined and without demonstration page by page it is sufficient to say that the record completely refutes the claim of inadequate representation. The lawyer’s twenty-point motion for a new trial was exceptional in its “particularity” (Cr. Rule 27.20) and alone a refutation of the imputation of inefficiency. It may be, at least insofar as his other claims of infringement of rights are dependent upon his first establishing inadequacy of representation, that this alone is enough to establish that in no event does Gilliam’s motion state a claim or raise an issue entitling him to any relief in a 27.26 proceeding and therefore could be disposed of summarily.

As indicated, twenty-two pages of his 27.-26 application and his argument here are devoted to the matter which he now claims his lawyer neglectfully failed to raise. Bearing in mind that this proceeding is to vacate the 15-year sentence affirmed in State v. Gilliam, 351 S.W.2d 723, this in substance is his claim as set forth and briefed in his application and as argued here: On March 1, 1960, “a complaint of robbery was forwarded to the St. Louis Metropolitan Police Department bearing No. 44753” and known thereafter as the William McDowell robbery at a confectionery at 3028 Newstead Avenue. With this “complaint of robbery” a detective on March 6 casually inquired of Gilliam as he visited a photographic studio “if he had been tothe Tenth District Station that day.” Upon receiving a negative reply the detective informed him that Captain Bolden wished to see him and so he “accompanied” the detective to the station and immediately was taken to the “Interrogation Room” where he was searched and his personal belongings “taken from his person.” These included “a diamond stick-pin wrapped in a tissue” and had been taken from the person of McDowell in the robbery on March 1, 1960. Gilliam claims that he purchased the pin from “an unknown man” for $45.00. In any event on March 7, 1960, Gilliam was “held for investigation, suspected of buying and receiving stolen property. (Arrest Register No. 10-1328).” When McDowell was “contacted and advised of this circumstance” (all references to facts are of course from Gilliam’s allegations) he desired to “prosecute in this regard” and on March 8, 1960, Gilliam was “again arrested” on “suspicion of robbery” but on March 9 was released “as no information had been ascertained.” But at 7:30 p. m., March 31, 1960, after a telephone call from police headquarters, “defendant went to said Station,” McDowell identified him (Gilliam) as his robber and he was arrested for that offense.

From April 1 to April 11 Gilliam was held at police headquarters and on the 11th was “released to the custody of the sheriff” to appear before the Court of Criminal Corrections for arraignment. It was during this period of detention that Gilliam was first “questioned about a Rexall Drug Store Hold-up,” the robbery case reviewed and reported in 351 S.W.2d 723. It was not until April 24, however, that one or more of the witnesses, Gladys Maxwell, a customer, and Mrs. Rushing, a clerk, identified Gilliam as one of the Rexall Store robbers, the one “poking Mr. Block in the back with a gun.” 351 S.W.2d 1. c. 725. In any event the appellant was tried for the Rexall Store robbery and sentenced to 15 years’ imprisonment, thereafter he entered a plea of guilty, he says coerced although he was represented by the former district attorney in that case, to the McDowell robbery and was sentenced to five years’ imprisonment.

There are other details, some a repetition in different language, but these are sufficient to put the appellant’s other claims to 27.26 relief in the Rexall Store robbery case in focus. As stated, buttressed with an elaborate citation of authority, it is his complaint that while being held, investigated and charged in the McDowell case, for thirteen days “incommunicado,” he was investigated, identified, and charged with the Rexall Store robbery. The gist of his claim is that being in custody in the McDowell case, he was held more than twenty hours all in violation of RSMo 1959, § 544.170. It is urged that these circumstances constituted an invasion of his constitutional rights and deprived the court of jurisdiction in the Rexall robbery and therefore he urges that his sentence of fifteen years should be set aside.

There is some ingenuity in this rather complicated claim but in the end it does not state any ground, fact or reason necessitating a hearing or hypothesizing any possible facts that would constitute an invasion of his constitutional rights or entitle him to successfully and collaterally attack the fifteen year sentence. If his being held more than twenty hours had anything to do with his Rexall store case the fact could have been raised in that trial and appeal (State v. Bryant, Mo., 375 S.W.2d 122), it is sufficient here, however, to say that the mere fact of being held longer than twenty hours does not in the absence of connecting it with some prejudicial matter invalidate the original judgment. State v. Keeble, Mo., 399 S.W.2d 118. In short, the record in this 27.26 proceeding, the transcript and files upon his former appeal, all refute any possible issue attempted to be raised upon this appeal, his motion to vacate does not state a case or valid claim within the meaning of Cr.Rule 27.26 and therefore the court did not err in refusing to conduct a hearing upon this motion. State v. Williams, Mo., 391 S.W.2d 227; State v. Ashe, Mo., 403 S.W.2d 589. For these reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Charles Raymond JOHNSON, Appellant.
    No. 51927.
    Supreme Court of Missouri, Division No. 1.
    Oct. 10, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Nov. 14, 1966.
    Norman H. Anderson, Atty. Gen., Jefferson City, William J. Raack, Asst. Atty. Gen., St. Louis, for respondent.
    Robert J. Robinson, St. Louis, for appellant.
   HYDE, Judge.

Defendant was convicted of forcible rape (Sec. 559.260) and sentenced under the habitual criminal statute (Sec. 556.280) to ten years’ imprisonment. (Statutory references are to RSMo 1959 and V.A.M.S.) Defendant has appealed and his counsel makes two claims of error: (1) overruling his motion for a directed verdict and (2) permitting testimony of the police officer, who arrested defendant, that after arrest for and confrontation with the charge of rape defendant refused to make any statement.

Defendant filed no motion for new trial but after sentence, we allowed him to appeal. out of time on application under Rule 28.07 on his claim of “abandonment by counsel and his ignorance concerning his right to initiate an appeal without benefit of counsel.” However, in the transcript filed, we find the following document dated and filed June 29, 1965 (verdict was returned June 23, 1965) : “Comes now the defendant, Charles R. Johnson, waives his right to file a motion for a new trial, his right to appeal, and requests the Court to sentence him in accordance with the jury verdict rendered in this cause 6-25-65. /s/ Charles R. Johnson. Robert J. O’Han-lon, Atty. for Deft.”

On that day following the filing of this document, there were further proceedings, as follows: “APPEARANCES: ' Leo H. MacDonald, Assistant Circuit Attorney, for the plaintiff; Robert O’Hanlon, Esq., for the defendant; Defendant, Charles R. Johnson was present in person.

“MR. O’HANLON: We have a memorandum here.

“THE COURT: You are Charles Raymond Johnson, is that correct?

“A Yes, sir.

“THE COURT: And on another day you were found guilty by the jury, is that correct? A Yes, sir.

“THE COURT: And do you have any legal reason or cause why sentence should not be imposed upon you at this time?

“A No, sir.

“THE COURT: And in accordance with the verdict and finding of the jury, and the finding by the Court that you had one prior conviction of a felony, the Court commits you to the Department of Corrections for a period of ten years. Let the record show he waives the right to appeal and that is why the sentence was reduced from twenty-five to ten years on the recommendation of the Assistant Circuit Attorney. Is that correct, Mr. MacDonald?

“MR. MacDONALD: It is, Your Honor.” (The transcript shows that at the time the verdict was returned the court had stated the punishment would be twenty-five years’ imprisonment.)

Defendant is represented on this appeal by different counsel but no contention is made that defendant did not knowingly and understandingly waive his right to file a motion for new trial and his right to appeal; and no request is made for us to consider the two stated claims of error under our Rule 27.20(c), nor is any attempt made to show “that manifest injustice or miscarriage of justice has resulted therefrom.” See State v. Hecke, Mo.Sup., 328 S.W.2d 41. These are claims that we have always required to be raised in a motion for new trial to be preserved for appellate review (Rule 27.20 (a)) and are not matters required by Rule 28.02 to be considered on the record without being presented by a motion for new trial. See State v. Wiggins, Mo.Sup., 360 S.W.2d 716, 718; State v. Thompson, Mo. Sup., 324 S.W.2d 133, 136. From our reading of the record in this case, our view is that we would have to hold the evidence sufficient to make a case for the jury and that the motion for a directed verdict was properly overruled. The cases cited by defendant, and other similar ones, were discussed by us in State v. Warren, Mo.Sup., 366 S.W.2d 311, 313. They are very different from the facts shown in this case. As to the police officer’s testimony concerning the refusal of defendant to make a statement when first accused, the State contends that considering the whole testimony of this officer no prejudice resulted because a self-serving exculpatory statement of defendant was received in evidence as part of this officer’s testimony. We do not rule these contentions because they are not properly before us for the reasons here-inabove stated. We thus note them only to show that we should not consider' them on our own motion without any request or showing of any reasons for us to do so under our Rule 27.20(c).

It further appears that defendant was represented at the trial and prior thereto by an attorney of his own choice (not one appointed by the court), who had prepared for trial by taking the deposition of the prosecuting witness. In a somewhat similar situation, we said in State v. Johnson, Mo.Sup., 336 S.W.2d 668, 669, quoting from Hudspeth, Warden v. McDonald, (USCA 10) 120 F.2d 962, 968: “[Wjhere, as in the case now before us, a defendant in a criminal case has retained counsel of his own choice to represent him it is settled by an overwhelming weight of authority that the commission by his counsel of what may retrospectively appear to be errors of judgment in the conduct of the defense does not constitute a denial of due process chargeable to the state. * * * It necessarily follows that any lack of skill or incompetency of counsel must in these circumstances be imputed to the defendant who employed him rather than to the state, the acts of counsel thus becoming those of his client and as such so recognized and accepted by the court unless the defendant repudiates them by making known to the court at the time his objection to or lack of concurrence in them.” Here defendant signified his acceptance of the agreement made by counsel of his own choice, and approved by the court, by signing the memorandum filed which was also signed by his attorney. From our review of the transcript, it appears that counsel for defendant conducted an alert, intelligent and vigorous defense in his behalf.

Previous felony conviction, sentence, imprisonment therefor and discharge after serving sentence were affirmatively found by the court on evidence offered by the State. We have examined the record as required by our Rules 28.02 and 28.08, V.A. M.R., and find it sufficient with respect to those matters specified therein.

The judgment is affirmed.

All concur.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Joseph Franz ARBEITER, Appellant.
    No. 51334.
    Supreme Court of Missouri, Division No. 1.
    Oct. 10, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Nov. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Ben Ely, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
    James P. Finnegan, Jr., John H. Haley, Jr., John E. Bardgett, James T. Williamson, St. Louis, for appellant.
   WELBORN, Commissioner.

Joseph Franz Arbeiter appeals from a sentence of life imprisonment upon conviction by a jury of murder in the first degree.

On the afternoon of December 2, 1963, Mrs. Nancy Zanone was stabbed by an intruder in her apartment at 4964 Chippewa Avenue in St. Louis. She died the following day without being able to describe her assailant.

Joseph Arbeiter, then fifteen years of age, resided with his mother at 4327a Morganford Road, in the neighborhood of the Zanone residence. Joseph had had several encounters with the St. Louis Police Department and officers acquainted with him considered him a daytime residence burglar.

Captain John Walsh of the St. Louis Metropolitan Police Department, Homicide Division, was in charge of the investigation of the death of Mrs. Zanone. On the morning of her death, the night sergeant called Captain Walsh’s attention to an attempted purse snatching and stabbing of Grace Munyon on November 28, 1963, in the area of Kingshighway and Chippewa, and near the Zanone residence. The sergeant suggested a similarity between the two attacks and at around 10:00 A.M. Captain Walsh called Sergeant Feldmeier of the First Police Department District and inquired whether or not “he had anyone in mind” in the Munyon case. Sergeant Feldmeier stated that he was looking for Arbeiter and when the captain stated that his theory was that Mrs. Zanone had encountered a prowler in her home, Sergeant Feldmeier stated that Arbeiter “had a past history of this type of behavior.” The officers agreed that efforts to locate Ar-beiter should continue.

According to Sergeant Feldmeier, he, prior to the telephone conversation with Captain Walsh, had directed Detective Corporal Stocker to “investigate” Arbeiter in connection with a series of residence burglaries in the vicinity of Kingshighway and Chippewa. At the time he gave that direction, he had neither the Zanone nor the Munyon case in mind. Corporal Stocker checked with the authorities at the school Arbeiter was supposed to attend and found that he had not attended regularly for some two weeks. Corporal Stocker reported this to Sergeant Feldmeier who told the corporal to keep looking for Joe. Corporal Stocker got in touch with Joe’s mother at her place of employment. She was surprised that Joe was not in school and Corporal Stocker asked her to have Joe remain at home that evening and he’d come by and talk to him.

Corporal Stocker continued to search the neighborhood for Joe and at around noon saw him walking along the street, stopped his police car and Joe got in without any question. Corporal Stocker took Joe to the First District Police Station. There Joe was taken to the detectives’ room where he was interrogated by Sergeant Feldmeier, Corporal Stocker and Officer Kraeger.

Despite Captain Walsh’s testimony that his prior conversation with Sergeant Feld-meier cast Joe in the role of a suspect in the Zanone and Munyon cases, both Feld-meier and Stocker testified that they were looking for Joe primarily in connection with house burglaries and that they first questioned about several such incidents, all of which Joe denied. They then questioned Joe about his activity on preceding evenings and found that he had been at the Avalon Theatre on the night of the Munyon incident. Sergeant Feldmeier asked Joe whether or not he committed that offense and he readily admitted it.

The officers then began to question Joe about his being in the vicinity of the Zano-ne residence at the time of her stabbing. Although they had no such witness, they told Joe that a witness had placed him in the neighborhood of the Zanone residence. According to the officers, Joe was reluctant to discuss this matter, but he finally inquired whether or not he could go home if he told the truth. Corporal Stocker told him: “We don’t promise you nothing, whether you can go home or not. After we — we notify the Juvenile Authorities, it’s up to them what they — whether you go home or not.”

After some further reluctance, Joe said: “Well, I may as well tell you the truth. I was in that house. The woman caught me in her house, and I was scared, so I stabbed her and ran out.”

Captain Walsh was called and told of Joe’s statement. He directed the First District officers to take Joe to his residence and to get in touch with Joe’s mother and have her come to the house. Officers Feldmeier and Stocker took Joe to his home and Officers Haley and Kraeger went to Mrs. Arbeiter’s place of employment and got her.

Sometime after 1:30, Joe, in the custody of Feldmeier and Stocker, arrived at the Arbeiter residence and Captain Walsh and two other detectives also arrived. Mrs. Arbeiter was brought to the residence and she and Joe, accompanied by some six or seven police officers, entered the flat.

They went into the living room and Mrs. Arbeiter asked what Joe had done. A police officer told Joe to tell her and Joe said: “I stabbed that woman on Chippewa.” Mrs. Arbeiter said: “You don’t mean that woman that was killed in her home up there.” This remark was the first knowledge that Joe had that Mrs. Zanone had died.

The police officers asked Joe about the clothing he was wearing at the time of the stabbing. He showed them the jacket which he was wearing and the police officers took it. Joe was asked about the knife which he had used. He said it was in the garage. A knife was found there, but the police were skeptical about its being the weapon used. Upon further interrogation, Joe stated that he had buried the weapon he had used in a schoolyard. He accompanied the officers to the schoolyard and the knife was discovered.

At approximately four o’clock, Joe was taken to the Homicide Unit Office in police headquarters and Sergeant Kilroy, a police department juvenile officer, was called in, together with an assistant circuit attorney. The assistant circuit attorney questioned Joe briefly and then took a statement in question and answer form which was recorded by a stenographer and subsequently transcribed. Sometime later in the evening, Joe was turned over to the custody of juvenile authorities. A petition was filed in the juvenile court, alleging that Joe was within the applicable provisions of § 211.031 by reason of having violated a state law. The juvenile court, after investigation and a hearing, ordered that he might be prosecuted under the general laws. A grand jury subsequently indicted him for murder in the first degree.

In the trial court, the defendant objected to the introduction of evidence relating to his statements while in the custody of the police officers and to physical evidence acquired by the officers as a result of such statements. The trial court overruled his objections and on this appeal the action of the trial court is attacked as erroneous. Defendant’s contention is “that defendant was not, prior to making such statements, * * * advised of his rights to remain silent, to legal advice, or advice from a competent adult, and was not furnished such advice and, therefore, such statements were not voluntary and such evidence was obtained in violation of defendant’s rights under the Juvenile Code of Missouri and under the Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States.”

It is conceded that the police officers who dealt with the defendant were aware that he was fifteen years of age and therefore subject to the Juvenile Code and that the defendant was not turned over to juvenile authorities until after the statements had been made; that he was not advised of his right to remain silent or to consult a lawyer or an adult; that his only opportunity to consult with his mother arose from her presence at the home in the company of the police officers; that the only warning or advice which he received was from the assistant circuit attorney who advised the defendant that the statement which he took might be used against him, although he did not advise the defendant of his right to remain silent. There is no contention that the admissions were the product of actual or threatened physical harm to the defendant.

Additionally, there is no question that Joe’s age of fifteen subjected him to the exclusive jurisdiction of the juvenile court (§§ 211.021 and 211.031, RSMo 1959, V.A.M.S.) in any proceedings involving an alleged criminal offense. Furthermore, § 211.061 required a police officer taking him “into custody * * * for an offense” to take him “immediately and directly before the juvenile court” or to deliver him “to the juvenile officer or person acting for him.” In view of the legislative injunction found in § 211.011 that the Juvenile Code shall be liberally construed, we reject the state’s position that the questioning by the police was not in violation of § 211.061 because the police had the right to confirm that sufficient reason existed to take Joe before the juvenile court before they were required to do so. Once the police considered that they had sufficient reason to take Joe into custody, they were required to take him “immediately and directly” to the juvenile court and it thereafter became the function of that agency to determine, in accordance with the procedures established by Chapter 211, whether or not sufficient grounds existed for the court’s exercise of its jurisdiction.

The question remains as to the effect of noncompliance with § 211.061. We reject appellant’s contention that subsection 3 of § 211.271, by its terms, renders inadmissible statements resulting from police questioning from the moment that a child is taken into custody. The prohibition of that section is against the use of evidence given in juvenile court cases against the child in criminal proceedings. The statements here in question were not “evidence given” in a juvenile court case. However, the absence of express statutory sanction against police procedures in violation of the Juvenile Code does not require that such violations be excused or ignored. In State v. Shaw, 93 Ariz. 40, 378 P.2d 487, the court had before it the question of the admissibility of statements obtained from a juvenile by police interrogation in disregard of a statute (A.R.S. § 8-221) requiring that a police officer arresting a juvenile notify the probation officer “forthwith.” In holding inadmissible the statements obtained in such circumstances, the court stated (378 P.2d 491-493):

“The philosophy which inspired creation of the juvenile court, and statutes implementing it, is that the state recognizes that in the majority of cases involving antisocial behavior (including criminal offenses) on the part of the youthful offenders, there is both a responsibility and an opportunity for the state, through special treatment in a non-criminal proceeding, to redirect and rehabilitate these young people. This operates for the benefit of the individual, and for society as a whole. However, in many states, as in Arizona, it is also recognized that there are certain individuals still within the chronological classification as juveniles, for whom this special treatment is futile. The juvenile court therefore may refuse to continue its jurisdiction in such cases, and may remand these individuals for regular proceedings in the criminal court. Under the law in Arizona, until the juvenile court, which has exclusive jurisdiction of all delinquent children or children accused of crime, has considered the matter and decided that the particular individual is not one who will benefit from its special treatment, a child offender remains in the juvenile jurisdiction.

“While under the juvenile court jurisdiction, a child is under certain disabilities not attaching to an adult. He is not entitled to be released on bail; he does not have the right of trial by jury, or right of compulsory process to compel the attendance of witnesses on his behalf guaranteed by the Arizona Constitution in criminal prosecutions. To compensate for some of these disabilities, the juvenule statutes provide that the juvenile probation officer shall act as a representative in his behalf, and further that if he is arrested by a peace officer, such officer ‘shall forthwith notify the probation officer, and shall make such disposition of the juvenile as the probation officer directs.’

“The need for special treatment begins at the instant the juvenile is contacted by peace officers and this was recognized by the legislature. A few hours of the treatment sometimes accorded mature and hardened criminals can give the impressionable mind of a youth an indelibly warped view of society and its interest in him.

“Unquestionably, the purpose of A.R.S. § 8-221 was to alter the usual method of handling persons arrested on suspicion or for investigation of criminal activities when those persons are juveniles. Moreover, it is apparent that this alteration of methods was intended to protect the interests of juveniles rather than to facilitate police investigations. Since a major feature of the usual treatment of newly arrested persons is interrogation, it follows that one of the purposes of A.R.S. § 8-221 is to protect the juvenile from the adverse effects of this procedure.

“We have carefully considered the possible means of enforcing the policy expressed in A.R.S. § 8-221 and have concluded that the means most in harmony with the purposes expressed and implicit in that section is to preclude the admission of statements obtained by the persuasion of police during the period when the section is being violated.”

In our opinion, this conclusion is entirely consistent with the philosophy of our Juvenile Code. While we recognize the interest of society in the protection of its members against criminal activity, the Juvenile Code recognizes that at the juvenile level, the problem is best proceeded against on a rehabilitative basis under special procedures for the benefit of the child. If our experience shows that the special procedures for the benefit of juveniles are producing results adverse to the best interests of society, then the legislative authority may resort to different procedures. In the meantime, we feel obligated to construe and apply the Juvenile Code as the Arizona court did, “to protect the interests of juveniles rather than to facilitate police investigations.”

We are, of course, determining only the •question here presented. We do not consider the question of spontaneous statements by a juvenile prior to being taken before the juvenile judge or juvenile officer; nor do we consider statements of a juvenile in response to questioning after § 211.061 has been complied with.

We do not consider that the defendant waived his objection to the use of the statements obtained by the police by reason of the fact that experts who examined Joe pursuant to his defense of lack of mental capacity to commit a crime testified that he made similar statements to them. By § 552.030, RSMo 1959, V.A.M.S., such statements could be considered only on the issue of mental capacity.

In view of our conclusion, we do not reach the. formidable constitutional objections to the use of the defendant’s statements in this case. See Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325, 87 A.L.R.2d 614.

Inasmuch as we cannot conclude on the record before us that it would be impossible for the prosecution to make a sub-missible case against the appellant without the use of his statements, the cause should be remanded for a new trial, rather than reversed outright. State v. Missey, 361 Mo. 393, 234 S.W.2d 777; State v. Walker, Mo.Sup., 365 S.W.2d 597.

Reversed and remanded.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . Even the state’s argument cannot justify the continued failure to comply with the requirement of § 211.061 after the police had confirmed that sufficient reason did exist to take defendant to the juvenile court. After the original statement of Joe, the police and the circuit attorney continued to disregard the requirement of § 211.061, presumably in furtherance of the desire of the police and the circuit attorney to “nail down” a murder charge against Joe.

      . This court has applied, without statutory basis, the exclusionary sanction to evidence obtained by members of the State Highway Patrol in violation of the prohibition against their making searches and seizures. See State v. Smith, 357 Mo. 467, 209 S.W.2d 138, 139(1).


author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Charles Herbert WHITE, Appellant.
    No. 51836.
    Supreme Court of Missouri, Division No. 2.
    Oct. 10, 1966.
    Motion for Rehearing or Transfer to Court En Banc Denied Nov. 14, 1966.
    See also Mo., 403 S.W.2d 603.

      Norman H. Anderson, Atty. Gen., Jefferson City, Henry L. Twigg, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Lewis E. Pierce, Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
   FINCH, Judge.

Defendant was convicted of possession of narcotic drugs in violation of § 195.020 (all references are to RSMo 1959 and V.A.M.S., unless otherwise indicated) and was sentenced to imprisonment for a term of eight years, from which judgment he has appealed. Defendant was represented in the trial court and on appeal by experienced counsel of his own selection.

No motion for new trial was filed and on appeal only two issues are raised. Defendant asserts that the information is fatally defective and that he was denied his constitutional right of confrontation with witnesses against him. The limited nature of these questions requires only a brief recitation of the facts.

The information herein charged that defendant had “in his possession a quantity of Narcotics, to-wit: Demerol, Doliphene, Morphine and tiwiure of opium.” The evidence on behalf of the State will support the following recital of facts: On the afternoon of June 8, 1965, Sergeant McKinnie of the Kansas City Police Department received information that a man who had committed a burglary of the Main Street Pharmacy at 43rd and Main Streets was in a house at 2104 East 59th Street, that his name was Charlie White, and that the narcotics taken in the burglary were in the house. Sergeant McKinnie and two other officers proceeded to the house at 2104 East 59th Street, which was occupied by and in the possession of the defendant, Charles White. While they were outside they heard a woman screaming for help. The sergeant looked in the window and saw defendant with a large roll of bills in his hand. The officers knocked on the door and after a short delay the door was opened and they were admitted by the defendant himself. Sergeant McKinnie immediately advised defendant that he was under arrest for burglary of the Main Street Pharmacy and looked at once for a woman or someone else, but defendant informed them that the voice they heard was from a TV program. Sergeant McKinnie took the roll of bills plus some white powder and a hypodermic needle from a chair adjacent to the bed where defendant had been lying. The officers proceeded to search the house incident to the arrest for burglary and found substances which were identified at the trial by the police department chemist as Demerol, Dolophine and morphine sulphate which is a morphine salt. The evidence at the trial consisted of the testimony of the three officers who went to the house at 2104 East 59th Street and the police chemist. Defendant offered no evidence.

Defendant contends that the information herein is fatally defective in that it charges him with two offenses, one for possession of narcotic drugs under § 195.-020, and one for possession of barbiturates or stimulants under § 195.240. No attack was made on the information in the trial court and there was no motion for bill of particulars, but nevertheless we review the sufficiency of the information on appeal. Criminal Rule 28.02, V.A.M.R.

We hold that the information is not duplicitous and does not charge two offenses. It specifically states that the defendant is charged with the possession of narcotics. Nothing whatsoever is said about barbiturates or stimulant drugs. The information then enumerates the drugs charged to have been in defendants’s possession. They are Demerol, Dolophine, Morphine and tincture of opium. At the trial Demerol was identified as being the same as isonipecaine which is listed in § 195.010 as a narcotic drug. Morphine and opium and their salts are included in the definition of narcotic drugs under § 195.010. Dolophine,.which was further identified as methadon at the trial, is not listed in § 195.010, and there was no proof that it does fall within drugs prohibited by § 195.-010. Consequently, we cannot say whether or not Dolophine falls within the prohibition of the Narcotics Drug Act, but in our opinion its inclusion in the information was simply surplusage and did not make the information bad. Criminal Rule 24.11, V.A.M.R. Mere inclusion of the word “Dolophine” in a charge of possession of narcotic drugs did not constitute a charge of possession of barbiturates or stimulant drugs.

Defendant also mentions that at the top of the information against him was typed the words “Section 195.240.” No reference to this section or any other section appears in the body of the information, and we hold that the section number appearing at the top of the information form was surplusage and did not mislead defendant as to the offense charged. It is perfectly clear from the body of the information that the defendant was charged with possession of narcotic drugs. That is the charge on which he was tried and sentenced, and we rule this assignment against defendant.

The second assignment by defendant is that he was denied his constitutional right under the Sixth and Fourteenth Amendments of the Constitution of the United States and under Art. I, § 18(a) of the Missouri Constitution of 1945, V.A.M.S., to be confronted by his accusers and the witnesses against him. This contention arises out of a hearing conducted on a motion to suppress which was filed by the defendant prior to trial of this case. Sergeant McKinnie at that hearing testified that he had received information that the defendant had committed the burglary of the Main Street Pharmacy, that defendant was at that time in the house at 2104 East 59th Street and that narcotics taken in the burglary were there. Sergeant Mc-Kinnie testified that this information came to him from an informant who in times past had proved reliable. On cross-examination counsel for defendant asked for the name of the informant. Objection to the furnishing of this information was made on behalf of the State and by Sergeant McKinnie, who stated that he was fearful the informant would receive bodily harm if his name was revealed. The trial court interrogated Sergeant McKinnie, after which he stated that it was his understanding that it was discretionary with the court whether to require that the name be furnished, and that under the circumstances he would sustain the objection on behalf of the State.

Defendant cites two cases in support of his contention that the refusal of the court to furnish the name of the informant denied his constitutional right to be confronted by his accusers and the witnesses against him. These are the cases of Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, and Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934. Neither of these cases support the position of defendant herein. In the Pointer case the trial court permitted introduction of the transcript of the testimony of the complaining witness from a preliminary hearing at which defendant was not represented by counsel and the witness was not cross-examined on behalf of the defendant. The Supreme Court held that the introduction of the transcript in evidence under those circumstances was a clear denial of the right of confrontation and cross-examination. In the Douglas case the State called an alleged accomplice as a State’s witness and when he refused to testify on grounds of self-incrimination, the trial court permitted cross-examination as a hostile witness and the reading of a purported confession of the witness which implicated the defendant. The Supreme Court held that defendant’s inability to cross-examine the alleged accomplice about the purported confession denied him his constitutional right of cross-examination secured by the confrontation clause of the Sixth Amendment. Neither of those factual situations have any application to the situation herein.

This court in the case of State v. Edwards, Mo., 317 S.W.2d 441, reviewed the question of whether the trial court should require police officers to disclose the identity of informants from whom they have received information. The court held that the question should be determined by the trial court in the exercise of its discretion, dependent upon the facts of the particular case. See also State v. Redding, Mo., 357 S.W.2d 103, and Annotation, 76 A.L.R.2d 262, 343. It would serve no useful purpose for us again to review and analyze the cases upon which that decision was based. Actually, defendant’s brief does not charge an abuse of discretion by the trial court. No point is preserved involving the court’s action in overruling the motion to suppress. Defendant does not assert on appeal that the court committed error in the admission of any evidence against the defendant. There is no complaint that the defendant was denied an opportunity to cross-examine any witness who testified at the trial against him, as there was in Pointer and in Douglas. Under these circumstances, we rule that the trial court followed State v. Edwards, supra, and exercised its discretion in refusing to require the police officer to furnish the name of the. informant. There is no showing of an abuse of that discretion.

We have examined other matters of record pursuant to Criminal Rule 28.02, V.A. M.R., and find no error.

The judgment is affirmed.

All of the Judges concur.


text:
    STATE of Missouri ex rel. GAMBLE CONSTRUCTION CO., Inc., Relator, v. The Honorable Michael J. CARROLL, Judge of the Circuit Court, 21st Judicial Circuit, County of St. Louis, State of Missouri, Respondent.
    No. 52110.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1966.

      David L. Millar, Ray E. White, Jr., Stamm, Millar & Neuhoff, St. Louis, Roberts P. Elam, Clayton, for relator.
    W. W. Sleater and Suelthaus & Krueger, St. Louis, for respondent.
   HYDE, Judge.

Original proceeding in prohibition to prohibit respondent Judge from entering an order striking the pleadings of relator Gamble Construction Company (hereinafter called Gamble) in the case of Fenestra, Inc., against Wagner Electric Corporation (hereinafter called Wagner) and Gamble in the Circuit Court of St. Louis County seeking to enforce a mechanic’s lien against real estate of Wagner. By an amended petition Roof Decks, Inc., was made a defendant because it also claimed a mechanic’s lien against Wagner as a subcontractor of Gamble, the general contractor. Roof Decks filed a cross-claim for a mechanic’s-lien against Wagner and for a money judgment against Gamble, with also a second cross-claim against Gamble for nonlienable items. Gamble then filed a cross-claim against Roof Decks for damages for breach of contract plus the amount of any judgment rendered against it in favor of Fenestra over a designated amount. It was stated at the oral argument that all matters had been finally determined except the issues between Gamble and Roof Decks.

Roof Decks filed interrogatories to be answered by Gamble to which Gamble filed, objections. The court overruled these objections but made no order requiring Gamble to answer these interrogatories or any of them. Instead Gamble was allowed ten days to seek prohibition. At the same time Roof Decks’ motions to strike, for judgment on the pleadings, and to make more definite and certain Gamble’s cross-claim against it were overruled. Gamble did not then apply for prohibition, believing prohibition would not lie against an order overruling its objections to the interrogatories but only to an order requiring it to answer. Thereafter, on Roof Decks’ motion to strike for failure to answer interrogatories, the court on March 11, 1966, ordered Gamble’s pleadings stricken. This order was set aside and a new order, hereinafter set out, substituted for it on March 17, 1966. On Gamble’s application we issued our preliminary rule in prohibition and thereafter when the parties attempted to bring in extraneous issues made the following order: “[T]he issues to be determined by the court are whether the interrogatories of defendant, Roof Decks, directed to defendant, Gamble Construction Company, served and filed on December 28, 1965, are proper interrogatories authorized by Rule 56.01 which the court had jurisdiction to require defendant Gamble Construction Company to answer and whether the court had jurisdiction to enter and order striking the pleadings of Gamble Construction Company when it did not answer said interrogatories.”

Gamble claims striking its pleadings would be in excess of respondent’s jurisdiction when respondent had made no order requiring it to answer the interrogatories. Roof Decks claims that because Gamble did not answer the interrogatories after its objections had been overruled, and did not seek prohibition within the ten days first allowed, this amounted to a final order to answer and authorized striking its pleadings. However, on March 17, 1966, the court entered the following order: “Order entered herein on March 11, 1966, set aside and vacated on the Court’s own motion. Motion of defendant Roof Decks, Inc., to strike pleadings of defendant Gamble Construction Company, Inc., argued on March 11, 1966, taken as submitted; defendant Gamble Construction Company, Inc., granted to and including March 28, 1966, within which to file application to appellate court for writ of prohibition; upon failure of defendant Gamble Construction Company, Inc., to apply for writ of prohibition within said time, or upon writ of prohibition being denied by appellate court, it is the intention of this Court, 10 days thereafter, to sustain said motion to strike of the defendant .Roof Decks, Inc., unless defendant Gamble Construction Company, Inc., answers the interrogatories of defendant Roof Decks, Inc., within such 10 days.”

Rule 56.01 authorizing interrogatories contains no- provisions for enforcement. It only authorizes objections to interrogatories and the determination of objections (considering protection from annoyance, undue expense, embarrassment or oppression) making applicable also the protective orders authorized by Rule 57.01 (c). The enforcement authority comes from Rule 61.01 “upon refusal of a party to answer any interrogatory submitted under Rule 56” after “an order compelling an answer” which may be made on motion of “the proponent of the question.” Of course, such an order could be made at the time the court overrules the objections to the interrogatories but that was not done in this case. However, we consider the order of March 17, 1966 to present the same situation as in State ex rel. Transit Casualty Co. v. McMillian, Mo.Sup., 349 S.W.2d 210, 211, which we considered on the court’s statement that it “will enter an order requiring said defendant (relator here) to answer each of said interrogatories unless prohibited by this Court.” Therefore we hold this case to be properly before us for determination on prohibition.

We rule that Roof Decks’ first seven interrogatories are clearly improper, beyond the scope of what is authorized by Rules 56.01 and 57.01 and beyond the jurisdiction of respondent to require to be answered. Roof Decks’ brief says: “Perhaps in a deposition, each interrogatory may have been broken up into several questions, so that the information could follow an orderly and logical development, but in an interrogatory each question must be all inclusive as a practical matter, so that the person answering the same will know what is required.” As applied to such interrogatories as Roof Decks’ first seven, this is one hundred per cent wrong as shown by the case cited, State ex rel. Hof v. Cloyd, Mo.Sup. Banc, 394 S.W.2d 408, 410, 411, in which we said of a question concerning identity of persons having “relevant knowledge of facts pertaining to the occurrence”: “Interrogation is restricted to factual matters. The question would have been objectionable if asked at the taking of a deposition and has no better standing when propounded as an interrogatory. It calls for a conclusion and determination by the party as to what is relevant knowledge or relevant facts. Furthermore, the interrogatory is vague and uncertain. * * * Attorneys experienced in the taking of depositions or the oral examination of witnesses at a trial should have no difficulty in formulating or recognizing proper written interrogatories. Such interrogatories should call for specific relevant facts and not be repetitious. They should not call for opinions or the conclusions of the person interrogated or require him to resort to speculation or conjecture as to what is intended.”

Roof Decks’ first seven interrogatories in this case have all the defects of those in the Cloyd case and more. No. 1 is as follows: “1. Set forth all the facts relied upon to reach the conclusions set forth in Paragraph 2A of your first amended cross-claim against defendant, Roof Decks, and in so doing, identify by part, location, time, and in every other manner of identification, what you are talking about and the name and residence address of each and every person known to you to have observed such fact.” Paragraph 2A was: “Failed to use care, skill,' reasonable expediency and faithfulness in the performance of said contract.” Each of the other six are in the same language, addressed to other paragraphs of Gamble’s cross-claim, alleging improper acts or omissions of Roof Decks in its work. Two of them contain additional questions, which might be made proper in separate proper form. Could anyone claim such questions as these seven would be in proper form to be asked in depositions or at a trial? None of them are authorized by our rules for either depositions, examination of witnesses at a trial or interrogatories.

Interrogatory 8, “Describe in detail the alleged ‘breach of contract’ ”, asks for legal conclusions and is not a proper interrogatory. Neither is Interrogatory 14 which asks for information necessarily known to Roof Decks. State ex rel. Transit Casualty Co. v. McMillian, Mo.Sup. Banc, 349 S.W.2d 210. Interrogatories 9 to 13 relate to five separate items of damages alleged in paragraph 3 of Gamble’s cross-claim, 3A being “cost of reroofing and repairs to roof $2,264.10.” Interrogatory 9 was: “9. Set forth each item of labor and materials referred to in Paragraph 3A. State where such labor was performed, the number of hours worked by each workman, and the rate of pay of each workman and itemize and identify each item of material by name, size, cost, value, and location when installed. Give name and residence address of each person performing any such labor and names and addresses of each person or company supplying material referred to in such allegation.” Interrogatories 10, 11 and 12 call for similar information concerning other items of Gamble’s cross-claim, except they call for not only “itemization” of all items of cost but also “analysis” thereof, which tends to make these three indefinite and uncertain. Interrogatory IS is indefinite and uncertain as to what is meant by “each section aforesaid,” since there is no previous designation of any “section” in the interrogatories.

Gamble says all of these five and also Interrogatories 15 and 16 would require it to interrogate subcontractors who supplied most of the labor and material; and that obtaining this information would require disclosure of the work product of its lawyers which is privileged, citing Hickman v. Taylor, 329 U.S. 495, 512, 513, 67 S.Ct. 385, 91 L.Ed. 451; State ex rel. Miller’s Mutual Fire Ins. Assn. v. Caruthers, 360 Mo. 8, 226 S.W.2d 711; State ex rel. Kroger Co. v. Craig, Mo.App., 329 S.W.2d 804. As stated in the latter case (329 S.W.2d 1.c. 809): “[T]he general rule seems to be that the interrogated party should be compelled to answer only as to masters of fact within his knowledge and should not be required to express opinions or to engage in research and compilation of data and information not readily known to him.” There is nothing in Gamble’s cross-claim •or prohibition petition about subcontractors but as to items subcontracted Gamble could so state in answering and give the amount paid to subcontractors for such portions of the work. Roof Decks could then take the depositions of these subcontractors if it desired. At the trial Gamble would have to prove the reasonable value of its labor and material used or that the amount it paid to subcontractors was reasonable for the work done. This would likewise be true of the other items of Gamble’s cross-claim inquired about in Interrogatories 10, 11, 12 and 13. Therefore it seems reasonable to require Gamble to give this information.

It is stated in 2A Barron and Holtzoff 321, Sec. 768: “As a general rule a party in answering interrogatories must furnish information which is in his possession and ■can be given without undue labor and expense. However a party cannot generally be forced to prepare his opponent’s case. Consequently interrogatories which require a party to make investigations, research, or ■compilation of data for his adversary are in many circumstances improper. Thus it has been held that a defendant should give plaintiff relevant facts in his possession but should not be required to enter upon an independent research in order to acquire -.information merely to answer interrogatories. A party seeking such information should make his own research. Even if the records containing the desired information are in the possession of the interrogated party, his adversary cannot use interrogatories to evade the burden of compiling data at his own expense if the records are available for his inspection under Rule 58 or by consent of the interrogated party. But the objection that preparing an answer would require research by the interrogated party is not enough to bar the interrogatories in every case. In order to justify sustaining.of an objection to such an interrogatory, it must be shown that the research is unduly burdensome and oppressive. The party seeking to avoid answering the interrogatories carries the burden of showing that the information sought is not readily available to him and where there is conflict the court will make its own determination as to the cost and inconvenience of answering the interrogatories, rather than relying on bare assertions as to this by the party.” Thus the trial court has jurisdiction to determine whether requiring Gamble to answer Interrogatories 9, 10, 11, 12, 13 and 16 (if the improper requirement of analysis in 10, 11, 12 is eliminated) would subject Gamble to annoyance, undue expense, embarrassment or oppression. Therefore, we cannot hold that respondent does not have jurisdiction to require Gamble to answer these interrogatories within a reasonable time.

Our preliminary rule in prohibition is made absolute as to Interrogatories 1 to 8 inclusive and to Interrogatories 14 and 15; and it is discharged as to Interrogatories 9, 13 and 16, and to Interrogatories 10, 11 and 12 except as to the requirement of “analysis.”

All concur.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. James William MITCHELL, Appellant.
    No. 52066.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.
    Norman H. Anderson, Atty. Gen., Jefferson City, Frederick E. Steck, Special Asst. Atty. Gen., Sikeston, for respondent.
    Raymond A. Bruntrager, St. Louis, for appellant.
   PRITCHARD, Commissioner.

Defendant, having waived his right to trial by jury, was tried to the court, found guilty, and sentenced to life imprisonment for the commission of the crime of murder in the first degree. He here • contends solely that the evidence was insufficient to support such finding, having briefed the matter to this court by counsel who was present with him throughout the trial. The testimony of witnesses, bearing upon the judgment of conviction, follows:

On March 31, 1965, William DeVoto was in the Dutch Maid Grill, 1300 Hodia-mont Avenue in St. Louis, in the early morning hours with some friends, Carl Skaggs, Bernie Neumann, and deceased, Everett Barton. While they were sitting around getting coffee, defendant was there and wanted to play the pinball machine, and was telling the lady behind the counter that she had to pay him off for the games he won. He had not yet put money into the machine. Defendant argued with the lady behind the counter, getting pretty loud. Barton, the deceased, was at the end (of the counter) closest to defendant. Deceased stood up and they started fighting, falling under the pinball machine in the corner. DeVoto saw that defendant had a pistol in his hand, so he and Bernie ran over and tried to take the gun from him, but they let him go. Defendant got up and everyone else sat down. Defendant came up and “hollered” at Barton, “Don’t think I wouldn’t shoot you.” Defendant shot into the air and left. About ten minutes later defendant returned and said, “Don’t think that I wouldn’t kill you.” At that time Barton was standing with his back to the door, facing away from defendant who shot him. Ten minutes later the police walked back in with defendant, and showed DeVoto a gun which appeared to be similar to the gun he had previously seen in defendant’s hand. Barton did not have any weapon in his hand.

According to DeVoto, Barton had four or five bottles of beer, but didn’t appear to be drunk in the 3½ hours he was in the group. Barton was seated next to DeVoto at the counter, and defendant was also sitting on a stool, five or six places away from them, and was going back and forth from it to the pinball machine. Defendant kept saying he wanted to get paid off for some’pinball games, and she (the waitress) was saying they couldn’t pay off on a pinball machine. Defendant started saying, “I am from the West, and you can’t tell me that.” They all stood up and defendant and Barton started fighting, rolling under the pinball machine. DeVoto never saw Barton raise a stool, or come down with it on the side of defendant’s head. Barton was lying on his back on the floor, defendant was on top of him with a pistol in his ribs. DeVoto grabbed the pistol and tried to pull it away from defendant. Defendant was then “mad” and excited. Everybody said just to forget everything. He and Barton had each other’s hats, and defendant said, “Give me my hat back.” They traded hats and everybody sat down. Defendant stood there for a minute and said, “Don’t think I wouldn’t have shot you,” and he shot up in the air and walked out. Defendant said, “Nobody pushes me,” or “takes advantage of me,” or something, because “I am from the West.”

Myrtle Simmons was a waitress at the Dutch Maid Grill on March 31, 1965, at about 1:30 a.m. Four men and one woman came in, sat down and ordered coffee. A little later another man, the defendant, came in and ordered coffee too, and complained that it was not fixed the way he wanted it. She put sugar (or cream) in his coffee as he asked, and he went over to play the pinball machine and got into an argument with the other employee. One of the first group complained that defendant was talking too loud, after which he and defendant began to scuffle and fight. Defendant had a gun in his hand and “had it on” the man while they were fighting. Three men who were with the first group tried to break it up and when they saw the gun, they quit. The defendant and the man broke up the fight themselves, after which defendant left. He walked down the street a little way and in a minute or two he came back, walked up behind the first man and shot through the ceiling. He left again and in about the same amount of time came back, saying something like “I’m going to shoot you,” and shot the man in the back. Barton, the man who was shot, said nothing on the last occasion. Myrtle’s version was further that she saw a counter stool in Barton’s hand when he was advancing on defendant before the fight started, but she did not see him hit anyone with the stool, or swing it. She did not see any marks, cuts or bruises on defendant. On cross-examination she testified that she didn’t know whether Barton brought the counter stool down on defendant’s head. When defendant came back into the grill the second time (after a moment or two) he ■ was upset and angry— he was not calm or cool. In the interim a man in pajamas came in to object to the noise — before the shot was fired in the ceiling.

Patrolman Charles Farrell assisted in defendant’s arrest, and upon search found a loaded pistol in his left inside coat pocket. The pistol was identified and there was evidence that the bullet taken from deceased’s body was fired from it.

Leroy Williams was the man who appeared in pajamas at the Dutch Maid Grill, over which he resided. His testimony was that he was awakened by a noise; seemingly somebody was fighting, and he put on his bathrobe and ran downstairs to see what the excitement was. He saw defendant there with a gun in his hand, with which he shot up in the ceiling. Defendant then walked out and Williams went out also. He told defendant to go on home, and defendant replied, “ ‘I am not going home, I’m going to kill me’ a so and so.” Defendant went back inside the restaurant and fired one shot into Barton’s back. At no time did Williams see any marks, cuts or bruises on defendant. Defendant seemed to Williams to be quite nervous, but was not agitated. Defendant had walked a half block to an alley and back before shooting Barton.

Olin McCrary was in the Dutch Maid Grill on the occasion here in question. He heard defendant say to the effect, as he came in the door, “I am from the west coast, and where I am from I get service.” After ordering coffee, defendant went to the pinball machine and asked the waitress if it paid off. She said that it did not. Defendant said, “Well, if I win, if I win, I want my money, I want the machine to pay me.” He said also, if he won and didn’t get his money he would shoot the boss. Someone of another group which had come in (either before or after defendant) said, “Oh, shut up,” and defendant walked over to them. McCrary saw a stool in the air, and it seemed to him that the guy was hit on the shoulder. Later, outside the grill, McCrary overheard defendant say “that he should shoot that so and so.” He saw defendant with a gun in his hand both inside and outside the building. He then saw defendant go back into the restaurant and fire a shot into the ceiling. Defendant came back in about a minute, and McCrary heard a shot, looked around the partition of the kitchen (where he was) and saw deceased fall.

Dorothy Hornbeck was at the time of the homicide employed by the Dutch Maid Grill. She saw Barton and four others come into the grill and order coffee. They were sitting there drinking coffee and playing the juke box when defendant came in and ordered coffee with cream and sugar. She served him with cream only and he told her that where he came from they put sugar in his coffee and “he made a big issue of it.” Dorothy walked away from him and Myrtle put sugar in the coffee. Defendant then went to the pinball machine and put a nickel in it and asked Dorothy if it paid off. She told him no, that it was for amusement only. Defendant then said, “If I win, I will get my money or I will blow somebody’s head off.” At that time he pulled back his coat lapel and showed her his pistol. He followed her and she went to the telephone to call the police, during which time defendant and Barton got into a scuffle, wrestling on the floor, and when she returned defendant was on top of Barton with a gun on him. The others tried to separate the two, but defendant and Barton broke up the fight themselves. They had their hats mixed up so they exchanged, shook hands, and defendant told Barton he was lucky he didn’t kill him. Barton said, “Yes, I am,” and he laughed. He turned around to drink his coffee and defendant left. In two or three minutes he returned, fired a shot into the ceiling and left again. In about the same length of time he came back in and said, “I’m going to kill you,” and he shot Barton in the back. On cross-examination Dorothy testified that Barton did not hit defendant with the counter stool. She saw Barton “start up with it.”

Defendant’s version of the incident, testified to by him, was that when he was standing at the pinball machine he was struck in the left side of his head from behind by someone unknown to him. It knocked him out, and he next remembered being on the floor with a man over him taking the gun and trying to put his (defendant’s) finger between the trigger bar to shoot him. The man had the gun toward defendant’s heart. Defendant pulled the gun away from his heart and fired it into the ceiling. There were five men on top of defendant beating him, and when he fired they all ran and defendant walked to the door. As he reached the door he heard a noise, turned and pulled the trigger. He was upset and the gun went off. He did not remember it hitting anybody. Defendant testified he was in a daze, was unconscious and angry because someone had hit him for no reason at all. He had no words with anyone except the waitress whom he asked about the pinball machine and his coffee. He left the grill, walking from Hodiamont to Easton where the police arrested him. He testified that he was hit so severely that he could hardly move his legs — he couldn’t run. He was in the grill a total of five minutes, two minutes elapsing from the time he was knocked down until he whirled and fired the shot.

On rebuttal, the state produced Detective Robert Boaz, who testified that defendant told him that after he was struck two other parties started to jump on him and he pulled a gun out of his pocket and it accidentally discharged. He then walked out of the restaurant and while standing in front of it he got mad because he had been pushed around inside. He took the gun out of his pocket again, walked in the restaurant, shot Everett Barton while he was sitting on the seat, and he then left the premises. Officer Paul Spavor testified he took defendant to the St. Louis City Morgue where defendant stated that Mr. Barton, whose body was there viewed, was the man whom he had shot.

It was stipulated that there were no weapons found upon deceased, and that upon test deceased’s blood was determined to contain 0.32 percent alcohol.

Defendant argues that he lacked the requisite deliberation to sustain the conviction for first degree murder because he was acting in the heat of passion. § 559.-010, RSMo 1959, V.A.M.S., sets forth that among the elements of a charge and sufficiency of evidence to sustain a finding of guilt of first degree murder there must be deliberation, premeditation and malice.

The elements of malice may be presumed from proof of an intentional killing with a deadly weapon, State v. Whited, 360 Mo. 956, 231 S.W.2d 618, 620 [2-4]. There is no question here but that defendant’s use of the pistol was an intentional killing with a deadly weapon. The question is whether there was sufficient time for defendant to have “cooled off” from the anger and passion engendered by the fight with deceased, Barton. The elements of deliberation and premeditation may be inferred from the circumstances of the case. State v. Johnson, 362 Mo. 833, 245 S.W.2d 43, 46 [3, 4]; State v. Goodwin, Mo., 352 S.W.2d 614, 619 [2-4], The facts here show that defendant, armed with a pistol, came into the Dutch Maid Grill in the early morning hours and exhibited a disposition to cause trouble. If he were not paid off for winning on the pinball machine, he was, according to waitress Dorothy, going to blow somebody’s head off, whereupon he showed his pistol. The fight between defendant and deceased ensued, with defendant apparently the winner with the aid of his pistol which he “had on” deceased. These parties broke up that fight themselves, and, from all the evidence, defendant and deceased made up, exchanged hats, shook hands and parted. The next events are critical to defendant’s claimed lack of premeditation because, he says, he was still acting in the heat of passion resulting from the fight with deceased. It is true, as defendant contends, citing State v. Whited, supra, as parallel to the facts here, that he and deceased were unacquainted; deceased entered the quarrel between defendant and the waitresses over the pinball machine pay-off; deceased advanced on defendant with a counter stool in his hands. The fight ended with defendant on top of deceased (although defendant was smaller physically than deceased). Had the homicide occurred at this point there might be merit in defendant’s contention that he killed deceased in the heat of passion, which removed malice and premeditation and which would then be insufficient to sustain the first degree murder conviction. That is, however, not what happened. Defendant left the restaurant, returned in about two minutes and fired the threatening shot into the ceiling, left the restaurant again, walked to an alley, returned (during which time Williams told him to go on home, and defendant replied, “ T am not going home, I’m going to kill me’ a so and so”) again in about two minutes (witness DeVoto put the time at ten minutes) and shot deceased in the back. The matter of defendant “cooling off” was a fact determination for the trial court, and we rule that these facts were amply sufficient for him to find defendant’s guilt of first degree murder. In the early cases of State v. Dunn, 18 Mo. 419, 424, and State v. Jennings, 18 Mo. 435, 443, the rule was laid down: “If the party killing had time to think, and did intend to kill, for a minute as well as an hour or a day, it is a deliberate, wilful and premeditated killing, constituting murder in the first degree.” See also State v. Holme, 54 Mo. 153; State v. Snell, 78 Mo. 240; and State v. Speyer, 207 Mo. 540, 106 S.W. 505, 509, 14 L.R.A.,N.S., 836, where the court quoted State v. Kotovsky, 74 Mo. 247, “ 'Deliberation is but prolonged premeditation. In other words, in law, deliberation is premeditation, in a cool state of the blood, or, where there has been heat of passion, it is premeditation continued beyond the period within which there has been time for the blood to cool, in the given case. * * * Deliberation is also premeditation, but is something more. It is not only to think of beforehand, which may be but for an instant, but the inclination to do the act is considered, weighed, pondered upon for such a length of time after a provocation is given as the jury may find was sufficient for the blood to cool. One in a “heat of passion” may premeditate without deliberating. Deliberation is only exercised in a “cool state of the blood,” while premeditation may be either in that state of the blood or in “heat of passion.” ’” Here, defendant clearly had the time to cool off from the passion of the fight. The evidence shows that he pondered the act of killing: “Don’t think I wouldn’t have shot you”; that Barton was lucky he didn’t kill him; and to the witness, Williams, “ ‘I am not going home, I’m going to kill me’ a so and so.” The shortness of time for deliberating and premeditating the killing is here immaterial. The evidence shows that both were done by defendant within the meaning of the law, and that the killing was revengefully done — i. e., “Nobody pushes me,” or “takes advantage of me.” There is sufficient proof to sustain the conviction.

We have examined the specified matters of Criminal Rule 28.02, V.A.M.R., and find no error.

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.