author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Jasper Lee DAVIS, Jr., Appellant.
    No. 51527.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied March 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Edward P. McSweeney, Sp. Asst. Atty. Gen., Qayton, for respondent.
    Norman S. London, St. Louis, for appellant.
   EAGER, Presiding Judge.

Defendant was found guilty by a jury of first degree murder and the jury imposed a life sentence. The charge arose from an indictment. For some months prior to trial and at the trial defendant was represented by an attorney privately employed; he had previously had other counsel, presumably appointed, who was permitted to withdraw. Counsel filed a motion for new trial containing 47 assignments of supposed error, but has chosen not to brief the case here. We shall consider on the merits those which are sufficient under Criminal Rule 27.20. Many of these do not set forth with particularity any specific grounds or causes for a new trial and they will be disregarded; this includes assignments 1-10, inclusive, and 45. We have explained so many times the requirements of this rule that we shall not lengthen this opinion further by quoting or describing these assignments. After the overruling of that motion defendant was permitted to appeal as a poor person. Where assignments of a like nature may be discussed as a group, we shall follow that method.

The first group of appropriate assignments contests the sufficiency of the evidence to establish (1) first degree murder, and (2) second degree murder. It will therefore be necessary to recite the evidence in some detail.

Six or seven students of St. Louis University had attended a night baseball game at Busch Stadium in St. Louis on April 22, 1964; they sat in two groups, but met after the game and waited a short time for the crowd to thin out. These boys were approximately 20 years of age, some a little more, some less. One John Lough was to furnish transportation home with his father’s car, and they all walked to a parking lot on Grand Boulevard about two blocks from the Stadium. After they drove on to Grand and proceeded a very short distance in bumper to bumper traffic, Lough found it necessary to get out to urinate. One of the others took the wheel, assuming that in such traffic Lough would overtake them. He did not come back immediately and, after proceeding a short distance, the boys turned and drove back; two or three got out briefly to look for him, but soon returned and all drove south again. At the Washington intersection James Ready, the decedent in this case, and James Richard Caccamo got out again and started walking back north on the east side of Grand to look for Lough. From this point on we confine our recital to the specific circumstances of this crime, and the facts which follow are those which the jury could reasonably have found. These two boys were wearing khaki trousers, sport shirts, St. Louis University jackets and no hats. They crossed Franklin and were approaching Bell, proceeding along a space where there was broken sidewalk, an old building and a vacant lot. They saw a group of Negro youths coming toward them, probably 12 or 15, and they moved over to the inside of the walk, walking with their heads inclined downward ; they said nothing and they had nothing in their hands. (The racial designations of the different participants are noted throughout the transcript, and were in some particulars material.) As the Negro group approached Ready and Caccamo, one of the group, either Johnny Mason or a boy named Simmons, said “Let’s off these white dudes,” which, as translated, means to hit them or beat them up. As Johnny Mason reached Caccamo, he struck the latter on the side of the face or head with his fist knocking him down, and two others of the group kicked the fallen man in the head as he lay there. Ready, in the meantime, had walked or run ahead a very short distance, but he looked back, saw what had gone on, and came back “swinging,” as one or more described the scene. He obviously attacked Mason with his fists; some of the others had moved away, but defendant Davis remained very close to the combatants and was hit by a hand or fist, presumably Ready’s. Davis, who testified, did not know himself whether the blow was intended for him or not, but he said that he was knocked down; another member of the Negro group, Calhoun, testified that Davis was struck when Mason “weaved” and thus avoided a blow. Davis, while he was down or partially down, pulled his knife from his jacket pocket, opened it with one hand and thumb, arose, and after being on his feet (as he described it) for two or three seconds* stabbed Ready in the chest severing a coronary artery. Mason, who testified during the State’s case but not enthusiastically, stated that he saw Davis (defendant) fall and then saw him jump up and start swinging at Ready, striking him in the chest area, but that he saw nothing in defendant’s hand at the time. Calhoun, another of the group, saw Davis take the knife from his pocket, saw the knife in his hand, and saw that he (defendant) “brung it up and struck the boy somewhere in his chest.” Davis himself testified that Ready (supposedly somewhat larger than he was, but totally unarmed) had started towards him and that he thought that Ready was going to “harm” him or “kill” him. No one else testified to similar facts, although three of his group testified for the State. After the stabbing Davis became scared and ran, pursuing a devious course to his home and dropping the knife on the way. It is thus seen that the killing was admitted by the defendant in his trial testimony. Cac-camo testified that he and Ready did not touch any of the other group as they passed.

Caccamo eventually got to his feet, saw Ready staggering, saw him fall, tried to assist him and saw him take two deep “gasps of air,” and then called for help. He was carried across the street to the Veterans’ Hospital where he was pronounced dead. There was much testimony concerning the activities of various members of this group on that evening and prior to this occurrence, but nothing of sufficient materiality was developed to require discussion. There were four character witnesses for defendant. Additional phases of the evidence will be referred to as necessary in discussing specific assignments of error.

We first consider the sufficiency of the evidence to sustain a conviction for first degree murder. The basic statutory requirements are willfulness, deliberation and premeditation. Section 559.010, RSMo 1959, V.A.M.S. (All statutory references will be to that revision.) The distinction between first and second degree murder lies in the existence or nonexistence of deliberation. State v. Goodwin, Mo., 352 S.W.2d 614. The willfulness, deliberation and premeditation required for a conviction of first degree murder may all be inferred from and established by the circumstances attending a homicide. State v. Thompson, Mo., 363 S.W.2d 711; State v. McCracken, 341 Mo. 697, 108 S.W.2d 372; State v. Small, Mo., 344 S.W.2d 49; State v. Johnson, 362 Mo. 833, 245 S.W.2d 43; State v. Williams, Mo., 369 S.W.2d 408. Thus, while a presumption of second degree murder arises from an intentional killing with a deadly weapon, used upon a vital part of the body, with nothing more appearing, State v. Small, supra; State v. Goodwin, supra; State v. McCracken, supra, the further element of deliberation may be inferred from the circumstances. Small, McCracken, Thompson. Malice is, of course, presumed or implied by the law in every unlawful killing. State v. Dunn, 18 Mo. 419; State v. Holme, 54 Mo. 153; State v. Johnson, 362 Mo. 833, 245 S.W.2d 43. The term “deliberation” has been defined many times and its meaning has not been changed over the years. In State v. Holme, 54 Mo. 153, an instruction was approved which told the jury that: “ * * * if the party killing had time to think, and did intend to kill, for a moment as well as an hour or a day, then such killing is deliberate, willful, and premeditated killing, * * And as early as State v. Dunn, 18 Mo. 419, the Court said, loc. cit. 424: “If the party killing had time to think, and did intend to kill, for a minute as well as an hour or a day, it is a deliberate, wilful and premeditated killing, constituting murder in the first degree.” Many of the cases require that the act, in order to constitute a deliberate killing, must be done in the “cool of the blood,” but require no extended time for the deliberation. State v. Davis, 226 Mo. 493, 126 S.W. 470; State v. Bobbst, 269 Mo. 214, 190 S.W. 257; State v. Mc-Cracken, supra; State v. Small, Mo., 344 S.W.2d49; State v. Jones, 64 Mo. 391. In State v. Davis, supra, the Court approved the following as a correct definition of deliberation, 126 S.W. loc. cit. 477: “ * * * ‘it does not mean brooded over or reflected upon for a week or a day or an hour; but it means a conscious purpose to kill, formed in a cool state of blood, and not under violent passion suddenly aroused by some real or supposed grievance.’ ” In State v. McDaniel, 94 Mo. 301, 7 S.W. 634, the Court said at 7 S.W., loe. cit. 636, that deliberation : “ * * * is defined to ‘mean in a cool state of the blood, as opposed to a heated state; and in deliberating there need be no appreciable space of time between the intention to kill and the act of killing. They may be as instantaneous as successive thoughts of the mind.’ The terms cool and heated state of the blood are not used in any technical sense. They indicate clearly enough that the killing must have been done, not from passion, but from the ‘free act of the will,’ and if so done, the act was done with deliberation, though the act had not been brooded over or reflected upon.” The matter is extensively discussed in State v. Speyer, 207 Mo. 540, 106 S.W. 505, 14 L.R.A.,N.S., 836. The case of State v. Small, Mo., 344 S.W.2d 49, is rather close to the present case on the essential situation, for there the defendant, convicted of first degree murder, had apparently considered the act of killing only long enough to pick up a single-barreled shotgun, cock it and shoot, plus possibly the time required to put in a shell; and there was no obvious or real reason for the act. Under the authorities it appears that a finding of deliberation depends not so much upon the time element as it does upon an inference, reasonably drawn from the evidence, that the defendant performed the act in a cool and deliberate state of mind.

Here, this defendant needlessly stuck closely to a fistic encounter between two other persons, was struck by a hand or fist (perhaps by accident) and knocked down. He immediately, and while still down, drew and opened his knife, then got to his feet with the opened knife, remained standing (according to his own testimony) for two or three seconds, and plunged the knife into the chest of James Ready who, all this time, was fighting Mason. The matter of self-defense is a wholly separate issue. The jury obviously disbelieved that defense, as well it might. Under the authorities, defendant had time to deliberate his act in “the cool of the blood” and to determine, as he did, to stab Ready; and the jury could reasonably so find. The evidence was sufficient to convict him of murder in the first degree. It is entirely obvious, this being true, that the evidence was also sufficient to convict him of second degree murder, and that the choice was up to the jury. This disposes of eight assignments of the motion for new trial.

A rather pointless assignment is made to supposed error in not excusing 49 of 50 persons called on the voir dire, because they had “previous knowledge” of the case, and were therefore unable to try the issues impartially. These persons were not challenged for cause. Practically all of the people called on the panel had read of the killing in the newspapers or had seen something concerning it on television. The prosecutor and the Court, as well as defense counsel, were most assiduous in searching out those who had formed opinions which might influence them; all such persons were immediately excused, generally, if not always, upon motion of the State. Defense counsel passed each separate panel of the voir dire for cause, and just before the trial proper began entered a sort of “shot-gun” objection to all but one member of the then panel because all such persons had read or heard of the case. This is certainly no valid ground of objection per se, and the assignment is of no merit whatever. Section 546.150; State v. Spica, Mo., 389 S.W.2d 35; State v. Thompson, Mo., 396 S.W.2d 697, opinion adopted December 13, 1965. Under these circumstances, it was wholly inappropriate to bring here in the transcript approximately 190 pages of voir dire examination at the cost of the State.

Johnny Mason was produced as a State’s witness. He testified that one of the white boys “brushed or bumped” him, that he pushed him off, and he fell; he then testified that he didn’t “think” he hit the boy and finally said that he did not. The State’s attorney then asked leave to cross-examine the witness from the notes of his testimony before the grand jury, and leave was granted. By way of objection counsel for defendant merely said, “It is the State’s witness.” An assignment of error has been made to the permitting of this cross-examination. We note here that no objection was made on the basis of grand jury secrecy or privilege. In brief, questions and answers were read to Mason to the effect that he hit the boy with his fist and that he fell. Mason then testified that he recalled the questions and answers, that he gave the answers, and “that is what happened.” The cross-examination of a reluctant witness is a matter resting very largely in the discretion of the trial court. Counsel for defendant has stated in his motion that the witness was not “hostile.” That is a relative term, and it clearly appeared here that the witness was not telling the facts previously testified to; the Court was shown the grand jury notes before he ruled. We hold that the matter was one within the discretion of the Court. While such prior testimony is generally admissible merely as impeachment, Mason’s final admission that the facts as so stated were true, made those notes substantive testimony. See the distinction and discussion generally in State v. Kinne, Mo., 372 S.W.2d 62, and note that the principal opinion there was not adopted as the opinion of the Court. The trial court may infer from the testimony and conduct of the witness an effort to suppress the truth. See, generally, Tripp v. United States (CA 10), 295 F.2d 418, 424, 425; State v. Patton, 255 Mo. 245, 164 S.W. 223; State v. Taylor, Mo., 324 S.W.2d 643, 76 A.L.R.2d 671; State v. Bell, 359 Mo. 785, 223 S.W. 2d 469; Mooney v. Terminal R. Ass’n of St. Louis, 352 Mo. 245, 176 S.W.2d 605.

In two separate assignments counsel asserts that error was committed in admitting testimony that defendant had previously been seen with the knife in question, once earlier on the same evening (witness Mason), and also during that afternoon (witness Calhoun). The objections now are that the evidence was totally irrelevant, and that it was prejudicial. If such evidence is closely connected with the crime and tends to establish or explain the act, it is material and admissible; and if sufficiently material, it is not to be excluded merely because it may be prejudicial. In one part of this evidence Mason testified that the defendant was showing the knife and “popping” it open; in the other the knife was described, the blade being three or four inches long and the point sharp. This evidence was definitely of sufficient materiality to be admissible; for one thing, it bore directly on the deadly nature of the knife as a weapon. Particularly is this true in view of defendant’s own testimony that he seized the knife from his pocket and opened it on the first attempt with one thumb. On the question generally, see State v. Dill, Mo., 282 S.W.2d 456, 463; State v. Taylor, Mo., 324 S.W.2d 643, 76 A.L.R.2d 671. The contention is denied.

Complaint is made of the use by the State’s attorney of the use of the word “assault” in a comment during the cross-examination of Mason. After a colloquy between the Court and counsel all the relief that defendant’s counsel finally requested was granted.

The Court declined to permit defense counsel to question the witness Mason upon cross-examination concerning any “sentence” he had received in the Juvenile Court in connection with his participation in these events. This is now made an assignment of error, with the suggestion that such evidence was admissible to show the witness’ interest. Counsel apparently feels that for this purpose the general rule of nondisclosure of juvenile proceedings is inapplicable. The witness was 17 years of age at the time of trial, but 16 at the time of these occurrences. No offer of proof was made except an offer to show that the witness was now living at, and was brought back from, Boonville, presumably with the inference that he was confined at the Training School for Boys there. Counsel for defendant produced no authority and the Court sustained all such objections. While the statutes have been changed somewhat since 1959, the case of State v. Tolias, Mo., 326 S.W.2d 329, expressly ruled that all such evidence was inadmissible. Our present § 211.271 provides that no adjudication upon the status of a juvenile “shall be deemed a conviction * We are inclined to the view that such evidence was inadmissible, but we rule that there was no error because no offer of proof was made on the one material element, namely, the disposition of Mason’s case, and because, in any event, we consider the ruling as nonprejudicial to defendant. The acts of Mason had been fully shown, and he admitted that he had “lied” to the police when arrested and that this was not his first “involvement” with the police; he was also contradicted by his testimony before the grand jury. His juvenile record would have added nothing substantial to this array.

Certain hospital records and the brief testimony of a hospital physician were received for the purpose of showing the condition of James Caccamo after the attack upon him. Error is now assigned, upon the ground that the evidence was irrelevant in that the present case does not involve any offense against Caccamo; and that the evidence was prejudicial. This case did definitely involve the attack upon Caccamo as an integral part of the whole incident, and his condition immediately following the attack was clearly admissible; this, to confirm the fact that he had been struck, if for no other reason. See State v. Bell, 359 Mo. 785, 223 S.W.2d 469, 471. No objection was made at any time to the direct testimony concerning the striking and kicking of Caccamo, and this evidence of his condition immediately thereafter was merely incidental.

It is claimed that the admission of defendant’s question and answer statement or confession was error: (1) because it was shown that it was not voluntary; (2) because defendant had been in custody for “many hours” and had not been taken before any judge or magistrate; (3) because it shows on its face that he was not advised of his right to consult any attorney; and (4) because he had requested an attorney. Defendant was arrested rather early in the morning of April 24, 1964 (one witness stated at 5:15, defendant said later) and taken to Police Headquarters. He was questioned for a time by two detectives, and a little later Mr. Crawford, the Chief Trial Assistant to the Circuit Attorney, was called. He testified that he first saw the defendant between 7:30 and 8:30, but another witness thought that this occurred about 9:30. Mr. Crawford testified, both in the hearing outside the presence of the jury and before the jury, in substance, as follows : that he talked with defendant for a short time before the statement was begun; that he told the defendant that he did not have to make a statement; that no promises were made; that defendant made no complaints of any mistreatment and that he saw no evidence thereof; that a stenographer was called in, that she recorded the questions and answers and transcribed them, that defendant then read the statement aloud in his presence, initialled certain minor corrections and signed the statement in his presence and in the presence of two officers. The confession states that it was signed at 1:18 p. m. on April 24; it also states, by way of an affirmative answer to a question, that defendant understood that under the Constitution of Missouri he did not have to make a statement, and that any such statement could be used against him in a future trial. In the preliminary hearing Mr. Crawford also testified: that he told defendant that he could use the telephone if he wished, but that defendant felt “it would be embarrassing and that he did not want to face his parents or talk to anyone about it”; that he thought he had discussed with Davis his right to an attorney when he first talked to him, although no reference to this was included in the written statement; that he informed defendant that a statement could be used against him; that defendant did not indicate any “hesitancy about giving” the statement. Defendant testified, outside the presence of the jury, that he was arrested between 5:30 and 6:00 o’clock a. m. on April 24, that he was not taken to court until April 27, that he had no lawyer, that at Police Headquarters he was “slapped,” his head was bumped against the wall, and he was kicked on his shin, that he gave the statement three or more hours after his arrest, that he asked for a lawyer, but got no response, that they “beat” him when he “wouldn’t say I did it,” and refused to make a statement. At the conclusion of the hearing held outside the presence of the jury, the Court overruled the motion to suppress the confession and found and ruled that the statement was voluntary. This he dictated into the record, a practice which it would be well for all trial courts to follow.

Mr. Crawford testified before the jury that, prior to the taking of the question and answer statement, he did inform Davis that he was entitled to see an attorney. One of the officers present at the taking of the statement testified positively before the jury that defendant was told that he was entitled to an attorney, that he was not mistreated in any way, that he was denied nothing, that he was informed that he need not give a statement and also that anything he said could be used against him in court. The defendant testified in his own behalf before the jury. Therein he made no reference whatever to the confession or to any circumstance connected with it. The jury, therefore, had no evidence to indicate that it was involuntary, though it had the inherent right to disbelieve the State’s witnesses. Defendant, in his trial testimony, admitted the stabbing, named some of the persons with him, and testified to certain occurrences prior to the killing. He further testified: that Mason struck one of the white boys right after one Simmons said, “There are two white dudes, lets off them”; that no one had touched Mason; that he was struck by Ready and knocked down, either purposely or accidentally; that Ready and Mason were the only ones fighting ; that deceased came “towards” him and that he thought deceased was going to “hurt” him or “kill” him, so.he drew his knife and swung at him with it; that he opened the knife with one thumb “the first time” he tried, and that he had been on his feet for two or three seconds before he stabbed Ready; that when he got on his feet the knife was open and in his hand and that, in fact, the knife was open before he got up; that he got up with the opened knife. He saw two others kicking or “stomping” Caccamo, and said that he wanted to stop them at the time he was struck.

The Court, as stated, found that the confession was voluntary. The jury obviously did so, for it could hardly have found otherwise on that fact issue, upon the testimony before it. In this state of the record the confession was clearly admissible unless it can be said that it was inadmissible as a matter of law because defendant had no attorney. Some details included in the confession differed somewhat from defendant’s trial testimony; defendant stated therein that he tried to “cut” Ready, but that he “stuck” him because he had been drinking (for whatever that explanation may have been worth) ; he made no reference therein to self-defense, but said nothing which would have excluded it; other differences consist generally of matters of greater or lesser detail.

We have never held that the lack of an attorney when a defendant is interrogated and a statement is taken renders the confession invalid per se. We have in mind the cases of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, Es-cobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265, but there were additional material facts in those cases. We discussed those opinions to some extent in State v. Donnell, Mo., 387 S.W.2d 508, at loc. cit. 511. In that opinion we said in part: “In Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed. 2d 1448, it was held that mere interrogations without counsel while in custody, resulting in a confession, did not constitute a violation of defendant’s constitutional rights or render the confession involuntary, even though counsel was requested * * * There were also dissents in that case. There the Court said in part: ‘Petitioner, however, contends that a different rule should determine whether there has been a violation of right to counsel. He would have every state denial of a request to contact counsel be an infringement of the constitutional right without regard to the circumstances of the case. In the absence of any confession, plea or waiver- — or other event prejudicial to the accused- — such a doctrine would create a complete anomaly, since nothing would remain that could be corrected on new trial. Refusal by state authorities of the request to contact counsel necessarily would then be an absolute bar to conviction. On the other hand, where an event has occurred while the accused was without his counsel which fairly promises to adversely affect his chances, the doctrine suggested by petitioner would have a lesser but still devastating effect on enforcement of criminal law, for it would effectively preclude police questioning — fair as well as unfair — until the accused was afforded opportunity to call his attorney. Due process, a concept “less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights,” Betts v. Brady, 1942, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595, demands no such rule.’ ” We have held on various occasions that the mere holding of a defendant for more than twenty hours does not invalídate a confession or a judgment of conviction. State v. Keeble Mo., 399 S.W.2d 118, adopted February 14, 1966; State v. Williams, Mo., 369 S.W.2d 408; State v. Goacher, Mo., 376 S.W.2d 97; State v. King, Mo., 380 S.W.2d 370; State v. Worley, Mo., 383 S.W.2d 529; State v. Bryant, Mo., 375 S.W.2d 122, and Donnell, supra. It was shown here, without controversy, that defendant was advised that he did not have to make a statement and that any statement made could be used against him. He did not see fit to repeat before the jury his testimony that he asked for a lawyer, after the trial court had made a finding that the confession was voluntary. He was under the guidance of astute and experienced counsel at the trial. We hold that there is an absence here of any showing of prejudice from the admission of the confession, that defendant’s trial was not rendered unfair by his detention or by the lack of counsel, and that the Court did not err in admitting the confession.

Counsel complains also in his motion concerning the admission or the failure of the Court to exclude certain specific parts of the confession as follows: (1) a reference to seeing, a dice game earlier in the same evening and hearing an argument with police, in which defendant in no way participated; (2) statements indicating that Johnny Mason had lost his “straight razor” and that “they” were going along Grand in an effort to find it when they met Ready and Caccamo; and (3) a statement that the blade on defendant’s knife was about three inches long, and that he knew this because he “always measured it” with his finger; this latter statement was included in a general description of the knife, including a statement that the knife could be popped open fast, “instead of pulling it open with two hands * * Item (1), supra, referred solely to acts of other persons and could not have been prejudicial; moreover, the defendant voluntarily testified to the same matters when he was on the stand in his own behalf, upon questioning of his own counsel. Item (2) also involved another person, Johnny Mason, and the supposed loss of his razor; that statement cast no aspersions on defendant and was not prejudicial to him. It was relevant to some extent, as it showed the reason why Mason and the defendant were at this particular spot at the time of the occurrences in question. The same evidence had previously come in without objection in the testimony of Mason. Item (3), the description of defendant’s knife, was definitely material since this was the weapon with which he stabbed Ready; if that evidence was prejudicial it was nevertheless admissible.

During the cross-examination of a character witness for the defendant it was brought out that he was a very good friend of defendant; at that point counsel for defendant interrupted the proceedings by asking twice if that would affect his testimony in any way. The Court permitted an answer and counsel for defendant then said “That is all”; thereupon counsel for the State, obviously somewhat irritated, said: “Forget it.” A colloquy ensued, defendant’s counsel made motions to strike, to instruct the jury and for a mistrial, all of which were overruled. If there was anything improper in the statement defendant’s counsel brought the situation upon himself by his unseemly interruption, and we also hold that the remark was not prejudicial.

Objection is also made to a reference by the State’s counsel in final argument to the “accident” instruction as “one of the theories of the defense * ⅜ * ”; counsel for defendant now says that the instruction was an instruction of the Court, like all others, and that the remark was derogatory and prejudicial. The complete answer is that the Court gave counsel all the relief he asked.

Defendant assigns error in the giving of various verdict forms to the jury. They were not included in the transcript, but we now have certified copies. We have examined all of them and, without further lengthening this opinion, state that we find no prejudicial error, considering them as a whole.

Allegations of error have been made to the giving and refusal of certain instructions. The first is that the Court erred in instructing the jury that, in order to constitute manslaughter, the killing must have been without malice and without premeditation, whereas the killing might legally have been found to be manslaughter if either malice or premeditation was absent. The cases do not so hold. State v. Sebastian, 215 Mo. 58, 114 S.W. 522, 528; State v. Malone, 333 Mo. 594, 62 S.W.2d 909, 911; State v. Curry, Mo., 372 S.W.2d 1; State v. Dill, Mo., 282 S.W.2d 456. And we have very definitely held that malice must be absent in all manslaughter cases, State v. Davis, Mo., 328 S.W.2d 706, so defendant’s theory here is obviously unsound. Moreover, there can ordinarily be no reversible error in the giving of a manslaughter instruction where the jury has found defendant guilty of first or second degree murder. State v. McMullin, 170 Mo. 608, 71 S.W. 221; State v. Emory, Mo., 246 S.W. 950. That rule also covers the other objection to the manslaughter instruction, namely, that it created an impression that a killing in “lawful defense of the person” was different from “justifiable homicide.” We also find on the merits that no such criticism is justified; the last paragraph in the instruction expressly defined justifiable homicide as the killing of another in the lawful defense of one’s person.

Defendant makes no complaint of the first degree murder instruction under which he was found guilty. He does complain of the instruction concerning the vol-untariness of his confession, in that it did not “allow the jury to consider whether or not the failure to advise the defendant of his right to an attorney, or to provide the Defendant with an attorney” prior to the taking of his statement, constituted an element of involuntariness. That Instruction, No. 8, told the jury to consider any such statement or statements “in the light of the circumstances under which they were made” and to determine whether or not they were voluntarily made or were “procured by coercion or threats or through fear * We consider that it was wholly unnecessary, and perhaps it would have been improper, for the Court to single out and include specifically that one element, thus giving it an undue emphasis. But, in addition, the defendant himself made no reference whatever in his testimony before the jury to the confession or to the circumstances attending it; one of the officers present at the time testified not only that there was no mistreatment and no promises, but that defendant was informed that he was entitled to an attorney, as did Mr. Crawford. In this state of the evidence it would have been particularly inappropriate to emphasize the present contention with no supporting evidence before the jury. The jury was specifically told to disregard any statements of deceased if it found that they were not “voluntarily made.” The point is denied.

The Court gave, in customary form, an instruction on the presumption of innocence and reasonable doubt. Counsel complains because that instruction stated, in part, that a reasonable doubt “ought to be a substantial doubt * * * and not a mere possibility of defendant’s innocence,” contending that this is a misstatement of the law of reasonable doubt. The substance of the instruction as given has been approved time and again. State v. Turner, Mo., 320 S.W.2d 579; State v. Velanti, Mo., 331 S.W.2d 542; Staté v. Hutsel, 357 Mo. 386, 208 S.W.2d 227. The point is wholly without substance. Error is also assigned to the refusal of defendant’s proffered Instructions “B,” “C,” and “D,” dealing with the same subjects. When the Court has once fully and properly instructed on a subject or subjects, it is not error to refuse further instructions thereon. State v. Hut-sel, 357 Mo. 386, 208 S.W.2d 227; State v. Peterson, Mo., 130 S.W.2d 505. Complaint is also made of the refusal of Instruction “A,” a self-defense instruction. The Court had fully covered the question of self-defense in Instructions 4 and 6, which are not attacked. In this situation the rule just stated is applicable and there was no error.

Assignments 42, 43, 46 and 47 allege error in the overruling of defendant’s motions for a judgment of acquittal of first and second degree murder, respectively. We have covered these assignments in our ruling on the sufficiency of the evidence and the discussion therein. Another assignment is that the Court erred in failing to instruct “regarding criminal intent and intent in general.” That element was sufficiently covered in all the basic instructions. Those concerning first and second degree murder required that the act be done “willfully,” which was specifically defined to mean intentionally. In- the manslaughter instruction the word “intentionally” was specifically included. The instructions were in customary form and there was no occasion for elaborating upon the subject of intent in considering these specific, statutory crimes. See State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22.

The defendant had a fair trial and we find no prejudicial error in the record. We have also examined those matters required by Criminal Rule 28.02 and find no prejudicial error therein.

The judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. W. J. VAUGHT et al. On Exceptions of John D. Dukewits et al., Respondents.
    No. 51574.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.
    Robert L. Hyder, Wm. T. Powers, Springfield, for appellant.
    Neale, Newman, Bradshaw, Freeman & Neale, Springfield, Thom G. Field, Flavius B. Freeman, Springfield, for respondents.
   STOCKARD, Commissioner.

In this action for condemnation of land for highway purposes the jury rendered a verdict of “no damages.” The landowners’ motion for new trial was sustained and the Highway Commission has appealed. The difference between the award and that to which defendant-landowners claim they are entitled under their evidence exceeds $15,-000, and for that reason appellate jurisdiction is in this court.

The order of the trial court granting a new trial to landowners was as follows: “Now on this day it is ordered by the Court that the defendants’ motion for a new trial be and is hereby sustained for the reasons that the Court abused its discretion in allowing Commissioners Riebold and Wann to testify as witnesses and also on the grounds that the verdict is against the greater weight of the credible evidence in this cause.”

Appellant’s points on this appeal are somewhat related, and for that reason we will set all of them out at this time. They are that the trial court erred in granting a new trial because [1] “the stated ground that the Court abused its discretion in allowing Commissioners Riebold and Wann to testify as witnesses * * * is not discretionary, and the law is well settled that commissioners may be used as witnesses by either party in a condemnation case” with certain restrictions, none of which were violated ; [2] the “discretionary ground (that the verdict was against the weight of the credible evidence) depends on and is supported by the nondiscretionary ground (that the court abused its discretion in allowing Commissioners Riebold and Wann to testify) [and] the appellate courts will not assume that the trial court gave a discretionary ground for a new trial unless it is clearly stated as a separate ground and is in fact a discretionary ground; ” and [3] the respondents “did not present any substantial evidence to support the trial court’s order.” There is then added the contention that the court erred in overruling appellant’s objection to “specific testimony” of certain witnesses and refusing to strike the “entire testimony” of one witness. The inference is that without this testimony there was insufficient basis for the trial court’s ruling that the verdict was against the weight of the credible evidence.

We cannot agree that in its order the trial court gave but one ground for granting a new trial, and that a nondiscre-tionary one. The order by which a new trial is granted is “the sole and only official repository for the court’s thoughts or reasons.” Sawyer v. Winterholder, Mo., 195 S.W.2d 659; Bierman v. Langston, Mo., 304 S.W.2d 865. See also Civil Rules 75.01 and 78.01, V.A.M.R. The order in this case is in clear and unambiguous language, and it clearly sets forth two reasons or grounds, the second of which is that the verdict was against the greater weight of the credible evidence. We cannot go behind what is clearly expressed in the order, surmise as to what may or may not have motivated the order, and then conclude that what the trial court really meant to say, but did not, was that without the testimony of witnesses Riebold and Wann the verdict was against the greater weight of the credible evidence.

Appellant next contends, as we understand its third point, that even though it be determined that two separate grounds for ordering a new trial were given by the trial court in its order, it abused its discretion in ordering a new trial on the discretionary ground that the verdict of “no damages” was against the greater weight of the credible evidence because respondents did not present any substantial evidence that by the appropriation they were damaged in any amount, or in an amount greater than the special benefits.

Respondents were the owners of a tract of land consisting of 2.73 acres which admittedly was adapted for commercial use. The State appropriated by condemnation 0.62 acre for highway purposes. Respondent presented three expert witnesses who unquestionably were qualified and who testified that in their opinion the appropriation resulted in a net damage to the landowners from $29,835 to $49,975. Three persons who owned an interest in the tract testified that the damage to their property from the appropriation was from $32,000 to $50,000. All these witnesses stated that there were no special benefits.

The action of the trial court in sustaining the motion for new trial on the ground that the verdict was against the weight of the evidence is presumptively correct, State ex rel. State Highway Commission v. Flynn, Mo.App., 263 S.W.2d 854, and a trial court is vested with an inherent and broad discretion in granting one new trial on that ground. State ex rel. State Highway Commission v. Belvidere Development Company, Mo., 315 S.W.2d 781; Albert J. Hoppe, Inc. v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347, 23 A.L.R.2d 846. Its ruling will not be disturbed except in the event of manifest abuse. Dawson v. Scherff, Mo., 281 S.W.2d 825. “The rule is sometimes expressed by saying ‘that the granting of a new trial by the trial court [on the ground the verdict is against the weight of the evidence] will not be interfered with on appeal where there is substantial evidence to sustain the trial court’s view, or, putting it another way, when there is substantial evidence to support a verdict for the party to whom a new trial is granted.’ Walsh v. Southwestern Bell Tel. Co., 331 Mo. 118, 131, 52 S.W.2d 839, 845.” Dawson v. Scherff, supra, 281 S.W.2d at 831. In this condemnation case where the existence of special benefits was claimed, the jury verdict was “no damages,” and a new trial was ordered on the ground that the verdict was against the weight of the evidence, we look to the evidence most favorable to the sustention of the -trial court’s ruling, Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 34 A.L.R.2d 972, and determine whether there is any substantial evidence to support a verdict of some net damages to the landowners, and if so the trial court’s ruling is not to be disturbed.

Appellant’s evidence, consisting of the testimony of two expert witnesses authorized a finding by the jury that the special benefits exceeded the damages, and respondents’ evidence, consisting of the testimony of three expert witnesses and three owners of the property, authorized a finding that there was substantial damages and no special benefits, or that the damages exceeded the special benefits. However, on this appeal appellant contends that the trial court erred in overruling its objections to certain portions of the testimony of the three expert witnesses who testified for respondents, and in refusing to strike all the testimony of one of them. We need not, and therefore shall not, rule these contentions. Assuming, but not deciding, appellant is correct, there still remains the evidence consisting of the testimony of the three owners, which testimony is not challenged on this appeal, and which constitutes substantial evidence of damages in excess of special benefits. In addition, as to two of the expert witnesses there was no motion to strike all of their testimony, and the “specific testimony” to which objection was made pertained to the presence of a median strip in the new highway, which testimony was limited by the trial court by instruction to the jury “merely to rebut [the] theory of any special benefits to them by reason of the construction of this highway.” Even if the trial court was in error in admitting this testimony for this limited purpose, and we do not now so rule, the remaining testimony of these two expert witnesses constituted substantial evidence of damages in excess of special benefits. The trial court could properly pass upon the weight of the evidence in making its determination that the verdict was against the weight of the evidence, and we do not review that determination on this appeal.

There was substantial unchallenged evidence to support a verdict contrary to the one returned. We hold, therefore, that the trial court did not abuse its discretion in sustaining respondents’ motion for a new trial on the ground that the verdict was against the weight of the evidence.

The disposition of this appeal does not require a ruling on the issue of whether the trial court erred in granting a new trial on the ground that it “abused its discretion" in permitting the testimony of the two expert witnesses of appellant, and anything we would say would be advisory only, a practice to be avoided when possible.

The order granting a new trial is affirmed, but only on the discretionary ground that the verdict is against the greater weight of the credible evidence, and the cause is remanded.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Lester Lee MAXWELL, Appellant.
    No. 51276.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.
    Norman H. Anderson, Atty. Gen., Jefferson City, J. L. Anding, Sp. Asst. Atty. Gen., Pacific, for respondent.
    Lane & Leadlove and Earle B. Leadlove, St. Louis, for appellant.
   FINCH, Judge.

Defendant was charged with robbery, first degree, by means of a dangerous and deadly weapon and with two prior felony convictions. He was found guilty by the jury and the trial court determined he had two prior felony convictions. Punishment was fixed at eight years’ imprisonment. This is an appeal from that judgment.

The evidence of the state supports the following statement of facts: On July 30, 1964, Whitney Moses and John W. Rouse shared an apartment at 5533 Cates, in St. Louis. On July 30, Moses returned to the apartment from work and went to the basement of the building to wash some clothes. As he came up the stairs from the basement he heard someone walking in the kitchen of the apartment. He thought it was Rouse and called out but received no answer. No one was in the kitchen but when he went into the dining room he was stopped by a man (later identified as defendant) with a knife, who said, “Do not holler.” Moses was pushed into his bedroom, where his hands and feet were tied. After that defendant moved around the apartment, pulling out dresser drawers and taking things off of the table, during which time Moses observed him. He then heard the defendant using a telephone in the hallway and heard him say “Marcella” and “East.” After hearing the door close. Moses worked his hands loose, released himself, looked around the apartment, called the police and described to them the intruder, what had been taken and what had happened.

A patrolman came to the apartment and took Moses to police headquarters where he picked the defendant out of the police lineup as the intruder. Moses stated he had never seen the defendant previous to the time when he was confronted by him with a knife in the apartment. He identified the knife with which he had been threatened and identified two cigarette lighters, a man’s watch, two umbrellas, four sweaters, a Magnovox portable TV, a fan, and a radio as property belonging either to John Rouse or himself and which had been taken from the apartment by the defendant.

A cab driver for Marcella Cab Company testified that at about 7:15 p. m., on July 30, he received a call from his dispatcher directing him to the 5500 block of Cates. There he picked up defendant, who had with him a portable TV, a fan, two umbrellas, and a pillow case containing some articles, all of which were placed in the trunk of the cab. The driver testified that defendant was in the cab from that time until it was stopped by the police and the defendant arrested.

Police officers told of receiving a radio report of the robbery in which a description of the suspect was given. The report stated that the suspect last was seen traveling south on Clara in a Marcella cab. The police shortly observed a Marcella cab containing a single passenger which they stopped. The occupant, who was the defendant, appeared to fit the description and officers placed him under arrest. He was searched and in his pants pocket was found a kitchen knife, two cigarette lighters, and a man’s watch. The police then searched the trunk of the cab and found the TV, the radio, the fan, the two umbrellas, and a pillow case which contained items including four men’s sweaters.

The defendant testified in his own behalf. His explanation was that he had met Whitney Moses about two weeks before; that he had spent a couple of hours at the apartment with Whitney Moses each afternoon thereafter except Saturdays and Sundays ; that Whitney Moses was a homosexual and had given defendant the various items of property found in his possession for the purpose of setting up a separate apartment where he and defendant would live. He had assumed the property belonged to Moses and did not know any of it was the property of Rouse. He testified that he had given this information to the police when arrested. On rebuttal, the patrolman testified that defendant had stated that he had been living with Whitney Moses at 5533 Cates for several months, that they had a misunderstanding and that he was leaving the apartment, taking with him these items which were his own property.

Defendant had a preliminary hearing in the St. Louis Court of Criminal Correction at which he was represented by Joseph Noskay, the public defender for the City of St. Louis. On August 20, 1964, defendant was arraigned in the Circuit Court. He appeared in person and with Mr. Noskay, waived reading of the information and pleaded not guilty. Then on September 3, 1964, the Circuit Court appointed Earl B. Leadlove as attorney for defendant, and he continued to represent defendant in the trial court and on appeal to this court.

The trial was set for October 16 but was continued at Mr. Leadlove’s request. Meanwhile, on October 14, Mr. Leadlove took the deposition of the prosecuting witness, Whitney Moses. The case was then reset for November 16, the trial actually started on November 17 and was concluded on the 18th.

The first ground asserted as a basis for reversal is that defendant was denied a copy of the transcript of his preliminary hearing in the St. Louis Court of Criminal Correction, thereby violating his constitutional rights as provided in §§ 10 and 18(a) of Article I of the Missouri Constitution. In substance, defendant argues that by court rule and statute, enforced by court decisions, a defendant is given the right to a preliminary hearing, which is his first opportunity to face his accuser as guaranteed by § 18(a) of Article I of the Constitution. Such hearing is said to be meaningless and useless unless defendant can obtain a written transcript of such proceedings to use in preparation for trial and for examination of his accuser at the trial, and consequently the denial of such transcript violates § 18(a) of Article I and constitutes a denial of due process in violation of § 10 of Article I.

In his brief and in oral argument defendant contends that his attorney sought, without success, to obtain a copy of the transcript of the preliminary hearing from the court reporter in the St. Louis Court of Criminal Correction. There is nothing in the transcript on appeal with reference to this matter until the motion for new trial. It asserts simply that defendant was denied a copy of the transcript, thereby hindering defendant’s counsel in preparation for trial and denying valuable information for use during the trial. Actually, it is clear that no request of any kind with reference to such transcript was made to the Circuit Court, and no complaint with reference thereto was made to the trial court until the motion for new trial was filed. This is conceded in defendant’s brief, which states: “While no complaint was raised prior or during the trial, defendant feels that he has properly preserved for appeal his objection to the denial of the transcript by his motion for new trial.” Defendant relies on Criminal Rule 27.20(c) relating to plain error.

The right of an accused to a preliminary hearing in a felony case is established by rule of court and by statute. No preliminary hearing in a felony case is even required where there is a grand jury indictment or where an information is substituted for an indictment. Criminal Rule 23.02, § 544.250. There is no provision in the Missouri Constitution requiring a preliminary hearing. Actually, as expressed in State v. Richardson, Mo., 347 S.W.2d 165, 168, “ * * * the primary purpose of a proceeding in the magistrate court in a felony case is to have a warrant issued for the defendant’s arrest, grant a preliminary hearing to determine whether probable cause exists as to defendant’s guilt, and if such cause is shown, or if hearing is waived, to hold defendant or require him to give bond to answer such charge, if any, as may be filed against him in the circuit court.” See also State v. Turner, Mo., 353 S.W.2d 602, 604. In view of the nature of preliminary hearings in Missouri, we have held that there is no constitutional right to counsel at a preliminary hearing. State v. Gagallarritti, Mo., 377 S.W.2d 298, 301; State v. Turner, supra.

The rules of this court require that the testimony in a preliminary hearing be reduced to writing only in homicide cases. Rule 23.12, § 544.370. It is true, as pointed out by defendant, that § 485.140 does provide for court reporters for the St. Louis Court of Criminal Correction. The reporter is to take accurate shorthand notes of all cases and proceedings therein and, when directed by the judge thereof, is to furnish the circuit attorney with a complete transcript of the evidence and proceedings in preliminary hearings in felony cases. Magistrate courts in Missouri, however, do not have court reporters (except when appointed under § 485.150 in homicide cases), and in a case such as this one a magistrate court would not even have a stenographic transcript of the testimony. There is no constitutional requirement that there be a transcript of the testimony in such a preliminary hearing, and, as.pointed out previously, there is not even any constitutional requirement that a preliminary hearing be held. Under such circumstances, the lack of such a transcript in the hands of defendant herein did not violate either § 10 or § 18(a) of Article I of the Missouri Constitution.

Apparently, defendant’s counsel sought a copy of the transcript from the court reporter. Whether it was sought as a free transcript or one for which payment would be made is not indicated, but it is immaterial. We do not even know whether a copy of the transcript had been made and furnished to the circuit attorney pursuant to § 485.140. If it was, so far as we are informed, there was no request to the circuit attorney by defendant to examine or inspect it, and there was no request to the trial court for an opportunity to inspect it. In addition, defendant took the deposition of the prosecuting witness and the transcript shows that it was used in the cross-examination of Whitney Moses. This served the purpose which a transcript of the preliminary would have served had it been available.

For all of these reasons, defendant’s first assignment is overruled.

The second contention by defendant is that defendant’s counsel was denied the right of examination of the police record, if any, of his accuser, Whitney Moses. The assignment in the motion for new trial was broader and applied to all witnesses indorsed on the information by the state, but the brief on appeal is bruited to Whitney Moses. This alleged denial is claimed to violate §§ 10 and 18(a) of Article I of the Missouri Constitution.

Again, the transcript on appeal is devoid of any reference to this matter other than the assignment in the motion for new trial. No request of any kind was made to the trial court. Apparently, based on statements in oral argument, counsel asked someone in the St. Louis Police Department for a record check of Whitney Moses, which was refused. Defendant’s brief simply states that “by policy of the Metropolitan Police Department of the City of St. Louis, this defendant is denied the right to even determine whether or not his accuser has a police record unless the accuser consents to the disclosure of the information.”

We find no merit in this contention. What defendant is requesting is a rule which would permit an accused to inspect police department records of persons indorsed by the state on the information as witnesses against him. This would be a mere fishing expedition. Such records cover all arrests (irrespective of whether there is a conviction), comments of various kinds, and information which would not be admissible in evidence. There is no general right of discovery in criminal cases in this state, either by statute or by rule. State v. Aubuchon, Mo., 381 S.W.2d 807. It seems obvious that what defendant requests is wholly undesirable and that it is not required to protect the constitutional rights of a defendant. Inquiry could have been made to the Missouri Department of Corrections as to whether it had any record of a conviction of Moses, but counsel conceded in oral argument that this had not been done. Defendant did take the deposition of Whitney Moses and asked him at that time whether he had been convicted of a crime. Moses testified that he had not, and at the actual trial he was not even asked about any prior convictions. Defendant’s second assignment of error is overruled.

We have examined the parts of the record designated in Rule 28.02 and find them to be in proper form and free from error.

The judgment is affirmed.

All of the Judges concur.

      . All constitutional references are to V.A. M.S., Const.

      . All references to rules are to V.A.M.R.

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


text:
    Esther L. MOSS, Respondent, v. Ernest COURTAWAY, Defendant-Appellant, and Irwin F. Nelle, Jr., Defendant.
    No. 51445.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.
    Thurman, Nixon, Smith & Howald, Robert Lee Smith, Hillsboro, for respondent.
    Schwartz & Ely, Robert C. Ely, St. Louis, for Ernest Courtaway, defendant-appellant.
   STOCKARD, Commissioner.

In this suit for personal injuries resulting from a rear end automobile collision the jury verdict was for plaintiff and against defendant Ernest Courtaway in the amount of $20,000, and it was in favor of defendant Irwin F. Nelle, Jr. Plaintiff appealed from the judgment in favor of Nelle, but subsequently dismissed her appeal. Courtaway, hereafter referred to as defendant, appealed from the judgment entered against him.

Plaintiff drove her 1953 Ford from the Bank of Pevely located on Highway 61-67 northward toward the intersection with Maple Lane. The distance from the bank to that intersection was approximately 262 feet, and when she had traveled about one half that distance she turned into the inside northbound lane preparing to make a left turn. She stopped, turned on her left turn signal, and waited for southbound traffic to clear. Plaintiff testified that while stopped she looked into her rearview mirror and saw defendant’s automobile approaching in her lane, and that it was then “approaching the curve,” which otherwise was shown to be about 1,000 feet away. While still stopped, her automobile was struck in the rear by defendant’s automobile, and propelled across into the southbound lanes where it was then struck by a truck operated by Nelle.

Defendant testified that he was driving northward on Highway 61-67 at approximately 50 miles an hour. When at the curve south of the Maple Lane intersection he started to pass a truck, and when he thought he had passed the truck he looked into his rearview mirror but did not see it. He then “looked back in front” and “at that time was when Jhe] saw the car” of plaintiff. He later testified on cross-examination that after he looked in his rearview mirror he looked out of the side window of his automobile and saw the truck to his right, and it was after this that he “looked back” to the front and first saw plaintiff’s automobile. At that time he was approximately in front of the Bank of Pevely, but he did not know if plaintiff was then stopped or if she was at the intersection. Defendant made a “hard” application of his brakes and his automobile started to slide on the wet pavement. He “eased off” on the brakes to gain control of his automobile, and again applied his brakes and slowed as much as possible, and tried to turn right behind the truck but the left front of his automobile struck the right rear of plaintiff’s automobile.

Irwin F. Nelle, Jr., was operating his truck southward on Highway 67-61 in the outside lane. North of the intersection of the highway with Maple Lane was a viaduct, the south end of which was 443 feet north of the intersection. When Nelle was at the north end of the viaduct, its length not being shown, he saw the automobiles of both plaintiff and defendant. Plaintiff “was beginning to pull out of the Pevely Bank and she pulled out there over into the left hand lane and headed down towards Maple Lane or the intersection.” Defendant’s automobile was “on the turn coming around the pickup truck * * * on his side of the road.” He further testified that plaintiff “pulled up there and stopped at the intersection,” and at that time he was “about half way between the bridge and the road that turned off to the left.” When defendant’s automobile struck that of plaintiff it was propelled into the path of Nelle’s truck.

Defendant’s first point is that plaintiff’s verdict directing instruction, based on the rear end collision doctrine, was prejudicially erroneous because it failed to hypothesize “the length of time that plaintiff’s automobile was stopped,” citing only Doggendorf v. St. Louis Public Service Co., Mo.App., 333 S.W.2d 302. We note that if the judgment is reversed and a new trial awarded for this or any other reason, on a new trial a submission on the rear end collision doctrine would be pursuant to MAI 17.16, and a hypothesization of the length of time plaintiff’s automobile was stopped would not be required. We note also that defendant did not plead contributory negligence on the part of plaintiff and no such instruction was asked for or given. Neither did defendant submit in an instruction his version of the facts as presenting a factual situation which would authorize a jury to find no negligence on his part.

Since defendant relies only on Doggen-dorf v. St. Louis Public Service Company, supra, we shall examine it. It was there held that in a case in which the rear end collision doctrine is submitted and “where the foremost vehicle is at rest, but the length of time it has been at rest is in dispute, then it is not sufficient to merely hypothesize that the defendant’s car ran into the rear of plaintiff’s car while it was stopped,” but the “length of time it had been stopped before the collision occurred” was an essential element of plaintiff’s instruction. Defendant’s evidence in the Doggendorf case would have authorized a finding that plaintiff’s automobile swerved directly into the path of defendant’s streetcar and was brought to a sudden stop so that in the time and distance available the streetcar could not have been stopped before the collision. We cannot determine from the opinion whether defendant submitted this factual situation as either constituting contributory negligence or authorizing a finding of no negligence on the part of defendant. The above rule of the Doggendorf case apparently was deemed necessary because “As plaintiff’s verdict-directing instruction was drawn, it authorized the jury to find in favor of plaintiff even if they discredited all the evidence offered by him, and believed the defendant’s evidence.” This, we believe was the real basis for the Doggendorf opinion.

In this case, even if the jury discounted plaintiff’s version of the collision and believed defendant’s evidence, plaintiff was entitled to the rear end collision submission as made. Defendant did not testify that plaintiff did anything which would have exonerated him from negligence under the circumstances. There was no evidence of sudden swerving or stopping. At most, defendant’s evidence authorized a finding that he did not timely see plaintiff’s automobile ahead of him either stopped or coming to a stop because he was looking someplace else. The jury was entitled to find that this was negligence under plaintiff’s submission. Without further discussion of the Doggendorf case, we hold that by reference to and reliance on it alone defendant has not demonstrated that plaintiff’s verdict directing instruction submitting the rear end collision doctrine was prejudicially erroneous.

Defendant’s remaining point is that the verdict, in the amount of $20,000, is excessive and that this court should order a remittitur.

Defendant’s motion for new trial was not filed until after the trial judge who heard the evidence had gone out of office. The new trial judge did not rule on the motion for new trial, and after ninety days it was deemed denied by operation of Civil Rule 78.04, V.A.M.R. In our review of the issue of the excessiveness of the verdict we review the evidence de novo, but in this case there is no issue of whether deference should be given to the opportunity of the trial court to hear the testimony and to observe plaintiff throughout the trial.

At the time of trial plaintiff was 46 years of age and married. When she was ten years of age she had acute osteomyelitis in her left leg, and as a result the leg was shortened about three inches. It was weaker than her right leg, and she had some limp. However, she wore a raised shoe and she could run and go up and down stairs. The condition of her leg did not limit her activities to any extent. As a result of her automobile being struck by that of defendant, and by the automobile of Nelle, she sustained “a fracture of the lower end of her femur,” at the knee, and “it broke into the knee.” There were two fracture lines, resulting in a “major fragment” and “two smaller fragments.” This was described as “a fracture of the inter-condylar as well as the supracondylar.” There was “some separation, some mild separation,” but no displacement. Plaintiff was first taken to a nearby hospital, and then to the Missouri Baptist Hospital in St. Louis. There “a closed reduction” was made while plaintiff was under a general anesthetic and a “hip cast” was put on which extended “from her toes on her left leg up to the upper thigh around her pelvis and up to the lower margin of her ribs.” Plaintiff wore this cast, and its replacement, for eight weeks and two days, and she was hospitalized for ten weeks. The hospital records contain 153 entries showing the administration of dem-erol or darvon for relief of pain. Dr. William R. Bohne, a recognized orthopedic surgeon who treated plaintiff, testified that as a result of the fractures there was “angu-lation” which “throws a joint out of kilter,” and which resulted in “a little forward bowing” and “the knee doesn’t work properly as if it were straight out.” The doctor also testified that the bowing or angulation would cause a disturbance in the weight-bearing angle of her knee “because her condyles do not lay flush on the tibial condyles,” that as the result of the automobile collisions and the fractures plaintiff received an additional shortening of her leg of one-quarter to one-half an inch, some small loss of flexion in her knee, and some deformity of the femur, all of which conditions are permanent. Following her release from the hospital plaintiff used crutches until September 1963, which was four to four and one-half months after the accident. Plaintiff testified that she cannot go up and down steps unless there is a handrail, that she cannot stand while doing such household duties as ironing, that she has had constant pain since the accident varying in intensity, and her ability to sleep has been affected. Neighbors of plaintiff testified to the effect that she is not as active as before the accident, and that her limp is more noticeable. There also was testimony from neighbors that she is no longer active in club and church affairs, she cries a lot, is not able to walk about the neighborhood as she previously did, and that she goes around her house to avoid climbing four or five steps at the back of her house. There was no medical or hospital expense submitted as special damages in this case, and plaintiff suffered no loss of income.

Defendant cites and relies on Bowyer v. Te-Co, Inc., Mo., 310 S.W.2d 892; Westfall v. Mossinghoff, J. & Co., Mo., 345 S. W.2d 148; Salzwedel v. Vassil, Mo.App., 351 S.W.2d 829; and Ciardullo v. Terminal Railroad Association of St. Louis, Mo., 289 S.W.2d 96, 60 A.L.R.2d 516, in support of his contention that a “substantial remittitur should be ordered.” Each of these cases has been read carefully. In each case a remittitur was ordered, but none present precisely the factual situation here. Plaintiff cites and relies on Cruce v. Gulf, Mobile & Ohio R. Co., 361 Mo. 1138, 238 S.W.2d 674; Scneder v. Wabash Railroad Company, Mo., 272 S.W.2d 198; De Mariano v. St. Louis Public Service Company, Mo., 340 S.W.2d 735; Boehm v. St. Louis Public Service Company, Mo., 368 S.W.2d 361; and Douglas v. Twenter, 364 Mo. 71, 259 S.W.2d 353, to support her contention that the verdict is not excessive. She also cites the Douglas and Cruce cases, and Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14, in support of her contention that in determining whether a verdict is excessive we should consider the decline in the purchasing power of the dollar.

We see no occasion to restate the applicable rules concerning the use of remittiturs in this state. See Myers v. Karchmer, Mo., 313 S.W.2d 697; Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487; Moore v. Ready Mixed Concrete Company, supra. It has been said, and correctly so, that there is no accurate scale for measuring the money value of the damages sustained for personal injuries. Van Campen v. St. Louis-San Francisco Ry. Co., 358 Mo. 655, 216 S.W.2d 443, 449. However, upon consideration of all the facts of this case and upon comparison of the verdict and the injuries sustained to those in the cited and other cases, we necessarily reach the conclusion that while the amount of the verdict may be said to be liberal, it is not excessive in the sense which would justify the exercise by this court of its discretion to order a remittitur.

The judgment is affirmed.

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.