author: SEILER, Judge.

text:
    Martin SLAGLE, Plaintiff-Appellant, v. Judithe SINGER and Elisha Dabney, Defendants-Respondents.
    No. 52282.
    Supreme Court of Missouri, Division No. 1.
    Oct 9, 1967.
    Thompson, Walther & Shewmaker, Harold C. Gaebe, Jr., John W. Walbran, St. Louis, for appellant.
    Schwartz & Ely, Robert C. Ely, St. Louis, for respondent.
   SEILER, Judge.

Plaintiff’s wife was fatally injured when plaintiff’s car, driven by defendant Judithe Singer, who was a guest in the home of plaintiff and his wife, collided with a car driven by one Elisha Dabney. Plaintiff was not present in the accident. He sued both drivers for $25,000 for death of his wife. He submitted his case against defendant Singer on the proposition that after the rear end of his car had started to skid to the right while Mrs. Singer was driving in the southbound lane she turned to the left and drove on the wrong side of the road. He submitted against defendant Dab-ney (who was northbound on the east half of the road) on the proposition that Dabney failed to keep a proper lookout. Both Singer and Dabney submitted as a defense contributory negligence on the part of plaintiff in having tires on his car on which the tread “had worn down”, thereby making the car dangerous to persons using it. Singer and Dabney also submitted counterclaims against plaintiff based on the alleged negligence with respect to the worn tires. Plaintiff pleaded and submitted contributory negligence by defendants Singer and Dabney, on the same grounds of negligence as set forth against them in his petition, as a defense to their respective counterclaims.

The jury found against plaintiff on his claims. They found against Defendant Singer on her counterclaim. They found for defendant Dabney on his counterclaim. The only appeal is by plaintiff from the judgment entered against him on his claim against defendant Singer.

We observe first that plaintiff makes no contention there was any lack of proximate cause shown between the worn tires and the collision. We observe further that while defendant Singer points out if plaintiff was negligent as to defendant Dabney (and there is a final judgment outstanding against plaintiff and in favor of defendant Dabney on his counterclaim), it would be inconsistent to say plaintiff was not contributorily negligent as to his own cause of action when his actions are exactly the same as to both defendants, defendant Singer does not urge this as decisive, and the sole issue presented by the parties is whether there was error in defendant Singer’s instruction No. 5, on plaintiff’s contributory negligence.

By stipulation the record before us consists of the testimony of plaintiff, defendant Judithe Singer, and portions of her deposition. Plaintiff, his wife, and their three children lived in Webster Groves. Their close friend, defendant Judithe Singer, and her two children came to stay with plaintiff and family for a few weeks while Mr. Singer was transferring jobs. Plaintiff had purchased a 1959 Volkswagen in July 1962, after he and his wife looked at and drove the car. The car then had about 30,000 miles on it and the tires were worn, although plaintiff did not think they were the original tires. He intended to purchase one or two new tires, but did not. The spare had good tread on it and plaintiff put it on the right front. The two tires on the rear were worn considerably more than the two in front. Plaintiff denied the right rear was bare of tread, but admitted it had “very, very little tread”. This was the only car in the family and plaintiff used it five days a week to and from work, approximately 80 miles per day. He also had made a trip to Pennsylvania and two trips to southeast Missouri in the car and estimated he had put about 4750 miles on the car. Judging from the testimony of Mrs. Singer and statements of counsel in oral argument here, the tires were in the courtroom and shown to the jury. When Mrs. Singer saw the tires after the accident she described them as “slick, absolutely treadless, with the exception of one tire that had halfway decent tread on it.”

The accident happened on Saturday, September 8, 1962. Plaintiff was at home. Someone brought in an advertising handbill and the women decided to see what bargains they could find at a discount department store on the other side of town. Nothing was said in his presence about which one would drive and plaintiff did not see them leave, although he knew in general where they were going. Under the circumstances, it must have been obvious the trip would involve using the car. Earlier that morning Mrs. Singer had asked if she could use the car Sunday morning to go to church and plaintiff said yes. She had driven another car owned by plaintiff when the two families lived in Connecticut, where they first met and became friends, and plaintiff had no objection to her using or driving the car. He knew the two women had been out in the car together before. Mrs. Singer testified she usually drove and that on the day of the accident the two women decided Mrs. Singer would drive.

On the return from the shopping trip they were driving south on Lindbergh, a north-south four-lane street in St. Louis County, going between 30 and 35 miles per hour. It was raining, “medium intensity” and had been raining all day. They were in the west or right-hand lane, proceeding straight ahead. Without Mrs. Singer doing anything to cause it, the car started to slide, the front end going to the left and the rear end to the right, heading for the northbound lanes at a forty-five degree angle. Mrs. Singer said she made no movement of the steering wheel until they had crossed the center line and then she turned it left, very slightly, trying to bring the car under control (in doing this she relied on a magazine article about what to do in event of a skid. It was later shown that the article recommended turning right instead of left as the proper correction). The collision with the Dabney car occurred on the east half of the road, in the northbound lanes. It does not appear from the record how close the Dabney car was when the Slagle car crossed the divider, although Mrs. Singer said she saw some northbound traffic which she thought was about 200 to 300 feet away.

It is conceded that plaintiff said nothing to Mrs. Singer about the tires. Mrs. Singer said she had driven the car 10 or 12 times before the accident without anything unusual occurring, that she had never really looked at the tires, that she had on previous occasions driven small cars in the rain on similar highways with no difficulty or skidding.

Instruction No. 5, copy of which bore the notation “[MAI 26.01 and 28.01 (modified)]”, reads as follows:

“Your verdict must be for the defendant Judithe Singer on plaintiff’s claim for damages whether or not Judithe Singer was negligent if you believe:
“First, plaintiff allowed and permitted Judithe Singer to drive the Volkswagen automobile, and
“Second, some of the tires on the automobile had worn down tread and the automobile was thereby dangerous to persons using it in the manner and for the purposes intended, and
“Third, plaintiff knew or by using ordinary care could have known of the dangerous condition, and
“Fourth, Judithe Singer did not know and by using ordinary care could not have known of the dangerous condition, and
“Fifth, plaintiff failed to warn Judithe Singer of such dangerous condition, and
“Sixth, plaintiff was thereby negligent, and caused or directly contributed to cause any damage plaintiff may have sustained.”

The only attacks which plaintiff makes on it are these: first, that it “significantly and prejudicially” deviated from MAI 26.01 in that in paragraph First are used the words “allowed and permitted” instead of “furnished”; that these words are not particular as to time and thus the jury was not directed to find “who furnished plaintiff’s car to defendant”; that it may be that defendant drove the car by arrangement with the wife; second, that this change in wording “obfuscated” the jury’s deliberations concerning the ultimate fact it should have been required to find, namely, to whom plaintiff’s car was bailed, that the instruction did not require a finding the car was bailed to defendant, that the car was actually delivered to plaintiff’s wife and she was as aware of the condition of the tires as he was, and, third, that the instruction erroneously required the jury to find that plaintiff knew or by the exercise of ordinary care could have known of the dangerous condition, whereas as a gratuitous bailor plaintiff had no such duty as to a gratuitous bailee or guest of the bailee.

We believe plaintiff misconceives his position and duty under the circumstances. Plaintiff, as the owner of the automobile, is subject to the rule that he is “* * * bound to use reasonable care to see that the tires are in proper condition for operation on the highway, and may be held liable for a collision or accident resulting from his failure to have his vehicle equipped with tires in reasonably safe and proper condition * * * ” 8 Am.Jur.2d, Automobiles and Highway Traffic, pp. 253-254.

See also Standard Oil Co. of Indiana v. Leaverton, 239 Mo.App. 284, 192 S.W.2d 681, 682, where the court said:

“ * * * The law imposed upon defendants as owners of the automobile the duty to exercise ordinary care to see to it that when permitted by them to be operated over the public highways and other parts of. the city, the automobile was not so defective that such operation would thereby endanger the property and persons of third parties. * * * ” Accord: Vogelgesang v. Waelder, (Mo.App.) 238 S.W.2d 849, 854; Spelky v. Kissel-Skiles Co., (Mo.App.) 54 S.W.2d 761, 762-763.

“The determinative factor in rendering the owner or operator of a motor vehicle liable for injuries sustained in an accident as a result of the defective condition of the tires is usually the knowledge of the owner or operator, express or implied, of the condition of the tires * * * ” 8 Am. Jur.2d, Automobiles and Highway Traffic, p. 254. There can be no question but that there was ample evidence in the case at bar from which the jury could find that plaintiff knew, or by the exercise of ordinary care, could have known of the defective condition of the tires.

Plaintiff also seems to overlook the well established rule that in an action by the surviving spouse for the alleged wrongful death of the other, negligence by the surviving spouse in his individual capacity which proximately contributes to the injury and death is sufficient to bar recovery, Dye v. Geier, (Mo.Sup.) 345 S.W.2d 83, 86, and authorities there cited. A somewhat comparable situation involving a defective automobile is found in Stafford v. Freightways, Inc. (D.C.W.D.Mo.) 117 F.Supp. 903, 908, where a mother was held barred by her contributory negligence for recovery for death of one child and loss of services of two others, the court saying:

“In this case, the mother of the children involved in the accident was negligent. During the long night she was being driven around in a worn out and an unfit automobile * * *. She knew the hazards inherent in the automobile wherein she was a passenger and in which she placed her children * * * ”

Here plaintiff as owner of the car had it within his power to keep the car with its unsafe tires off the street in wet weather. Instead, he let his wife and their friend take the car to go shopping. As it turned out his wife and third parties were injured because the car skidded out of control on wet pavement due to the slick tires. The effect of plaintiff’s contributory negligence in letting the car be used under these circumstances is not lessened, no matter whether he “bailed” the car to his wife or Mrs. Singer, or both, or whether he furnished it to them, permitted them to use it, loaned it, or however it is described.

It is thus seen that MAI 26.01 is not, under the facts of this case, an applicable instruction which, under rule 70.-01(b), must be given to the exclusion of any other on the same subject, so that we need not consider the effect of using the words “allowed and permitted” instead of “furnished” as if we were dealing with an MAI Instruction which must be given to the exclusion of any other. MAI 26.01, as its language connotes and as the Committee’s comment indicates, Missouri Approved Jury Instructions, pp. 214-215, relates to suppliers of chattels for a business purpose. The Committee points out that the pattern instruction “covers only one area and will merely serve as a guide where the substantive law requires that other issues be submitted”. Rule 70.01(e) provides for modifications of MAI where necessary to submit the issues fairly in a particular case or where there is no applicable MAI. Here there was no applicable MAI and so this is not an example of an unnecessary deviation from a required instruction. Defendant Singer submitted a modification of MAI 26.01 which meets the requirements of being simple, brief, impartial, free from argument and not submitting detailed evi-dentiary facts. We do not believe instruction No. 5 is susceptible to the particular attacks plaintiff makes against it and therefore overrule plaintiff’s contentions and affirm the judgment.

Judgment affirmed.

HENLEY, P. J., and HOLMAN, J., concur.

STORCKMAN, J., not sitting when cause was submitted.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Fred Leonard CRIDER, Appellant.
    No. 52482.
    Supreme Court of Missouri, Division No. 1.
    Oct. 9, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Charles G. Hyler, Special Asst. Atty. Gen., Farmington, for respondent.
    Jay White, Rolla, for appellant.
   SEILER, Judge.

Defendant was charged with armed robbery with one previous felony conviction, convicted by the jury, sentenced by the court to thirty years’ imprisonment, and appeals. Defendant is represented here by appointed counsel, who has briefed and argued the case. Defendant admitted the prior conviction, etc., in the hearing before the court on this aspect of the charge and no contention is made that the state failed to make a case for the jury on the armed robbery charge. There is evidence in the record from which the jury could find that defendant was one of two men who held up a farmer, in his bedroom, at night, at the point of a shotgun which they jabbed into his stomach, and made off with $27 and his watch, automobile, and car title.

Defendant claims error first in that he was not allowed twenty peremptory challenges (we take this to mean twelve, since the case was not tried in a city of more than 100,000 inhabitants, Sec. 546.180, subd. 2(1) ) inasmuch as death could result from the conviction, Sec. 560.135. ' However, the state, prior to voir dire, expressly waived the death penalty, as it may legally do and hence, defendant could only have received a sentence of from five years to life imprisonment, State v. Redding, (Mo.Sup.) 357 S.W.2d 103, and State v. Garrett, (Mo.Sup.) 282 S.W.2d 441. Defendant was therefore entitled only to eight peremptory challenges and a qualified panel of twenty-four jurors was sufficient, Sec. 546.180, subd. 1(2). Defendant contends the prosecuting attorney should not be allowed to waive the death penalty and thus limit to that extent the power of the court to determine the punishment under the habitual criminal statute, Sec. 556.280, but cites no authority in support of this proposition and we fail to see how defendant could have been prejudiced by elimination of a possible death sentence. We accordingly overrule defendant’s first contention.

Defendant next contends that the trial court erred in denying defendant’s request for the rule excluding witnesses from the courtroom, but it has frequently been 'held this is not a matter of right of the defendant and .rests in the sound discretion of the court, State v. Foster, (Mo.Sup.) 349 S.W.2d 922, 923, and State v. Lord, (Mo.Sup.) 286 S.W.2d 737, 741. There is no showing of any abuse of discretion or any harm to defendant, and this contention is also overruled.

Defendant next contends there was prejudicial error in the closing argument of the prosecutor. In the cross-examination of state’s witness Mitchell as to how he and defendant got along, the witness said, “Fair”. He was asked for a better definition of “fair”, to which he made the unresponsive answer of, “Well, we do — of course, he was in Jeff City serving time and I never did see him, nothing like that * * * ” No objection was made to this response and there was no request to strike or to instruct the jury to disregard it. Defendant did not take the stand. Then in closing argument the prosecutor, apparently answering an attack made by the defense upon the witness Mitchell as to why Mitchell had failed to ask defendant what he was doing with a loaded shotgun in the back seat of Mitchell’s car the night of the robbery, said:

“Mr. Hoertel: * * * They try to make a whole lot out of Raymond Mitchell’s story, but if I had had somebody, and known somebody, as long as he’s known Fred Crider, almost all his life, and known that he’s been in the penitentiary, like he said—

“Mr. Turley: Just a minute. Just a minute. I object to that. That’s improper argument. Ask the court to instruct the jury to disregard that.

“The Court: Sustained. The jury will disregard that.

“Mr. Hoertel: All right. And if he knew those things and knew Fred Crider had a loaded shotgun in his car, you don’t ask him a whole lot of questions. You’re not out hunting quail at 9:30 at night * * * ”

The court did what defendant asked be done. No further action was requested. There was no request for mistrial or to reprimand. For this reason the matter is not now available to defendant and the point is overruled, State v. Marlin, (Mo.Sup.) 177 S.W.2d 485, 487, and State v. Cheatham, (Mo.Sup.) 340 S.W.2d 16, 20.

Defendant’s final contention is that the term of thirty years is excessive, but it is held that when the punishment is within the range prescribed by statute it cannot be judged excessive by the appellate court, State v. Wolfe, (Mo.Sup. banc) 343 S.W.2d 10, 16, and State v. Gray, (Mo.Sup.) 360 S.W.2d 642, 645, and this contention is also overruled.

We have examined those parts of the record required under rule 28.02 and find no error therein.

The judgment is affirmed.

All concur.

      . All references to statutes are to RSMo 1959 and Y.A.M.S.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Vernon HOLMES, Defendant-Appellant.
    No. 52169.
    Supreme Court of Missouri, Division No. 1.
    Oct. 9, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., Special Asst. Atty. Gen., St. Louis, for respondent.
    Stewart & Bruntrager, Raymond A. Bruntrager, Joseph G. Stewart, St. Louis, for appellant.
   WELBORN, Commissioner.

Robert Vernon Holmes was charged by indictment in the St. Louis Circuit Court with stealing more than $50 by deceit. Upon trial, a jury returned a verdict of guilty. The defendant was sentenced to six months’ imprisonment and a fine of $1,-000 was imposed. This appeal followed.

The appellant operated an automobile leasing business in the City of St. Louis. Purchases of the leased vehicles were financed through the Jefferson Bank and Trust Company. On February 20, 1963, he presented to the loan officer of the bank two purported invoices for new cars purchased by Holmes from Geo. Pappas Ford Center, Inc. In accordance with its practice in prior transactions the bank loaned Holmes $2,500 on each vehicle and $5,000 was transferred by the bank to the Holmes account. The Holmes account was reduced by withdrawals to twelve cents by March 13, 1963. When demands for titles to the two vehicles were nonproductive and after default on the loans, an investigation by the bank revealed that the two vehicles purportedly covered by the invoices were nonexistent. At the trial, representatives of Pappas Ford stated that the invoices presented to the bank had not been prepared by Pappas. Representatives of the Ford Motor Company testified that their company had not manufactured vehicles with the serial numbers shown on the invoices.

On this appeal appellant does not question the sufficiency of the evidence to support the conviction. All assignments of error relate to ruling by the trial court on evi-dentiary questions at the trial. The first two objections are related and will be considered together.

The bank’s installment loan officer who dealt with Holmes testified that he had thirty-one transactions with the appellant. In what was obviously an effort to disprove the element of reliance upon the two bogus invoices here involved, defense counsel on cross-examination asked whether or not the bank had ever advanced money to Holmes without requiring invoices. The officer explained that he recalled two such instances. On redirect examination, the officer testified that one of the two transactions to which he referred involved a $2,500 loan, in April, 1961, to a Miss Delores Patton, on which Holmes was a co-signer. The second was a $2,500 loan in April, 1962, to Holmes and was not a leasing company transaction. The state was permitted to introduce the bank’s ledger record of these loans, on each of which there had been a default and an unpaid balance at the time of the trial of Holmes.

On this appeal, appellant con7 tends that evidence of these transactions was irrelevant to any isgue in the case and was highly prejudicial to the appellant. However, it is obvious that this area was opened by the appellant’s counsel. He sought to discredit the claimed reliance upon the invoices as inducing the loans. Perhaps somewhat excessive details of the transactions were presented in rebuttal. However, appellant’s counsel sought details by such inquiries as to whether or not there was an unpaid balance on these loans. This situation is controlled by the rule which precludes a defendant from asserting, error on the basis of the state’s presentation of evidence to clarify or explain matter brought into the case by the defendant’s own questions. State v. Hermann, Mo.Sup., 283 S.W.2d 617, 620 [6, 7]; State v. Crocker, Mo.Sup., 275 S.W.2d 293, 296 [1,2].

Appellant’s next two assignments of error are related. One of the invoices presented to the bank on February 20, 1963 described the vehicle which it purported to cover as bearing serial number 3Z62K-107991. In the course of the subsequent investigation by the bank, the person conducting the investigation wrote the letter “F” over the letter “K.” The reason for the change was not shown. The Ford Motor Company had not manufactured a vehicle with the serial number shown, containing the letter “K.” A vehicle had been manufactured with the serial number which the substitution of the letter “F” produced. The vehicle with that number did not fit the vehicle otherwise described in the invoice. Testimony of Ford Motor Company representatives was that the vehicle with the “F” number was not delivered to Pap-pas Ford. In an effort further to trace the ownership of the vehicle with the “F” number, an auditor for the Motor Vehicle Registration Division of the Department of Revenue was called to testify concerning the records of that office relating to the vehicle.

The auditor, Frank Haggarty, testified that title registration records of the Motor Vehicle Unit were kept under his supervision. He produced several documents two of which are the subject of the appellant’s objections. Marked as an exhibit was a certification form, executed by the Supervisor of Motor Vehicle Registration. The certification was to the effect that the annexed pages constituted a true copy of “application for Missouri title number 1923380 in the name of John Lue, 614 East Lafayette, Mexico, Missouri, covering' a 1963 Ford Galaxie 500, four-door, with an identifcation number 3Z62F107991.”

According to the witness, he had brought the certificate affixed to a photostatic copy of an application for title. Apparently the two documents became separated and they were identified and offered in evidence separately.

The witness was asked to read the certificate and, over objection, he did so. Subsequently, at the close of the state’s case, when the document bearing the certificate was offered in evidence, the court excluded it on appellant’s objection, but refused to instruct the jury to disregard the evidence in the form of the reading of the certificate.

The photostatic copy of the application for title was introduced into evidence over appellant’s objection.

On this appeal, appellant assigns error in the court’s ruling on his objections. The basis of error here assigned is that there was no proper-foundation for the admission of what appellant describes as the secondary evidence contained in the certificate or the copy of the title application because the absence of the original application had not been accounted for.

The rule which appellant relied upon is not here applicable. By law, applications for motor vehicle titles are required to be filed with the Department of Revenue, § 301.190, RSMo 1959, V.A.M.S., and kept as official records, § 301.350, RSMo 1959, V.A.M.S. “A copy of a public paper required to be filed, certified by the officer intrusted with its custody, is admissible in evidence if the original is admissible.” State v. Worden, 331 Mo. 566, 56 S.W.2d 595, 598 [8-10]; State v. Tarwater, 293 Mo. 273, 239 S.W. 480, 482. Here the certification and the document to which it applied had become separated. However, the witness identified the certification as applicable to the copy of the application. The witness also testified, as custodian of the file, that the offered photostat was a true copy of the filed application. The document was admissible as was the certification applicable to it. No error resulted from the court’s permitting the certificate to be read and the subsequent admission of the copy of the application.

Appellant’s next assignment of error relates to the introduction into evidence of enlarged reproductions of the bank’s microfilm copies of six checks drawn on the Holmes Leasing Company account and signed by the appellant. The checks involved purport to have been drawn by appellant between February 22, 1963 and March 8, 1963, for a total of $281.50. Appellant’s objection is that the copies introduced were secondary evidence presented without accounting for the original documents.

A similar contention was advanced in United States v. Manton, 2 Cir., 107 F.2d 834, 844 [12]. In passing upon it, the court stated:

“The trial court over objection admitted in evidence what are called recordak facsimiles of checks. The objection made to this ruling of the court is that such facsimiles do not constitute the best evidence. These recordaks are photostatic reproductions of the face of checks which have been paid; and they were offered as evidence of such payments. It is argued that the original checks themselves were the best evidence and that their absence should have been accounted for as a prerequisite to the admission of the recordaks. With this contention we cannot agree. These re-cordaks are made and kept among the records of many banks in due course of business and are within the words of 28 U.S.C. § 695, 28 U.S.C.A. § 695. Their accuracy is not questioned. They represent, in the course of a year, perhaps millions of transactions. No one at all familiar with bank routine would hesitate to accept them as practically conclusive evidence. As proof of payment, they constitute not secondary but primary evidence.”

28 U.S.C.A. § 695 (now 28 U.S.C. A. § 1732) is substantially the same as our § 490.680, RSMo 1959, V.A.M.S. In addition we also now have § 362.413, RSMo 1965 Cum.Supp., V.A.M.S., especially applicable to the reproduction of bank records. Under such statutory provisions, the reasoning in United States v. Mantón, supra, is here applicable and the assignment of error is without merit.

In addition, in this case, when the matter of production of the checks first arose, some four days before the actual introduction of the copies, the appellant’s attorney advanced the suggestion that the bank’s microfilm copies of them be produced, a suggestion which the state accepted and followed.

Appellant’s final assignment of error relates to the introduction of evidence of other transactions in which the appellant produced bogus invoices and received loans in reliance upon them.

The bank had some thirty-one transactions with Holmes in which it advanced loans on the security of automobiles purportedly leased by Holmes. In addition to the two loans on which the charge in this case was based, the state was permitted to show that, on or about November 15, 1962, two bogus invoices were produced by Holmes, upon which loans were made and another such transaction occurred on or about December 13, 1962. The state went into some detail to show that the invoices were bogus and also showed the balance unpaid on the notes.

In his brief here, appellant acknowledges that the rule that the state may not present evidence of separate and distinct crimes other than that for which the defendant is being tried is subject to certain well-recognized exceptions. Appellant cites State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, where those exceptions are stated as follows (1. c. 307) : “ ‘Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.’ ” Here, the other transactions had important bearing upon the proof of intent. This is the type of case in which similar transactions' are particularly relevant on the issue of intent. The fact that such other transactions involved criminal acts does not render this proof inadmissible. State v. Jackson, 112 Mo. 585, 20 S.W. 674, 676; State v. Hotsenpiller, 359 Mo. 1031, 224 S.W.2d 1014, 1017 [3, 4]; State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, 204 [9, 10]; State v. Gilpin, Mo., 320 S.W.2d 498, 501-502 [1]; State v. Niehoff, Mo., 395 S.W.2d 174, 180 [4, 5]; State v. DeClue, Mo., 400 S.W. 2d 50, 55 [9, 10].

We find no error in matters of record examined pursuant to Supreme Court Rule 28.02, V.A.M.R.

The judgment is affirmed.

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.


author: FINCH, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Carl C. McCLANAHAN, Appellant.
    No. 52385.
    Supreme Court of Missouri, Division No. 2.
    Oct. 9, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, John P. Madigan, Jr., Special Asst. Atty. Gen., St. Louis, for respondent.
    August F. Ottinger, Jr., St. Louis, for appellant.
   FINCH, Presiding Judge.

Defendant was charged with stealing a motor vehicle and with four prior felony convictions. He was convicted by a jury of stealing the motor vehicle and the trial court made the necessary findings under the Habitual Criminal Act with reference to the four prior convictions. Defendant was sentenced to imprisonment for eight years and he appeals.

The only issue presented on appeal is whether there was sufficient evidence to make a submissible case and to support the verdict. The State’s evidence, viewed most favorably to it, justified the jury in finding the facts to be as herein recited.

Berry Turner, employed at Washington University Medical School, owned a black 1965 Chevrolet Impala. On December 15, 1965, Turner had this automobile parked in the 4500 block of McKinley Avenue in St. Louis, Missouri. The car was locked and the keys were in Turner’s pocket. He could see the car from a window in the laboratory where he was employed. Sometime between 3:00 and 3:20 p. m., he looked out the window and saw his car parked where he had left it. He did not look out the window anymore, but when he got off work at 4:00 p. m. and went to his car, it was gone. He reported the theft to the police, and he next saw his car at about 5:00 p. m. in the 1500 block of Clara Avenue, after the police reported to him that they had located it.

Sometime between 4:00 and 4:30 p. m. of that day, Officer Leo Yaeger drove along the 1500 block of Clara Avenue enroute to turn the school signs at Burd and Cote Brilliante, which was approximately one block away from the 1500 block of Clara. Officer Yeager notice a black 1965 Chevrolet in front of 1521 Clara and observed a Negro male in the rear seat of the car. When he had turned the school signs around, he heard a description of the Turner 1965 Chevrolet being broadcast. He remembered seeing the black Chevrolet at 1521 Clara and went back to check it. The license plate on the car was the one mentioned in the broadcast. Officer Yaeger observed a male Negro in the front seat under the steering wheel, bent over toward the right side of the car. The officer radioed for assistance and then alighted from his police car, with shotgun in hand, and placed the male Negro under arrest. It was the defendant herein. The officer testified that when he first drove down Clara Avenue he did not observe the man in the back seat sufficiently to say whether or not it was the defendant.

When Officer Yaeger arrested the defendant, both the hood and the trunk lid of the car were up. The lock in the trunk lid had been punched out and was on the ground alongside the automobile. The ignition had been tampered with and á set of keys was found in the ignition. These were not keys belonging to Turner. The automobile clock had been removed from the dashboard and was hanging down, but still connected by wires. Certain car tools, a duffel bag, and a jar of antifreeze were on the ground near the car. Mr. Turner later identified these as his property and as having come from the trunk of his car.

Officer Yeager searched defendant after he arrested him and had him alight from the car. A piece of copper wire and a screwdriver were taken from the defendant’s pockets.

The only evidence offered by defendant was given by Joseph Noskay, who was Acting Director of the Public Defender’s Bureau of the City of St. Louis. He testified that he knew the defendant and had known him for several years, and that he saw him in the Criminal Courts Building on December 15, 1965. He first had seen him in the morning and then saw him again at about 3:30 or 3:35 p. m. Defendant also developed on cross-examination of Berry Turner that it took him approximately thirty minutes to drive from Washington University to the vicinity of the Court House, park his automobile, and go to the third floor of the Criminal Courts Building.

This evidence is sufficient to sustain the conviction of defendant of stealing Turner’s 1965 Chevrolet automobile. Unexplained possession of recently stolen property is sufficient to sustain a conviction of stealing that property. State v. Jones, Mo., 358 S.W.2d 782; State v. Dobson, Mo., 303 S.W.2d 650. The automobile in question was stolen within an hour of the time Officer Yaeger found the defendant sitting in the driver’s seat of that car. He was the only person in the vehicle and in the exclusive possession thereof. The car had been moved from the 4500 block of McKinley to the 1500 block of Clara. The ignition had been tampered with and keys which were not Turner’s keys were in the ignition. The lock of the trunk lid had been punched out, the lid was up, and articles taken from the trunk of the car were on the ground nearby. A piece of wire and a screwdriver were found in defendant’s pockets, and the officer testified that the wire could have been used to open a locked car. Defendant asserts that there is no evidence to show exactly how the locked car was entered or how or by whom it was moved. He also asserts that no one saw defendant take and move the car. Such evidence was not necessary. The evidence which was offered, and which is recited herein, was sufficient to sustain the conviction. Nor does the fact that Officer Yeager saw an unidentified person in the back seat of the car a few minutes earlier change the situation. The officer did not testify that this was a different person than defendant. He simply did not sufficiently observe him when he first passed the car to be able to state whether it was the defendant. He could say only that it was a Negro male, and this, of course, could fit the defendant.

Defendant also relies on the fact that Turner testified that it took thirty minutes for him to go from Washington University Medical School to the third floor of the Criminal Courts Building whereas, according to defendant, the evidence indicated that he had only twenty-five or thirty minutes from the time he was seen by Mr. Noskay until the car was taken at 4 o’clock. This, of course, was evidence for the jury to consider, but it is not sufficient to require a directed verdict nor to overcome the evidence of defendant’s presence in the stolen automobile when arrested. Mr. Noskay testified that he was very busy on the day in question and did not keep a written record as to his time. He was testifying as to his best recollection when he testified that he saw the defendant at 3:30 or 3:35 p. m. on that day. Furthermore, Berry Turner left his work at 4:00 p. m., but there was no testimony as to the exact moment at which he reached the point where his car had been parked and found that it had been stolen. The fact remains that defendant was in the exclusive possession of the stolen car at between 4:30 and 5:00 p. m., which was not more than an hour after it was stolen.

We have examined those parts of the record required under Supreme Court Rule 28.02, V.A.M.R. and find no error therein.

The judgment is affirmed.

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Nathaniel CROCKETT and Bobby Dean Edwards, Appellants.
    Nos. 52320, 52921.
    Supreme Court of Missouri, Division No. 2.
    Oct. 9, 1967.
    Modified on Court’s Own Motion Oct. 26, 1967.

      Charles T. Herrmann, St. Louis, James A. Bell, St. Louis, for appellants.
    Norman H. Anderson, Atty. Gen., Jefferson City, James T. O’Brien, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   STOCKARD, Commissioner.

Defendants Bobby Dean Edwards and Nathaniel Crockett were jointly charged and tried for burglary second degree and stealing (each being charged with a previous felony conviction), and after the jury found both defendants guilty the court sentenced each to imprisonment for ten years for the burglary and five years for stealing, the sentences to run concurrently. Each defendant filed a notice of appeal, and the two appeals were assigned the same number (Case No. 52,320) by this court, and have been treated as consolidated. Subsequently, defendant Edwards filed a motion pursuant to the provisions of Supreme Court Rule 27.26, V.A.M.R., in effect prior to September 1, 1967, which motion was overruled by the trial court without an evidentiary hearing. Defendant appealed, and that appeal (Case No. 52,921) was ordered consolidated with Case No. 52,320.

We shall first consider the appeal of defendant Crockett. In his brief, filed by employed counsel of his own selection, four assignments of error are made. Other allegations in his motion for new trial which have not been briefed are deemed waived or abandoned, Supreme Court Rule 28.02, except those which relate to the sufficiency of the information, verdict, judgment and sentence.

Defendant Crockett contends (but we note that no such contention is made by defendant Edwards) that the trial court erred in “not entering a directed verdict and judgment of acquittal” because there was insufficient evidence to sustain the judgment.

The evidence, viewed most favorably to the State, authorized the jury to find the facts as herein stated. About six o’clock of the evening of January 14, 1966, Mr. Robert Weeden, Sr., checked the doors, a transom over the back door, and the windows on the first floor of a store building located at 5588 Easton in the City of St. Louis. All were closed and locked. The first floor had recently been vacated by a tenant, but located therein there was a cigarette machine containing cigarettes and a “little candy and chewing gum” machine. Mr. Weeden then went to his living quarters which were located on the second floor. A few minutes after nine o’clock that evening he heard a noise which sounded like the breaking of glass. He went to a second floor window facing on the back yard and saw two men pull or drag a cigarette machine out of the rear door and into the yard. He told his wife to call the police, and he continued to watch the two men. When told by his wife that the police had arrived Mr. Weeden ran down the steps and to the rear of the building where he met two police officers. When the officers approached and arrested the defendants, the machine was lying on its side on the ground. The defendants were bending over the cigarette machine, and there was a screwdriver “hanging on the lock on the machine.” Although Mr. Weeden stated that he could not identify the defendants as the two men he observed from the second floor window, he said the two he observed from the window were the same two arrested by the police. He determined this by reason of their “long coats and dark hats,” and because his “eyes were only off of them not over two and a half or three minutes and they were in the same spot, in the same position.” Mr. Weeden examined the building and found that the transom over the rear door was broken and the wire mesh covering i had been pulled off, and that a bar on the inside of the door which served as a lock was “pulled out” and the door was open. The cigarette machine had not been opened when the police arrested the defendants, and when searched no cigarettes or “change” were found on them. However, a side of the machine showed evidence of having been “pried,”

Defendant Crockett did not testify, but defendant Edwards elected to do so. He stated that he and Crockett had been in a nearby tavern, and that after they left about 9:15 o’clock of the evening of January 14, 1966, they walked into the back yard of the building located at 5588 Eas-ton, and saw two boys running and also saw the cigarette machine back of the building. While they were bent over looking at the cigarette machine they were arrested.

This evidence clearly authorized a finding by the jury of all elements of burglary second degree and stealing.

Defendant Crockett’s next point in his hrief is that the trial court erred in giving Instruction 12 because it “is an instruction on circumstantial evidence, and * * * it is improper to give an instruction on circumstantial evidence when there is direct evidence against the defendant, * *

The transcript shows that the following occurred at the conclusion of all the evidence :

“The Court: Let the record show that counsel for defendants have had copies of the court’s instructions during the noon recess of an hour and twenty minutes.
“Mr. Bell [Counsel for defendant Crockett] : May the record further show that on behalf of the defendant Nathaniel Crockett I object to each and every instruction as given by the court and to each verdict form; and let the record further show that defendant Crockett hereby requests that the Court should give an instruction on circumstantial evidence.”

The court indicated that it was “not too sure” that an instruction on circumstantial evidence was required, but “perhaps it would be appropriate” and that by renumbering the pages he could and would give it. Under these circumstances defendant Crockett is not entitled to complain on appeal that it was error for the trial court to give an instruction on circumstantial evidence. State v. Livers, Mo., 340 S.W.2d 21; State v. Swiney, Mo., 296 S.W.2d 112.

The next point presented by defendant Crockett is that the trial court “unduly limited defendant on voir dire examination when defense counsel attempted to ask the panel the following question: ‘Whether or not on suspicious circumstances above [sic] they would convict.’ The court reused to allow counsel for defendant [to] preface the question or to ask same which is contrary to law.”

Defendant Crockett’s counsel asked the jury panel several questions of a general nature. The last question was whether the jury panel members understood that if the State failed to prove the guilt of the defendant beyond a reasonable doubt it would be the duty of the jury to find the defendant not guilty. He then said this: “Of course, under Missouri law or in many lawsuits there may arise what we call suspicious circumstances, and of course suspicious circumstances of themselves, without any other evidence, are not sufficient under the law to convict a man.” Counsel for the State then objected to “talking about what the law is” and the court sustained the objection, and commented: “In many cases we tell juries that crime can be proved by circumstantial evidence or by direct evidence. It is for the jury to determine whether the circumstantial evidence is sufficient. It cannot be determined before a trial starts by calling the circumstantial evidence suspicious circumstances. All of the evidence has to be weighed later, but it is not proper for counsel to say that crime cannot be proved by circumstances, and the jury must disregard Mr. Bell’s statement.” After some discussion about interruptions, counsel for defendant Crockett entered an objection “to the statement by the court and the ruling of the Court where it stated that suspicious circumstances of themselves were sufficient to prove a person guilty of a crime.” There then followed further discussion about counsel and the court interrupting each other, and counsel then stated that he had no further questions.

It is not clear that counsel intended or attempted to ask the question set out above in his point, or that such a question would have been proper. The trial court obviously was of the impression that counsel was attempting to classify what it would consider to be “circumstantial evidence” as only “suspicious circumstances,” and then impress upon the jury panel that such evidence would not, as a matter of law, be sufficient to support a finding of guilt. It also appears from the form of the question set out in the point that counsel was attempting to obtain a commitment in advance that the jury panel members would not convict the defendant in certain circumstances.

No fixed and inflexible rule may be laid down which may in all cases determine the extent to which counsel may go in the examination of jurors upon voir dire. Such examination is conducted under the supervision of the trial court, and in such matters the court necessarily has considerable discretion. State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688. However, counsel may not on voir dire ask the individual jurors to commit themselves in a particular set of circumstances. State v. Wolfe, Mo., 343 S.W.2d 10, certiorari denied 366 U.S. 953, 81 S.Ct. 1912, 6 L.Ed. 1246 and 368 U.S. 907, 82 S.Ct. 188, 7 L.Ed.2d 101. As stated in State v. Heickert, Mo., 217 S.W.2d 561, 562, “[Cjounsel has no right on voir dire to cause the prospective jurors to pledge or speculate as to their action in certain contingencies which may later occur or arise during trial.” Also, the trial court was entitled to take such action as necessary to prevent an implication that competent circumstantial evidence should be classified as nothing more than “suspicious circumstances.”

There was no abuse of discretion by the action of the trial court in its control of the voir dire examination, and no prejudicial error is shown.

The final point of defendant Crockett is that the trial court “exhibited undue prejudice against defendants in several respects and did unduly influence the jury by its actions in that the court exercised a prejudice against defendant by cross-examining the State’s witnesses and brought evidence that the State did not bring out, to the extent that the court became prosecutor as evidenced by the transcript.”

Defendant Crockett says that “a prime example” of the prejudice is shown “wherein the Court congratulated the jury for reaching the correct verdict” and “wherein the Court accused one of the defendants of committing perjury.” The record discloses that after the jury had returned its verdict the court said, “I want to thank you ladies and gentlemen for your services in this case, and also I want to thank you for reaching the right result; in other words, I agree fully with your verdict.” The record also shows that subsequent to the rendition of the verdict and during the discussion between the trial court and counsel concerning punishment, the trial court said this: “I said earlier that Crockett’s record of prior convictions included the fact that he pled guilty before me five years ago and was sentenced to a four-year term for burglary in the second degree and stealing, but his record is such he ought to get maximum punishment for this offense at this time; and then I had the feeling that maybe Edwards should get less, but Edwards added to his offense by committing perjury by trying to tell this fantastic story that he told as a witness, and I think that both should get substantial punishment, * *

These comments could have had no effect on the verdict. The trial court heard the evidence and observed the witnesses, and it cannot be said that its opinions that the jury reached the correct result and that' defendant Edwards did not testify to the truth were so totally without justification that the expression of them indicated prejudice.

In addition to the page references to the above two incidents, counsel has listed in his brief under this last point 38 page references to the transcript, but with no explanation as to what there occurred, or why he considers any particular incident to demonstrate prejudice. This is not in compliance with the rules of this court. On this appeal this court is not to become an advocate for defendant and search these page references in an effort to find error. However, notwithstanding the deficiency of defendant’s presentation of his point, we have read carefully every page reference listed in the brief. On one page there was no comment or question by the court. On other pages the court ruled on objections and in doing so stated his reason for the ruling. On others, the court asked clarifying questions of the witness. On some pages more than one question was asked or comment was made by the court, and we do not know whether defendant objects to all or to one, and if the latter, which one.

In State v. James, Mo., 321 S.W.2d 698, this court pointed out that “Among the judge’s inherent powers in the administration of justice is his power to interrogate witnesses; ‘One of the natural parts of the judicial function * * * is the judge’s power and duty to put to the witnesses such additional questions as seem to him desirable to elicit the truth more fully.’ ” However, this court also pointed out that the trial judge’s discretionary power to interrogate witnesses in a criminal trial is subject to certain limitations. It was stated that the power of the judge to put questions to witnesses in a jury-tried criminal case “ ‘should be exercised with greater caution’ ” than he might exercise in a civil case or in a case tried without a jury, and that he should not engage in protracted examination which might impair the desired atmosphere of impartiality. In other words, the trial court must not assume the role of prosecutor. See also United States v. Marzano, 2d Cir., 149 F.2d 923, 926.

From our examination of the record, and particularly those pages of the transcript referred to by defendant Crockett in his brief, we cannot reach the conclusion that the trial court abused its discretion, or used improperly its power to interrogate witnesses. We find no indication of prejudice on the part of the trial court.

We have examined those portions of the record pertaining to defendant Crockett required by Supreme Court Rule 28.02 and find no error therein.

We turn now to the appeals by defendant Edwards, in iiis appeal from the judgment he makes two points; one pertaining to the voir dire examination and another pertaining to argument by counsel for the State. Our examination of the transcript convinces us that there is no merit to either contention. In view of our disposition of this case further discussion is not warranted.

The trial court overruled defendant Edwards’ motion pursuant to Supreme Court Rule 27.26 without a hearing. However, there are certain facts which are not in dispute and which we shall set forth. At the time of his appointment and at all times during the preparation for trial and during trial, defendant Edwards’ court-appointed counsel was a “special” assistant attorney general for the State of Missouri and as such he was on an annual salary which was received in monthly installments. After counsel had filed a notice of appeal on behalf of defendant Edwards he filed with/' the trial court a request that he be permit-/ ted to withdraw as counsel because of his status as a “special” assistant attorney gen-l eral, and he suggested “that a conflict of interest exists.” He was permitted to withdraw and other counsel was appointed to represent defendant Edwards on appeal. Defendant Edwards’ trial counsel at no time advised him, and it was not until after the notice of appeal was filed that defendant first learned that his trial counsel was a “special” assistant attorney general. The record affirmatively shows that the trial court had no knowledge of the status of defendant’s trial counsel until the request to withdraw was filed.

Supreme Court Rule 27.26 prior to amendment effective September 1, 1967, provided that a prisoner in custody under sentence could file a motion pursuant to that rule “at any time in the court which imposed such sentence.” The rule as amended expressly provides that a motion pursuant to that rule cannot be maintained while an appeal from the conviction and sentence is pending. Defendant Edwards’ motion was filed with and ruled by the trial court prior to September 1,1967, but the appeal was not submitted to this court until after that date. We need not rule whether the above referred to provision of Supreme Court Rule 27.26, as amended, applies to this appeal. We shall consider the contention presented in connection with the appeal from the conviction and sentence (Case No. 52,320) as an assertion of plain error affecting substantial rights within the meaning of Supreme Court Rule 27.20(c).

The attorney general is the chief legal officer of the State of Missouri, and “When required, he shall give his opinion, in writing, without fee, to * * * any circuit or prosecuting attorney upon any question of law relative to their respective offices or the discharge of their duties,” (Section 27.040), and he “shall appear on behalf of the state in the supreme court and have the management of and prosecute or defend, as the case requires, all appeals to which the state is a party other than those in which the name of the state is used as nominal plaintiff in the courts below.” (Section 27.050). In addition, Section 27.030, V.A. M.S., provides that when directed by the governor, the attorney general, or one of his assistants, shall aid any prosecuting or circuit attorney in the discharge of their respective duties in the trial courts and in the examinations before grand juries, and when so directed by the trial court, he may sign indictments in lieu of the prosecuting attorney. Section 27.020 authorizes the attorney general “to appoint such assistant attorneys general as may be necessary to properly perform the duties of his office * * *. It shall be their duty to assist the attorney general in his official duties with the power and authority under his direction to represent him in the discharge of all the duties of his office.” There is no statutory authority for “special” assistant atttorneys general. Defendant Edwards’ trial counsel was employed by the attorney general at an annual salary, and not as special counsel for an individual or single case. Why he designated himself as a “special” assistant attorney general is not shown, but regardless of this designation, according to the statute he is an assistant attorney general, there being no statutory authority for any other, who held and now holds his office at the pleasure of the attorney general.

. Defendant contends that his defense counsel, by virtue of being an assistant attorney general, without any knowledge on the part of defendant of this fact, had such a conflict of interest that he was deprived of his constitutionally guaranteed right of counsel.

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, it was held that the federal constitution guarantees to persons accused of a crime in the state courts the right to representation by counsel. It has been ruled in numerous federal cases that a defendant in a criminal trial is denied / his constitutional right to counsel if his at- ) torney represents conflicting interests with/out his knowledge and assent. See, for example, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Tucker v. United States, 9 Cir., 235 F.2d 238; Goodson v. Peyton, 4 Cir., 351 F.2d 905; Craig v. United States, 6 Cir., 217 F.2d 355; MacKenna v. Ellis, 5 Cir., 280 F.2d 592; United States ex rel. Miller v. Myers, D.C., 253 F. Supp. 55. “A showing of actual prejudice is not required; all that is necessary is a showing of a conflict.” United States ex rel. Miller v. Myers, supra at p. 57. As was said in Glasser v. United States, supra, the right “is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” See also Craig v. United States, supra, and Goodson v. Peyton, supra. In United States ex rel. Miller v. Myers, supra, it was said this way: “His right to counsel under the Constitution is more than a formality, and to allow him to be represented by an attorney with * * * conflicting interests * * * without his knowledgeable consent is little better than allowing him no lawyer at all. * * * This situation is too fraught with danger of prejudice, prejudice which the cold record might not indicate, that the mere existence of the conflict is sufficient to constitute a violation of relator’s rights whether or not it in fact influences the attorney or the outcome of the case.” Also, “It is immaterial whether such counsel was appointed by the Court or selected by the accused, in the absence of facts constituting a waiver of the right.” Craig v. United States, supra.

The question in this case is thus narrowed to whether an attorney who represents-a defendant accused of crime, and who, without the knowledge and consent of the defendant, is at the time an assistant attorney general of the State of Missouri, has by reason of these circumstances such conflicting interests to result in the denial of the constitutionally guaranteed right of counsel.

In a criminal prosecution the accused is charged by the State of Missouri, and the State is not merely a nominal plaintiff. The case is generally prosecuted by the prosecuting or circuit attorney who in the performance of this duty is acting for the State of which the attorney general is the chief legal officer. By reason of being chief legal officer of the State, and because of the potential duty of the attorney general to represent the State in a criminal case on appeal, an actual interest exists, even when the case is prosecuted by the prosecuting or circuit attorney. Most of the acts of the attorney general are carried on by and through assistant attorneys general who serve as such at the pleasure of the attorney general. Each and every assistant attorney general owes a certain allegiance to the attorney general. Therefore, an assistant attorney general who acts as defense counsel for a person accused by the State of Missouri, in his capacity as an attorney owes allegiance to both parties of the litigation.

In Goodson v. Peyton, supra, it was said that an accused’s constitutional guarantee to counsel does not mean that he is entitled to the most competent lawyer practicing in the area, or to one whose judgment as exercised during the trial may be said to have been superior when subjected to subsequent scrutiny, but “It does mean that the indigent defendant is entitled to a lawyer who can give to his client undivided loyalty and faithful service. A lawyer forced, or attempting, to serve masters with conflicting interests cannot give to either .the loyalty each deserves.” In Mac-Kenna v. Ellis, supra, court-appointed counsel for an indigent defendant had on file an application for employment with the office of the district attorney. This was held to result in a “conflict of interest.” In United States ex rel. Miller v. Myers, supra, defendant’s counsel, apparently selected and employed by defendant, represented in an unrelated civil matter the victims of the burglary of which defendant was charged without defendant’s knowledge. It was held on habeas corpus that under these circumstances, defendant “was deprived of the assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution.”

While we do not have here a question of professional ethics, but only whether the conflict of interest in the factual situation of this case resulted in denial of the constitutionally guaranteed right of an accused to counsel, we consider it appropriate to refer to a recent opinion of the Advisory Committee of the Missouri Bar. The following question was submitted to that committee : “Would it be ethical and proper for an Assistant Attorney General, * * * to accept employment on behalf of a defendant in any of the following cases: * * * (c) State criminal prosecution; * * The committee answered this specific question, “No.”

We hasten to state that in this case we do not ascribe to the assistant attorney general who was appointed and acted as defendant’s counsel anything but the highest motives. The trial judge, in ruling on the motion filed under Rule 27.26 commented favorably on counsel’s ability and performance as defense counsel, and the record unquestionably justifies that comment. However, for the reasons above set forth, and in view of the federal decisions pertaining to what constitutes a conflict of interest and the effect of such conflict on the federally guaranteed right of counsel, we are constrained to hold that in the circumstances of this case the conviction of defendant Edwards must be set aside.

The judgment in Case No. 52,320 as to defendant Nathaniel Crockett is affirmed.

The judgment in Case No. 52,320 as to Bobby Dean Edwards is reversed and the cause remanded.

The issue presented by the appeal in Case No. 52,921 is moot by reason of the ruling in Case No. 52,320, and for that reason the appeal is dismissed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Cornelius C. RICE, Appellant.
    No. 52887.
    Supreme Court of Missouri, Division No. 2.
    Oct. 9, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Richard G. Altobelli, Special Asst. Atty. Gen., St. Louis, for respondent.
    J. Whitfield Moody, J. Arnot Hill, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant. ■
   BARRETT, Commissioner.

A jury found the appellant, Cornelius Rice, Jr., “guilty of the sale of marijuana as charged in the information.” RSMo 1959, §§ 195.010(5) (17), 195.020, V.A.M.S. Originally by an indictment filed on April 8, 1966, Rice was charged with having sold 54.917 grams of marijuana to Keith Fieger on September 8, 1965. In substitute informations, one on May 18, 1966, and the other on October 3, 1966, (the latter two days prior to the trial on October 5, 1966), a prior felony conviction (RSMo 1959 Supp. § 556.280, V.A. M.S.), larceny from the person was charged. (Upon the trial of the cause the court found the prior felony conviction and fixed the appellant’s punishment at eight years’ imprisonment.) In the second amended information, October 3, 1966, it was charged that on September 8, 1965, Rice sold 54.917 grams of marijuana to Maurice Herron. On October 5, 1966, after the empaneling of the jury but before the offering of any evidence, defendant’s counsel objected that as to the change of names of the purchaser the latter information violated the defendant’s rights under the state and federal constitutions to be informed of the nature of the charge. Const. Mo. Art. I, Sec. 18, V.A.M.S. As to the amendment in both informations as to the prior offense as well as to the name of the purchaser counsel claimed that forcing him to trial on October 5, 1966, was unfair and, therefore, he said that the case should be “continued for a period of approximately two weeks for the defense to enable themselves to prepare a defense in accordance with this new information.” After this objection the prosecuting attorney withdrew the second information and elected to go to trial on the first substitute information of May 18, 1966, which only added to the original charge Rice’s prior conviction, leaving the name of the purchaser as Fieger. As to that particular amendment, the addition of the prior conviction, the case is governed by the recent narcotics case of State v. Collins, Mo., 383 S.W.2d 747, 750; “The substituted information only alleged facts making the habitual criminal statute applicable in determining the punishment and this did not charge an offense different from the original indictment, as defendant erroneously claims.” In this posture and in the particular circumstances noted hereinafter the appeal is not necessarily concerned with whether the amendment as to the name of the purchaser of the marijuana infringes the appellant’s right to be informed of the offense charged. The amendment as to the prior offense did not standing alone entitle the appellant to a continuance: “No amendment of the information or substitution of an information for an indictment as herein provided shall cause a delay of the trial unless the defendant shall satisfy the court that such amendment or substitution has made it necessary that he have additional time in which to prepare his defense.” RSMo 1959, § 545.300, V.A. M.S.; Criminal Rules 24.02, 24.03, V.A. M.R.

In brief these are the facts insofar as they relate to the substantive offense: On the afternoon of September 8, 1965, Maurice Danny Herron, an informer, called his old friend Rice on the telephone “and I told him that my friend from K. U. that I had made a purchase from (for) him the week before wanted to make another purchase of marijuana, two cans, and I asked him how much would it be; and he told me he could sell me two cans for seventy dollars, and I told him that I would meet him later on that night when the guy came in from Lawrence.” Herron then called federal narcotics agent Fieger and told him that he had made arrangements for "another purchase for him.” Herron met Fieger and agent Wilkie (who provided surveillance) at a parking lot at 31st and Florence in Kansas City, the agents there searched Herron and his automobile for narcotics and marijuana and money and Fieger and Herron proceeded to the home of Rice’s parents at 26th Street and Walrond. Her-ron sounded the horn on his automobile and when Rice came out sat in the rear seat of the automobile and Herron introduced Fie-ger as “my friend from K. U.” as the “fellow that I had made the previous purchase for.” Fieger complained of the amount of marijuana in the prior sale as well as of the price but Rice said “that’s the price stuff is in Kansas City, and you got a fair shake, I gave you a fair amount for your money.” At this point Rice complained of the traffic at 26th and Walrond and so they drove to Lockridge and Benton and parked. There Rice got out of the automobile and motioned to Herron to come to the back of the car where Fieger could not hear their conversation. But Herron walked up to the automobile and asked Fieger for the money but Fieger said he wanted to talk to Rice and “they bickered a few minutes about price. Keith (Fieger) was trying to get him to sell for $50 and he maintained the price of $70, so Keith counted out $70 and he started to hand it to Rice and Rice walked away and told me to take the money.” Fieger gave Herron $70 (marked bills) and as Herron and Rice walked away Rice handed him the $70 and they walked to a liquor store at 27th and Benton where Rice changed the twenty and ten dollar bills into bills of other denominations. Rice walked on home telling Herron “to go back to my car and get Keith and come back to his house and he would show me where the stuff was.” Herron and Fieger returned to the Rice residence, Herron “blinked my iights,” Rice “came out and pointed to a package laying over in the weeds by the corner of the garage.” Herron picked up the package, wrapped in a newspaper, and after another conversation between Fieger and Rice, the agents and Herron returned to the parking lot where the agents took charge of the package. It is obvious from this brief recitation of the testimony that the state established and the jury could reasonably find the appellant’s guilt as charged. State v. Collins, supra; State v. Taylor, Mo., 391 S.W.2d 835.

Upon the trial and in the motion for a new trial there were objections to the packages, wrappers and marijuana, the claim being that “the chain of custody * * was broken.” Independently of the exhibits there was testimony that the packages contained marijuana and that indirectly the appellant sold the packages to Fieger and it is not necessary to consider this assignment of error.

As a matter of fact the meritorious question briefed and argued is whether the court erred in refusing the appellant’s instruction A submitting as a necessary part of the law of the case entrapment. State v. Decker, 321 Mo. 1163, 1170, 14 S.W.2d 617, 620. As others have noted it is difficult to state, even envisage, an all-embracing definition and rule of entrapment, each case of necessity must be limited to its particular circumstances bearing in mind that in this field there is “a distinction between entrapment in the literal sense and unlawful entrapment.” 33 A.L.R.2d 883, 884, “Entrapment to commit offense with respect to narcotics law.” The circumstances surrounding this particular transaction have been detailed, in addition to Herron’s being an informer hoping to avoid the penitentiary the other circumstance necessary to complete the picture is the fact that Herron and the appellant “Skip” Rice were old friends, “teenagers” together. As Herron said, “a buy was made on me by an informant” and he began “to set people up” for arrest by narcotic agents receiving, he claimed, “only expenses. * * * Carfare and cab fare and things like that, gas money.” The record here permits inferences that would distinguish this case from State v. Decker, supra, in which “the scheme of manufacturing whiskey originated in the mind of Ousley” (the informer). There the record plainly supported the inference “that Ousley arranged, prepared and planted the barrel of mash. There is no doubt from defendant’s evidence that Ousley furnished the cream can, the sugar, and the worm, and lured defendant into a situation that connected him with the still. * * * He not only served as a decoy, but he made the preparations and furnished the equipment, and actually engaged in the manufacture of whiskey * * *.” (Emphasis added.) And in these circumstances the court erred in not instructing the jury as a part of the law of the case on entrapment. Upon this record a jury could find that Herron was, strictly speaking, an informer or decoy, both he and Fieger said that the “idea” of calling Rice originated with Herron and, of course, there had been a prior “buy” from Rice. The mere fact that Herron and Rice had been teenagers together, supposed friends, is only a circumstance bearing more on credibility than substantive law — in State v. Varnon, Mo., 174 S.W.2d 146, 147, the informer (Creacy) “testified he was a friend of appellant’s and thought he could make a buy on account of the friendship.” Here, among other factors, the jury could find from Rice’s conduct a prior course of dealing, a design and willingness to make this particular sale as “ ‘evinced by ready complaisance.’ ” United States v. Perkins, 7 Cir., 190 F.2d 49, 53. This record is distinguishable from that in the first Taylor case, State v. Taylor, Mo., 375 S.W.2d 58, 61, in that there “(f) rom the evidence of entrapment favorable to defendant the jury could have found that the narcotics agent did not have reasonable cause to suspect that defendant was an actual or potential violator of the narcotics laws; that defendant did not have a predisposition or criminal intent to violate these laws; that Snokhaus’ [agent] actions were not those of an enforcement officer merely offering to one who was willing and waiting and already engaged in the illicit traffic, an opportunity to commit an offense. The jury had a right to find that the government agent initiated the idea of purchasing the narcotics; that the crime was the ‘product of the creative activity’ of Snok-haus, that the intention to commit this crime did not originate in the mind of defendant but was planted there by the agent, who, through misrepresentation and deceit, imposition, persistent and repeated solicitation, inducement and promises of money consideration to one in reduced financial circumstances, finally engineered defendant’s participation, in criminal activity which but for the pressures applied would never have been undertaken by him.” The Taylor case on its particular facts is but illustrative of the corollary of the general rule. 33 A.L.R.2d 1. c. 890. While not determinative (State v. Wright, 352 Mo. 66, 74-75, 175 S.W.2d 866, 871-872), the defendant in this case did not testify and offered no evidence, (see 61 A.L.R.2d 677 “Availability of defense of entrapment where accused denies participating at all in offense”) and, of course had the court instructed on' the subject of entrapment there would have been no possibility of prejudicial error. The court’s discussion of the subject of entrapment in Kansas City v. Martin, Mo.App., 369 S.W.2d 602, was beside the point for the reason stated in the opinion “No allegation of the error is contained in defendant’s motion for a new trial. Consequently she has waived it.”

■Fóf'the reasons indicated in this particular case the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOLMAN, Judge.

text:
    James L. WRIGHT, (Plaintiff) Appellant, v. HABCO, INC., (Defendant) Respondent.
    No. 52680.
    Supreme Court of Missouri, Division No. 1.
    Oct. 9, 1967.
    Gray & Sommers, James E. Heckel, St. Louis, for plaintiff (appellant).
    Evans & Dixon, William Wallace Evans, St. Louis, for respondent.
   HOLMAN, Judge.

In this action plaintiff sought to recover damages in the sum of $167,000 for personal injuries he sustained in a fall from a scaffold while working in defendant’s building. After the facts had been fully developed by admissions, interrogatories, and depositions the defendant filed a motion for summary judgment based upon the contention that plaintiff was an employee, or borrowed employee, of defendant and hence his exclusive remedy against defendant was under the Missouri Workmen’s Compensation Law. The trial court sustained the motion and entered a judgment in favor of defendant. Plaintiff has appealed.

Plaintiff was employed by Manpower, Inc., on January 2, 1964, and continued to work for it until March 5, 1964, the date of his injury. Manpower, Inc. was engaged in the business of furnishing workmen to its customers, usually on a temporary' basis. In this instance Manpower paid plaintiff the minimum rate of $1.25 an hour, and charged its customers for whom he worked at the rate of $1.97 per hour. From the amount collected, in excess of the amount paid plaintiff, Manpower paid certain expenses such as workmen’s compensation and unemployment compensation insurance. Also included in that amount was a commission for Manpower representing its operating expenses and profit. Manpower withheld from plaintiff’s wages the required amount for social security, income, and earnings taxes.

Habco is a real estate holding company which owns and leases real estate. The building where plaintiff was injured was purchased by Habco in June 1963. It had been vacant for an extended period of time and was in need of extensive cleaning and renovation before it could be used by a new tenant. Defendant employed Alfred Johnson to supervise the renovation. It also employed Fred Gildehaus, a carpenter. Both of these men were familiar with the building as they had been employees of the previous owner.

On January 20, 1964, plaintiff and one John Owen were sent out by Manpower to work for defendant. Plaintiff worked at cleaning up the building from that time until the time of his injury. Manpower furnished no equipment but merely instructed plaintiff to report to Mr. Johnson. It is undisputed that Mr. Johnson gave plaintiff directions as to the work he was to perform. Plaintiff testified that Mr. Johnson would tell them each morning what he wanted them to do that day; that Mr. Johnson was his “boss” on tha.t job and he had no other boss. At the time of his injury plaintiff was working on a scaffold removing conduit pipes from one of the ceilings in the building. After starting to work in the defendant’s building plaintiff did not report to the Manpower office except after work on Friday afternoons when he received his wages for the week.

It appears from the interrogatories answered by defendant, which were read in evidence, that defendant did not file a notice of plaintiff’s accident with the Division of Workmen’s Compensation, and that neither it nor its insurer made any payment of workmen’s compensation or medical expenses to plaintiff; that Manpower had withheld social security and income tax payments from plaintiff’s paycheck and that such had not been withheld by defendant. It was agreed that plaintiff had filed a claim under the Workmen’s Compensation Law against Manpower and that in its answer Manpower admitted that at the time of the accident it was the employer of plaintiff; the evidence also showed that defendant had filed an election to accept the workmen’s compensation law effective October 10, 1962, and that plaintiff had never rejected that law.

Harry M. Baumstark, the president and chief stockholder of defendant, stated in his deposition that he did not consider plaintiff an employee of Habco but considered him an employee of Manpower. The branch manager of Manpower also testified that when they sent employees out to work for customers they expected the customer to use the employee in the classification of work for which he was obtained. It also appeared that in accepting the employees the customer signed an agreement containing certain conditions, including a provision that the customer would not employ the person furnished to him by Manpower for a period of at least 90 days following the completion of the work being performed.

Civil Rule 74.04(h), V.A.M.R. provides that in no case shall a summary judgment “be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.”

The principal question presented upon this appeal is whether it may be said as a matter of law that plaintiff, at the time of his injury, was an employee of ffabco within the meaning of the Workmen’s Compensation Law. See Chapter 287 (unless otherwise specified, all statutory citations are to RSMo 1959, V.A.M.S.). If he was such an employee his exclusive remedy against defendant is under the compensation law and he is precluded from maintaining an action for damages such as the one here involved. §'287.120.

In this case there is little, if any, dispute concerning the essential facts. Defendant had elected to accept the Workmen’s Compensation Law and plaintiff had never rejected that law. Plaintiff was in the general employment of Manpower. He had been employed with the understanding that he would work for Manpower’s customers. For several weeks before his injury he had been working for defendant under the exclusive directions of defendant’s foreman.

For reasons hereinafter discussed we have concluded as a matter of law that plaintiff was an employee of defendant at the time he was injured; that his exclusive remedy was under the Compensation Law and hence the trial court did not err in entering a summary judgment in favor of defendant. We are supported in our conclusion by the following cases: Patton v. Patton, Mo., 308 S.W.2d 739; Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 162 S.W.2d 628; McFarland v. Dixie Machinery & Equipment Co., 348 Mo. 341, 153 S.W.2d 67, 136 A.L.R. 516; Daniels v. MacGregor Co., 2 Ohio St.2d 89, 206 N.E. 2d 554; Chickachop v. Manpower, Inc., 84 N.J.Super. 129, 201 A.2d 90, and St. Claire v. Minnesota Harbor Service, Inc., D.C., 211 F.Supp. 521.

As stated in. the Ellegood case, “the relation of employer and employee exists as between a special employer to whom an employee is loaned and said employee whenever the following facts concur: (a) consent on the part of the employee to work for the special employer; (b) actual entry by the employee upon the work of and for the special master pursuant to an express or implied contract so to do; (c) power of the special employer to control the details of the work to be performed and to determine how the work shall be done and whether it shall stop or continue.” 162 S.W.2d l.c. 633.

In considering those requirements as applied to the case before us we think it is quite clear that plaintiff consented to work for defendant and that such was pursuant to an implied contract between them. In this case plaintiff knew when he was hired by Manpower that all of his work would actually be performed for various customers of his general employer. The very fact that he entered into an employment arrangement of that nature would constitute a general consent to work for special employers such as defendant. Also, plaintiff had actually entered upon that work and had performed same under the exclusive direction of defendant’s foreman for several weeks before he was injured. Unquestionably, defendant had the power to control the details of the work being performed by plaintiff and had actually exercised that control for several weeks.

The Daniels, Chickachop, and St. Claire cases, supra, are of special interest because they all involve the same general employer (Manpower) as in the case at bar, and the factual situations described in those cases were substantially the same as in the instant case. In each of those cases it was held that the plaintiff was the employee of the customer or special employer; that his remedy was under the Workmen’s Compensation Act, and that he could not maintain a common law action for damages against his special employer. We agree with those decisions.

Plaintiff contends that the trial court erred in entering a summary judgment. He says that there was an issue of fact as to whether defendant had exclusive control over the work performed by plaintiff and as to whether there was an express or implied contract between plaintiff and defendant to engage in the work. It is true, as plaintiff contends, that the agreement between Manpower and defendant contained certain restrictions. Defendant was expected to use Manpower employees in the type of work for which they were requested. This was because a different charge is made for other work classifications. Such employees were not to operate machinery or automotive equipment without the consent of Manpower. That is understandable because such work involved questions concerning insurance, chauffeur’s licenses, etc. There were restrictions on the handling of cash by such employees, the reason for which is obvious. The customers also agreed not to employ Manpower workmen for 90 days following the completion of the work done for the customer. That provision was undoubtedly necessary in order to keep customers from obtaining Manpower’s better workmen by hiring them directly as regular permanent employees.

The foregoing restrictions would have no effect upon the right of defendant to control the work in which plaintiff was engaged. He was sent to defendant’s building to work as a laborer. The only direction given him by Manpower was to report to defendant for work. Defendant’s foreman was his “boss” in doing that work. The evidence makes it clear that plaintiff consented to work for defendant and actually performed the work under the sole direction of defendant’s foreman. We are unable to find any factual issue which should have been presented to a jury.

In support of his contentions plaintiff has cited the Ellegood and McFarland cases which we think support the trial court’s action. He has also cited Scherer v. Bryant, 273 Mo. 596, 201 S.W. 900, Schepp v. Mid City Trucking Co., Mo.App., 291 S.W.2d 633, and Evans v. Farmers Mutual Hail Ins. Co., 240 Mo.App. 748, 217 S.W.2d 705. In Scherer the plaintiff was an employee of the Hodge Company which had been employed to repair some of defendant’s engines. He was injured and sued defendants alleging that their engineers were negligent. Defendants contended that the engineers had been loaned to plaintiff’s employer. It was held that there was a jury question as to defendant’s liability since it did not appear that the Hodge Company had authority to direct the engineers as to the manner or method of running the engines. This case does not support plaintiff.

Schepp was a workmen’s compensation case which involved the question of the compensation liability of the general employer. Plaintiff was a truck driver and defendant had furnished (leased) plaintiff and a tractor to a trucking company (PIE) for a day. It was held that defendant and not PIE was plaintiff’s employer under the Workmen’s Compensation Law. The court, in arriving at that conclusion, gave considerable weight to the fact that (1) the arrangement was only for a day, (2) plaintiff and the tractor were furnished as a unit and it did not appear that defendant had relinquished complete control, and (3) defendant had made certain significant admissions against interest. Those factors distinguish the Schepp case from the case at bar.

Evans was also a workmen’s compensation case. Plaintiff was an insurance adjuster employed by a Missouri company. He had been loaned temporarily to an Iowa insurance company and was injured while working for it. The arrangement was that the Missouri company would pay plaintiff’s salary and expenses and bill the Iowa company for that amount, plus some additional amount for its profit. The claim was filed against both companies, but the commission found that the Missouri company was the sole employer and the court of appeals affirmed. The court ruled that the Missouri company did not surrender control of plaintiff and that there was no evidence that plaintiff consented to a change of employers. It may be that the Evans case is distinguishable from the instant case, but the facts are sufficiently similar to permit a conclusion that it supports the contentions of plaintiff. To the extent that it may be so construed, we think it is unsound and should no longer be followed.

Plaintiff also contends that his claim agáinst defendant would not be governed by the compensation law because of the exclusionary provisions of § 287.-040(3), which reads as follows: “The provisions of this section shall not apply to the owner of premises upon which improvements are being erected, demolished, altered or repaired by an independent contractor but such independent contractor shall be deemed to be the employer of the employees of his subcontractors and their subcontractors when employed on or about the premises where the principal contractor is doing work.” (Italics ours.) He says that Manpower was an independent contractor engaged to clean up defendant’s building. That contention is based upon an erroneous factual premise and is without merit. There is no evidence to support a finding that Manpower contracted to clean defendant’s building. It merely furnished two laborers to do any type of general labor defendant might direct them to do. In that situation Manpower was not an independent contractor and § 287.-040(3) has no application to this case.

As we have heretofore stated, the trial court did not err in entering a summary judgment in favor of defendant.

Judgment affirmed.

HENLEY, P. J., and SEILER, J., concur.

STORCKMAN, J., not sitting.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Doris SUMMERVILLE, Appellant.
    No. 52886.
    Supreme Court of Missouri, Division No. 2.
    Oct. 9, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Joseph S. Boland, Special Asst. Atty. Gen., Columbia, Attorneys for Respondent.
    Shaw, Hanks & Bornschein, by Charles M. Shaw, Clayton, Attorney for Appellant.
   PRITCHARD, Commissioner.

Appellant seeks reversal of her conviction and sentence of five years’ imprisonment for robbery in the first degree for the sole reasons that the “credibility of witnesses” instruction was error because it singled her out for a comment on her credibility; and that the same instruction contained an erroneous “Falsus in uno, falsus in omnibus” paragraph.

The objected to Instruction No. 6 is:

“You are further instructed that you are the sole judges of the credibility of the witnesses and of the weight to be given their testimony. In determining such credibility and weight you may take into consideration the demeanor of the witness, his or her manner on the stand, his or her interest, if any in the result of the trial, his or her relation to or feeling towards the defendant or any witness sworn in the case, and the probability or improbability of his or her statements, as well as all the facts and circumstances given in evidence.
“In this connection you are further instructed that if you believe that any witness has knowingly sworn falsely to any fact or facts material to the issues in this case, then you must reject such portion of the testimony as you believe to be false, if any, and you are at liberty to reject all other portions of such witness’ testimony.”

First cited is State v. Pollard, 174 Mo. 607, 74 S.W. 969. In that case in an instruction requested by appellant the jury was instructed that in determining the degree of credit to be given the evidence of prosecutrix in regard to the alleged defilement, it was competent to consider her conduct at the time thereof, the length of time thereafter without making complaint (and other facts). It was held that this instruction was properly refused because it singled out one witness and particular facts applicable to her testimony, “ * * * [I]t is not in accord with the well-established rule, in a case like the one before us, to call special attention to a witness, and the particular facts to consider in connection with her testimony.” 74 S.W. 971. The Pollard case is inapplicable in that a different instruction than here given was involved.

In the next cited case of State v. Turner, Mo., 320 S.W.2d 579, the there attacked instruction (on similar grounds as here) had phraseology similar to the above Instruction No. 6: “his or her relation to or feeling towards the defendant or any sworn witness testifying in the case.” It was there said, “To a great extent the giving of instructions on the credibility of witnesses lies within the discretion of the trial court. State v. Hart, 331 Mo. 650, 56 S.W.2d 592”; and it was held after discussion of the propriety of these types of instructions, “The phrase complained of here included not only a ‘relation to or feeling towards’ the defendant, but also a relation to or feeling towards ‘any sworn witness testifying in the case * * *.’ The instruction would be equally applicable to the testimony of Perry and of Helen Floyd; it might also apply to the testimony of all policemen if the jury believed that they had any ‘relation to or feeling towards’ the defendant or any of the State’s witnesses, whether adverse or favorable. We conclude that the instruction did not unfairly single out defendant’s witnesses and that it was not erroneous.” 320 S.W.2d 585 [11 — 14]. The Turner case rules appellant’s case adversely to her. Appellant testified to alibi facts that she was at another place than the robbed filling station in question, and had loaned her car to another at that time. Five other witnesses (all stated by appellant to be colored, as she is), Dorothy Rice, Ruth Lyons, Peggy West, Jacqueline Rice, and Isaac Briggs, all gave testimony tending to corroborate that of appellant. Contrarily, Raymond Tippett, a white man, service station attendant and victim of the robbery, identified appellant as one who participated in the robbery and who was two days later driving the same automobile used in the robbery. Police officer Donald H. Hays, a white man, took the report of the robbery and broadcast a description of the vehicle and occupants. He saw appellant at the police station. Police officer Gerald Mueller, a white man, received a call and went to the filling station and talked to Tippett. He then drove to a parking lot nearby, saw the described car, and arrested appellant when she got into it. Under the Turner case, supra, the instruction on credibility of witnesses referred to all of these witnesses equally as to the relationship with and feeling towards each other as being “sworn witnesses testifying in the case.” It did not unduly single out appellant, and it was not error that the State was not specified as a party. See also State v. Garrett, 276 Mo. 302, 207 S.W. 784, 786. Since the instruction referred to all witnesses equally, the fact that appellant and all her witnesses were Negroes and the State’s witnesses were all white is not “extremely important in the case at hand” as contended by appellant.

As to the second paragraph of the instruction, appellant cites 4 A.L.R.2d 1088, where the use of “Falsus in uno, falsus in omnibus” clauses in credibility of witnesses instructions is criticized. The rationale of the criticism is there stated, “For notwithstanding the general obligation placed on the jury to determine the weight and credibility of testimony the court in effect states that they ‘may’ ‘disregard’ or are at ‘liberty’ (or have the ‘right’ or are ‘entitled’) to ‘disregard’ * * * the whole of the testimony of any witness on finding that he is intentionally false in any material particular. That presentation appears to lay down for the jury a general rule and then an exception to it. No one can assume that a jury will rightly understand such instructions, especially since the courts themselves do not agree as to their meaning.” There is obviously some merit in the logic of the foregoing quote, “A so-called falsus in uno, falsus in omnibus instruction which merely authorizes the jurors to disregard testimony which they believe to be false are useless declarations of the obvious, but they are not prejudicially erroneous.” Rossomanno v. Laclede Cab Company, Mo., 328 S.W.2d 677, 680 [3]. These types of instructions have long been approved in this state in criminal cases, where the evidence justifies such submission. Thus, it has often been held that a falsus in uno falsus in omnibus instruction is warranted where the evidence conflicts as to the whereabouts of a defendant at the time of the commission of the crime, as is the case here. State v. Gonder, Mo., 289 S.W. 645, 646 [2, 3]; State v. Tighe, Mo., 289 S.W. 829, 830 [2,3]; State v. Abbott, Mo., 245 S.W.2d 876, 881 [11], See also State v. Fingers, Mo., 357 S.W.2d 89, 90, and State v. Jones, Mo., 365 S.W.2d 508, 517 [20].

The information here fairly charges appellant with taking money, $112.83, the property of Hudson Van Oil Company, in the lawful care and custody of Raymond Tippett, by putting him in fear of immediate injury to his person. (The evidence shows that appellant’s accomplices pointed a revolver and a sawed-off shotgun towards Tippett while appellant went through his pockets.) The verdict is responsive to the charge, and the sentence of five years in the custody of the Department of Corrections is within the permissible limits. Allo-cution was granted prior to sentence. The requirements of Supreme Court Rule 28.02, V.A.M.R., were followed.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.