author: BOHLING, Commissioner.

text:
    STATE of Missouri, Respondent, v. Grace DEYO, Appellant.
    No. 49085.
    Supreme Court of Missouri, Division No. 2.
    July 16, 1962.

      Edward R. Boyle, Boyle & Schuler, Clear Lake, Iowa, Clyde Rogers, Gainesville, for appellant.
    Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
   BOHLING, Commissioner.

Grace Deyo, appellant, and one Bill Shindler, in an information filed in Ozark County, were charged jointly with the murder in the first degree of Kenneth V. Deyo, the husband of said Grace Deyo, on or about July 28, 1959, by poison. There was a severance and, upon trial, Honorable Douglas W. Greene, Judge of the Circuit Court of Greene County, presiding upon transfer, appellant was convicted and sentenced to life imprisonment. She appeals.

Mr. and Mrs. Deyo, with their three children, lived in the Almartha neighborhood, Ozark County, Missouri, near the Douglas County line. A brief outline of the State’s theory, as developed by its evidence and based upon a conspiracy between appellant and Shindler, may aid in a more ready understanding of the case. The facts that are made issues for review are developed hereinafter. Bill Shindler and Mrs. Deyo indulged in sexual relations. Mr. Deyo’s practice was to take a vitamin before retiring. Bill Shindler placed a capsule containing strychnine in the bottle containing Deyo’s vitamins. Around 8:00 or 8:30 p. m., July 27, 1959, Mr. Deyo took a capsule from his vitamin bottle, soon thereafter became sick, and died about midnight. The toxicological and pathological examinations of his body disclosed that Mr. Deyo’s death was due to acute poisoning by strychnine.

Appellant did not testify. She adduced evidence for the purpose of establishing that her confession was involuntary.

I. The prosecuting attorney in his opening statement referred to facts contained in a written statement given by the appellant to Sheriff George A. Rose of Ozark County (who at the time had a warrant for appellant’s arrest) and Trooper John R. Teichman of the Missouri State Highway Patrol at Mason City, Iowa, on October 1, 1959, appellant having moved to Clear Lake, Iowa, following Mr. Deyo’s death. The court, at appellant’s request, held a preliminary hearing on whether appellant’s statement was voluntarily given. Appellant’s position was that the State had the burden of establishing the volun-tariness of the statement, and appellant had the right to cross-examine and introduce her own evidence. The court’s view was that the statement was presumptively voluntary; and appellant, proceeding under this ruling, called Officers Rose and Teichman to the stand. They were the only witnesses on the issue and, without detailing it, their testimony established that appellant’s statement was voluntarily given, without threats or promises and that appellant was alert and wanted to talk. Appellant read, corrected in her handwriting, and signed the statement. About five minutes later she was placed under arrest. Appellant, in her brief, admits that later at the trial before the jury the testimony of Rose and Teichman as witnesses for the State was the same as their testimony at the preliminary hearing.

The State in its brief concedes appellant’s point that the court erred in placing the burden on appellant at the preliminary hearing of proving her statement was involuntary, but contends this error was not prejudicial as said issue was properly developed before and submitted to the jury at the trial on the merits. See with respect to the State having the burden of proof: 23 C.J.S. Criminal Law § 835, p. 247, note 52, stating Missouri holdings and citing, among others, State v. Williamson, 339 Mo. 1038, 99 S.W.2d 76, 81 [8, 9]; State v. Bradford, Mo., 262 S.W.2d 584, 586 [1-5]; State v. Di Stefano, Mo., 152 S.W.2d 20 [2-4],

It is stated in State v. Humphrey, 357 Mo. 824, 210 S.W.2d 1002, 1004 [6], that when the court admits a confession “the matter of whether or not it was shown to he involuntary must he determined on appeal from all the evidence both at the preliminary hearing and before the jury * * *. [Citing cases.]” See also State v. Thomas, 250 Mo. 189, 157 S.W. 330 [9]; State v. Menz, 341 Mo. 74, 106 S. W.2d 440, 450 [13] ; State v. Statler, Mo., 331 S.W.2d 526, 530 [9].

In view of the presentation of the evidence before the jury by the State and by the appellant on whether appellant’s confession was voluntary or involuntary and instructions of the court on said issue and that the burden rested upon the State to establish appellant’s guilt beyond a reasonable doubt, no prejudicial error resulted in the case at bar from the court’s placing the burden on appellant at the preliminary hearing out of the presence of the jury.

II. Appellant contends that error was committed in admitting the statements of appellant in evidence before the corpus delicti was proved and in overruling appellant’s motions for judgment of acquittal. The motion at the close of the State’s case was waived by appellant’s introduction of evidence. State v. McMillian, Mo., 338 S.W.2d 838, 842 [1].

In ruling the motion at the close of all the evidence the probative evidence favorable to the State is taken as true, as are all the legitimate inferences to be deduced therefrom, and all evidence and inferences contrary thereto are disregarded. See McMillian, supra, and State v. Truster, Mo., 334 S.W.2d 104, 107.

“ ‘In a homicide case the corpus delicti consists of two elements, first, the death of a human being and, second, the criminal agency of another in causing the death.’ ” State v. Morris, Mo., 307 S.W.2d 667, 673, quoting State v. Meidle, Mo., 202 S.W.2d 79, 81 (cases cited by appellant). See 41 C.J.S. Homicide § 312, p. 6; State v. Truster, supra. Proof that the accused was criminally liable is not an element of the corpus delicti; but is required to convict the accused. State v. O’Kelley, Mo., 213 S.W.2d 963, 966 [2]; State v. Hardy, 365 Mo. 107, 276 S.W.2d 90, 93; the Morris and Meidle cases, supra.

The following is quoted and applied in State v. Haun, Mo., 324 S.W.2d 679, 681 [1] : ‘“It is established law in Missouri that when the corpus delicti has not been sufficiently proven, an uncorroborated extrajudicial confession of guilt cannot be regarded as evidence tending to show guilt. * * * Yet this rule does not require full proof of the body of the offense, independent of the confession. If there is evidence of corroborating circumstances independent of the confession, which tends to prove the offense by confirming matters related in the confession, both the corroborating circumstances and the confession may be considered in determining whether or not the corpus delicti has been established.’ ” See also State v. Skibiski, 245 Mo. 459, 463, 150 S.W. 1038, 1039 [1], a frequently-quoted case; State v. Kollenborn, Mo., 304 S.W.2d 855, 858; State v. Truster, Mo., supra. We have said only slight corroborating facts have been held sufficient (see State v. Truster, supra, citing cases), and, notwithstanding the general practice, it is not essential that the independent proof of the corpus delicti come first in the order of proof (State v. Arndt, Mo., 143 S.W.2d 286 [3, 4] ; State v. Rohman, Mo., 261 S.W.2d 69, 73 [13]). See C.J.S. Criminal Law §§ 730, c; 1046.

The corroborating circumstances in this record independent of appellant’s statements confirm the matters related in her statements and both the corroborating circumstances and appellant’s statements are for consideration.

Appellant’s statement was introduced in evidence before the jury during the examination of Trooper Teichman and after proof of the corpus delicti. We set it forth here for better understanding of this issue. It is in narrative form ; that is, a question would be asked and the answer typed in the narrative. With the exception of the first and last two paragraphs, everything in the statement is appellant’s narration of the facts. Appellant read the statement, corrected it in one place, and then signed it. Omitting the caption and signature, the statement reads:

“This statement is made in the presence of Sheriff George Rose of Ozark County Missouri, and to Trooper John Teichman of the Missouri Highway Patrol. It is made to these persons, without any threat or promise, and I understand that it may be used either for or against me in a Court of Law.

“My name is Grace Marie Deyo. I am 43 years old. I was born on January 6, 1917 at Clear Lake, Iowa. I am the widow of Kenneth Virgil Deyo, and have 3 children. Their names are, Doris Jean, age 10, Diana Marie, age 4, and Dorothy May Miller, age 20, who lives in Houston, Missouri. At the present time, I am living at RFD '#2 Clear Lake, Iowa.

“At approximately August 1958, Bill Shindler started coming around my home at Almartha, Missouri. He first came there to look at our cattle, to see about buying some. Shindler returned to the farm several times since then, during which times, he and I had sexual relations. One of the neighbors told my husband about these visits of Shindler, and Kenneth and him had an argument about it. Bill told me that Kenny had lit into him about it.

“Around April 1959, Bill suggested that he would take Kenny out into the woods and shoot him, because he didn’t like the way he was treating me and the kids. I told Bill that he couldn’t get away with it, and he didn’t say any more about it. Later on, Bill went up to see John Hodges, to see about getting some strychnine poison for him. That was around May sometime. Hodges was the one who told him about it. I don’t know if he was going to get it for Bill or not.

“Several weeks before Kenny died, Bill Shindler showed me a small bottle that had a label stating the bottle contained strychnine. He said that he got some fellow in Gainesville to take him to Mountain Home, Arkansas to get it. I had told him that Kenny was taking Vitamin tablets, and he said he would put some of the poison in some capsules and put them in the bottle where Kenny kept his Vitamins. Bill showed me some brown capsules, that he said he was going to put the poison in. They looked just like the ones Kenny was taking. Bill told me that he was going to put the capsule with the poison in it, back into the bottle of Vitamins. I don’t know when he did this, but I did know he was going to do it.

“Kenny would take his Vitamins just before he went to bed every night. On July 27, 1959, at approximately 6:30 P.M., we had our supper. I think that Kenny took his Vitamin around 8 or 8:30 P.M. We sat up and watched the News on TV and then Kenny got sick. He complained of a lot of pain in his left arm and side, and said he thought he was having a heart attack or a stroke. In a short time, he just slid out of the chair and laid on the floor. I thought he might have gotten the pill with the poison in it, but I wasn’t sure, because he said he thought he was having a heart attack. I didn’t know for sure, because I didn’t know how strychnine acted. He laid on the floor until about midnight, when I felt his pulse and believed he was dead. I had wanted to go get a Doctor, but he wouldn’t let me leave him. When I knew he was dead, I went down to Howard Plasters to get help.

“I haven’t seen Bill Shindler since Kenny’s death, but he had been around my home with other people there. I had a sale August 10, 1959, and then came to Clear Lake, Iowa with my folks. They didn’t want me to live down there alone.

“I do remember Bill telling me about this fellow who is supposed to have taken him to Mountain Home, that he had gotten rid of his wife the same way. I don’t recall Bill ever saying who this fellow was.

“I have read the above statement consisting of one (1) typewritten page, and it is the truth to the best of my knowledge.

“Signed this 1st day of October, 1959 at the Sheriff’s Office in Mason City Iowa, in the presence of the above named Officers.”

Bill Shindler and Mrs. Deyo had indulged in sexual relations. Deyo’s custom was to take a vitamin before retiring. Around 8:00 or 8:30 p. m. July 27, 1959, Deyo took a capsule from his vitamin bottle, soon thereafter became sick, and died about midnight. His body was taken to the Clinkingbeard Funeral Home in Ava. On July 29, Mrs. Deyo authorized an autopsy to be performed upon the body. Dr. Harvey S. Smith, pathologist at the Burge Hospital in Springfield, performed a complete autopsy. Dr. Smith described Mr. Deyo’s body as that of a reasonably young man, well-nourished and heavily muscled; and stated Mr. Deyo’s death was not caused by heart attack, physical injuries or disease. He was unable to determine any cause for the death. He took portions of the brain, liver and kidneys and all the material he could obtain from the stomach and prepared them to be sent for toxicological examination. These specimens were delivered to Lieutenant James Rhodes, chemist in charge of the technical laboratory of the Missouri State Highway Patrol in Jefferson City. Lieutenant Rhodes’ tests resulted in his recovery of certain stated quantities of strychnine from these specimens. Dr. Smith, recalled, testified in answer to a hypothetical question that, upon the basis of his findings and those of Lieutenant Rhodes, he was of the opinion, based upon reasonable medical certainty, that Mr. Deyo’s death was due to acute poisoning by strychnine. A legitimate inference from this record is that Bill Shindler placed a strychnine capsule, looking just like the ones Mr. Deyo was taking, in the bottle containing Mr. Deyo’s vitamins.

Appellant’s belief that Mr. Deyo had a heart attack or might have taken the purported vitamin with poison and the fact that he was a reasonably young, well-nourished, healthy, and heavily muscled man warranted a finding he did not commit suicide.

In State v. Taylor, Mo., 190 S.W. 330, 333 [5], it was contended the corpus delicti was not established, there being no direct evidence of the administration of the poison. We said: “Notwithstanding the absence of this character of proof, there was evidence of a succession of facts which when considered in the order of their occurrence are of strong probative force.” One placing poison for another who unknowingly takes it may be convicted as principal in the first degree. State v. Fulkerson, 61 N.C. 233. See 22 C.J.S. Criminal Law § 83, p. 245, note 5; 40 C.J.S. Homicide § 11, p. 853, note 84. Dictum in Pierce v. State, 130 Tenn. 24, 42, 168 S.W. 851, 855, Ann.Cas.l916B, 137, 142; well states this law: “* ⅜ * in case of murder by poisoning, one might be a principal felon by preparing and laying the poison or persuading another to drink it who was ignorant of its poisonous quality, or by so arranging that one would take poison in the absence of the actor.”

There was sufficient proof of the corpus delicti.

III. Appellant contends there was no evidence of a conspiracy between appellant and Bill Shindler; reasoning that “mere knowledge and acquiescence are not sufficient to prove conspiracy or that appellant, who knew and acquiesced in the commission of a crime, is guilty.” Appellant’s cases are State v. Larkin, 250 Mo. 218, 157 S.W. 600, 603 [2,3], 46 L.R.A.,N.S., 13; State v. Mathis, Mo.App., 129 S.W.2d 20, 22 [2]; State v. Thompson, 293 Mo. 116, 238 S.W. 786 [2], In the Larkin case, closest in point of fact to the case at bar, one Harris worked on the night shift. On the night in question he left home at 9 :00 p. m., as usual, but soon returned, surprising his wife and Larkin under a tree. Harris threatened to kill and shot at Larkin, who ran and, having a revolver, returned the fire, killing Harris. Tried jointly, Mrs. Harris and Larkin each received terms of ten years’ imprisonment. Mrs. Harris, although present, did not participate in any physical manner whatever in the shooting and killing of her husband. The court stated: “[W]e need not cite authorities that mere presence at the scene of a killing without more does not constitute that aiding, abetting, assisting, encouraging, or advising such killing required by the law to constitute guilt.” A conspiracy betwen Mrs. Harris and Larkin to kill Mr. Harris does not appear to be an issue in the case. We do not develop the facts in the Mathis and Thompson cases as we are of opinion there is much stronger evidence of a conspiracy in the case at bar than in any of appellant’s cases.

The following, omitting citations, is quoted with approval in State v. Menz, 341 Mo. 74, 106 S.W.2d 440, 448: “ ‘ “A conspiracy, like any other fact, may be shown by circumstantial evidence; it is not necessary to prove by direct evidence an agreement to commit a crime in order to establish a conspiracy. * * * Because of the difficulty of procuring direct evidence, generally it must be shown by circumstances.” * * *

“ ‘ “ * * * It is not necessary to prove that parties who engage in a common enterprise to commit a crime made a definite agreement before committing the crime.” * * * ’ ” State v. Williams, 356 Mo. 1048, 204 S.W.2d 748, 749 [2-4].

A jury can believe or reject all or any part of an accused’s statement, confession or testimony. The jury did not have to believe appellant’s self-serving statements. State v. Hill, Mo., 328 S.W.2d 656, 659 [3].

The evidence most favorable to the State and the legitimate inferences therefrom justified, we think, the following findings by the jury. The motive for doing away with Mr. Deyo, referred to as Kenny by appellant, is found in appellant’s sexual relations with Bill Shindler. Discussions between appellant and Shindler about getting Kenny out of the way started in April, 1959, Shindler suggesting taking Kenny out in the woods and shooting him and appellant advising Shindler “he couldn’t get away with it.” There is no evidence that she told him not to kill her husband or that she warned her husband. Appellant stated Shindler went to John Hodges in May to get strychnine. She does not state how she knew this. Several weeks before Kenny died Shindler showed appellant a small bottle labeled strychnine, and told her “he would put some of the poison in some capsules and put them in the bottle where Kenny kept his Vitamins.” She “had told” Shindler “Kenny was taking Vitamin tablets” and the jury could infer that appellant showed Shindler Kenny’s vitamins, as Shindler procured capsules (not tablets) which were brown and “looked just like the ones Kenny was taking.” Shindler said he was going to put the capsule with the poison in it back into the bottle of vitamins. She didn’t know when he did this but knew he was going to do it. The jury could find that appellant admitted Shindler to the Deyo home; that transactions and discussions betwen appellant and Shindler occurred there, and appellant permitted him to make use of the bottle containing Kenny’s vitamins. Kenny took his vitamin around 8:00 or 8:30, July 27. After watching the news on television, Kenny got sick, complained of a lot of pain, slid out of his chair in a short time and lay on the floor. Appellant “thought he might have gotten the pill with the poison in it.” Kenny “laid on the floor until about midnight, when I felt his pulse and believed he was dead.” When she “knew he was dead” she went for help. Appellant had a sale August 10, 1959, and then went to Clear Lake, Iowa, with her folks.

Trooper John R. Teichman and Deputy Sheriff Bill Bonnell (who died before the trial) went to the Deyo home to investigate. Teichman, omitting some facts covered by other evidence, testified that appellant said she thought her husband had a heart attack. When he asked about Mr. Deyo’s taking vitamins, appellant stated she didn’t know what they were. After he described them, she went to the kitchen, returned with two vitamins, stated Mr. Deyo took one daily before retiring and had taken one that night. He asked appellant if she would consent to an autopsy and “she said, no, definitely not, she didn’t want her man cut up.” Teichman’s testimony was that this talk with appellant was on the night of July 28th or 29th, but he testified appellant told him it was the night after Mr. Deyo’s death, which would be July 28th, and that she did not tell him she had already consented to an autopsy. Her consent for an autopsy is dated July 29, 1959.

George A. Rose, Sheriff of Ozark County, upon his return from a trip, talked to Mrs. Deyo in July, 1959. He testified, among other things, that appellant said Bill Shindler and she “didn’t have any relations, didn’t mean anything to each other.” His investigation failed to disclose any sale of strychnine to Bill Shind-ler or Mrs. Deyo.

The jury could find Teichman’s investigation was on the night of July 28th; that appellant was attempting to conceal her knowledge of the vitamins and Kenny’s daily use of them, and that her objection to an autopsy was based on fear of what it might reveal. She also was concealing material facts in her later interview with Sheriff Rose. The jury could also reason from the facts of record that appellant was not a mere passive looker-on in the transactions leading to her husband’s death; that her actions and discussions with Shind-ler imparted to him her co-operation and gave him confidence he could rid them of Mr. Deyo by placing the poison where Mr. Deyo would unknowingly take it in his absence. A word from appellant to her husband would have prevented his death. The jury could also find, following Mr. Deyo’s death, from appellant’s statements she thought her husband died of a heart attack, from her refusal at first to consent to an autopsy, and from her denial of improper relations with Shindler that these statements and actions were in furtherance of the conspiracy and understanding and the community of purpose she had with Shindler.

IV. Appellant says her motion for judgment of acquittal should have been sustained because “there was no evidence in the case of any overt act on the part of the appellant.” Briefly, appellant cites State v. Davis, 319 Mo. 1222, 6 S.W.2d 609, and State v. Lourie, Mo., 12 S.W.2d 43, companion cases, separately tried, where defendants were jointly charged “with an attempt to commit murder in the first degree” under RSMol919, § 3683 (now RSMo 1959, § 556.150, V.A.M.S.), which required the doing of an “act toward the commission of” the offense.

Appellant stood charged with murder in the first degree. Having conspired with Shindler she became an accessory before the fact (40 C.J.S. Homicide § 9, p. 836, note 78; 22 C.J.S. Criminal Law § 90, p. 268; State v. Stidham, Mo., 305 S.W.2d 7, 15; State v. Mason, 322 Mo. 194, 14 S.W.2d 611, 616 [13]) to the murder of her husband and under § 556.170, RSMo 1959, V.A.M.S., could “be charged, tried, convicted and punished” as a principal in the first degree (State v. Lunsford, Mo., 331 S.W.2d 538, 540 [3,4]; State v. Tripp, Mo., 303 S.W.2d 627, 631 [2]) without her further participation in or presence at the offense (State v. Holloway, 355 Mo. 217, 195 S.W.2d 662, 664 [1-3]; State v. Mason, supra; State v. Menz, 341 Mo. 74, 106 S.W.2d 440, 448 [9]; State v. Hill, 352 Mo. 895, 179 S.W.2d 712, 714).

Appellant has not established error.

V. Appellant’s brief contains points V through XII claiming error in the admission of the testimony of different witnesses without the citation of any authority except under Points X and XI. See Supreme Court Rule 83.05, V.A.M.R. The testimony of these witnesses pertained largely to acts of and statements by Bill Shindler outside the presence of appellant and appellant claims there was no proof of a conspiracy between appellant and Shindler, and the testimony respecting the acts and statements of Shindler was hearsay and incompetent. We need not discuss each of these points.

For example, John Hodges, 75 years old and totally blind for three years, testified he had known Bill Shindler for fifteen years; they were good friends and, off and on for about a year, had had conversations about Mr. and Mrs. Deyo, Shindler telling him he was going to do something to Mr. Deyo, that appellant was a fine woman and he was going to have her. Shindler told him appellant said she was going to get rid of Deyo. Shindler said he was “stickin’ to Deyo’s wife whenever Deyo was gone”; that appellant would turn on the porch light and he would stay with her, have breakfast before daylight and go home; that they planned to give Deyo sleeping tablets, take him fishing and roll him in the lake but the tablets had no effect on him. About two weeks before Deyo’s death, Shindler told him they were going to give Deyo strychnine, and told him on Sunday before Deyo’s death that he, Shindler, had some strychnine and was going to put it in Deyo’s vitamin box. Witness didn’t remember whether Shindler told him appellant knew “all about the strychnine.”

Appellant’s cases are State v. Loeb, Mo., 190 S.W. 299, 304; State v. Faulkner, 175 Mo. 546, 591, 75 S.W. 116, 130, cited in the Loeb case; State v. Chernick, Mo., 278 S.W.2d 741, 747, 748; State v. Chernick, Mo., 280 S.W.2d 56, 59, 60. We understand the holdings, insofar as possibly applicable here, in the Loeb and Faulkner cases to be that statements or declarations of a co-conspirator against one not present when the statements or declarations are made are inadmissible in the absence of any testimony to show that a conspiracy existed (State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22, 28); and in the Chernick cases (see 278 S.W.2d 746) to be that: “After the common enterprise is ended, whether by accomplishment or abandonment, no one of the conspirators or joint actors is permitted by any subsequent act or declaration of his own to affect the others.”

We have hereinbefore considered there was sufficient probative evidence for the jury to infer the existence of a conspiracy between appellant and Bill Shindler to do away with appellant’s husband. Shind-ler’s statements during the existence of the conspiracy were admissible in evidence. State v. Rosegrant, 338 Mo. 1153, 93 S.W.2d 961, 974 [27]; State v. Johnson, Mo., 286 S.W.2d 787, 792 [7]. It may be that certain portions of the testimony of particular witnesses could be properly objected to upon a retrial, but appellant’s authorities and objections interposed do not establish error.

VI. The transcript of the testimony of C. W. Duffer at appellant’s preliminary hearing was read in evidence, and appellant claims error in that there was no sufficient showing of diligence on the part of the State to obtain said witness’s presence at the trial for its admission in evidence, and that the witness’s absence from the State was not established by competent evidence.

The prosecuting attorney knew on May 8, 1961, that this case was set for trial on June 6. He had had difficulty in securing witness Duffer’s presence at the preliminary hearing of Bill Shindler by reason of the witness’s preaching outside of the State at that time. He stated his information was that witness Duffer had moved out of the State; had returned to Ava, and had left again and gone to Oklahoma.

A subpoena, dated May 29, 1961, and issued out of the Circuit Clerk’s Office of •Ozark County for several witnesses on behalf of the State, was received by Don Souder, Sheriff of Douglas County, as we read his testimony, on May 31 or June 1. Sheriff Souder testified that his office worked on his books June 1st and he believed he first sought to serve the subpoena on witness Duffer on June 2nd or 3rd; that he had the subpoena in his pocket or his car all the time; that he made five trips to the Duffer residence, the fifth being after dark June 5th, and on June 6th filed his return stating, among other things, that witness Duffer could not be found in Douglas County. He testified that witness Duffer resided permanently in Ava and Mrs. Duffer taught school there; that Mr. Duffer was in Ava for about thirty ■days before the trial, the last time he saw him being a week or ten days before June '6th; that he could have served the subpoena on witness Duffer had he received it ten, twelve or fourteen days prior to June 6th, and that he attended to this subpoena as soon as he possibly could in the course of his work. He testified he made inquiry concerning the whereabouts of witness Duffer and, over the objection that it was hearsay, stated he was told Duffer had ■gone to Oklahoma and would not be back by June 6th.

We think the fact inquiry was made concerning the whereabouts of the witness tended to establish diligence on the part of the officer. However, the fact that his informants told him Duffer was in Oklahoma, so far as disclosed by this record, was subject to appellant’s timely objection that it was hearsay and was not probative evidence of the witness’s absence from the State authorizing the admission of his testimony at the preliminary hearing. See State v. Gallina, 352 Mo. 557, 178 S.W. 2d 433, 434. Notwithstanding the difficulty in securing Mr. Duffer’s presence at the preliminary hearing of appellant’s co-defendant, the effort made by the State’s attorney to secure his presence at this trial was the issuance of a subpoena on May 29th for the trial set for June 6th. While the Sheriff of Douglas County may have diligently discharged his duties after receiving the subpoena, the State’s attorney exhibited less diligence than was shown in the Gallina case. We conclude Mr. Duffer’s testimony at the preliminary hearing should not have been admitted in evidence. State v. Kain, Mo., 330 S.W.2d 842, 844. Compare State v. Harp, Banc, 320 Mo. 1, 6 S.W.2d 562, 563 [2].

This testimony of witness Duffer was a link in the establishment of the pathological and toxicological examinations upon the body of Mr. Deyo. The fact that it was improperly admitted in evidence does not entitle appellant to be discharged, but requires that the case be reversed and remanded to afford the State an opportunity to properly establish this fact by the testimony of Mr. Duffer or by other evidence. See State v. Watson, Mo., 350 S.W.2d 763, 768 [4].

VII. Counsel for the appellant on several occasions during the progress of the trial informed the court that no defense of insanity was in the case. Appellant’s witnesses Herman Melton and James E. Bane each testified he gave appellant an “I. Q.,” or “intelligence quotient” test, and witness Melton testified appellant’s mental age, “that means, how does she compare with children in school in learning,” was that of a twelve year old and witness Bane gave appellant a rating of a ten or ten and one-half year old child. This testimony was offered and admitted in evidence for the sole purpose of letting the jury consider that circumstance along with other circumstances in deciding whether or not appellant’s statements were voluntarily given. Appellant next placed on the stand Dr. Selden W. Chambers, who had practiced medicine for twenty-seven years and was then engaged in the general practice at Mountain Home, Arkansas. He had had three years’ experience in psychiatry at the State Hospital for Mental and Nervous Diseases, five years’ psychiatric work in his county for the Government in connection with the induction of soldiers that were thought possibly to present mental cases, and had been called in consultation on psychiatric cases by his colleagues. His testimony was offered in corroboration of the testimony of witnesses Melton and Bane and to show that appellant was feeble-minded as affecting the voluntariness of appellant’s statements and confession.

Appellant complains of the trial court’s ruling that Dr. Chambers was not qualified to give testimony corroborating that of said witnesses, and that his testimony would be merely cumulative. Trial courts have a wide discretion in this matter, but we are of opinion that upon proper questioning appellant was entitled to the offered testimony of Dr. Chambers, who had some training in psychiatry, in addition to the testimony of the psychologists Melton and Bane.

We are mindful that, on the issue of insanity as a defense, “ ‘the mental test for criminal responsibility is whether the accused was capable of distinguishing right from wrong as applied to the particular act.’ ” State v. Goza, Mo., 317 S.W. 2d 609, 613 [2]; State v. Bannister, Mo., 339 S.W.2d 281 [2]. We have also said: “Where it is not contended that the accused is an idiot, lunatic or insane person, evidence of feeble intellect and weak intelligence is not admissible.” State v. Jackson, 346 Mo. 474, 142 S.W.2d 45, 49 [7]. And: “While there is a common-law presumption in this state that an infant between the age of seven and fourteen has no criminal capacity * * *, there is no such presumption in favor of an adult of that alleged mental age.” Id., 142 S.W.2d 1. c. 50 [11]. “Moronity, mere weakness of intellect, or subnormal mental capacity, is not in and of itself such insanity or mental incapacity as constitutes an excuse or defense to a crime.” State v. Pinski, Mo., 163 S.W.2d 785, 787 [4].

VIII. In instruction No. 11, on the voluntariness of appellant’s statements, the court instructed that “by the term 'voluntarily’ the Court means not secured by intimidation or duress.” Appellant has preserved for review the contention that the definition should have also included whether appellant’s statements were obtained by promises to appellant. We think this contention of appellant well taken under the record before us. Consult State v. Barnett, Mo., 338 S.W.2d 853, 856 [2, 5]; 23A C.J.S. Criminal Law §§ 1135 (p. 295), 1230 (p. 582); and instructions in State v. Cunningkin, Mo., 261 S.W.2d 85, 86; State v. Pillow, Mo., 169 S.W.2d 414, 416.

IX. The court gave an instruction (No. 12), the first paragraph of which was to the effect that criminal responsibility of an accused did not depend upon his mental age, whether above or below the average of a normal person; that mere weakness of mind, ignorance or deficient mental capacity did not excuse a crime, unless accused’s mentality was such as to render accused incapable of distinguishing between right and wrong.

The second paragraph instructed the jury “that a defendant in a criminal case must prove, by a preponderance, or greater weight of the evidence, that at the time of the commission of a criminal act that the defendant did not know the difference between right and wrong. You are instructed that there has been no evidence on this question introduced by the defendant, and therefore you are not to consider, as an issue in this case, whether or not the defendant, Grace Deyo, at any time during the year 1959, knew the difference between right and wrong.”

The concluding paragraph instructed the jury that “any evidence in the case concerning the mental age, I. Q. or degree of mentality of the defendant, Grace Deyo, is admissible” only for the jurors’ consideration, together with all other facts and circumstances outlined in instruction No. 11 (on the voluntariness of appellant’s statements), in determining whether appellant’s statements were made voluntarily. The State advances the contention that appellant entered only a general objection to all the instructions and has not preserved any error for review. Appellant entered an oral objection to instruction No. 12 and others at the time of submission and followed this by stating in her motion for new trial the specific grounds upon which she relied for error in instruction No. 12. This is sufficient to preserve the issues specified for review. Supreme Court Rule 27.20.

The second paragraph, quoted supra, of the instruction is broad in its terms and subject to criticism. The first sentence would have more properly stated the law had the word “must” been eliminated and the words “in which insanity is interposed as a defense has the burden to prove” been inserted after “a defendant in a criminal case.” The sentence, as worded, tended to put the burden on appellant to prove she did not know right from wrong, although insanity was not an issue; and the next sentence (also quoted) told the jury there was no evidence of and they were not to consider whether appellant knew the difference between right and wrong. We think upon a retrial an instruction involving the defense of insanity need not be given, as appellant contends, and the court could well limit the instruction to the purpose of the evidence adduced on behalf of appellant.

X. At the opening of court, the regular judge presiding, a minister gave an invocation in the presence of the jury panel stating, among other things: “We realize that there are those who commit sin and that they must be punished and ask that we be given the strength to punish them according to Thy will.” Appellant contends that the trial court, in view of the charge against the appellant, should have granted appellant’s request to discharge the jury panel. We need not rule the contention because this situation is not likely to occur upon a retrial. A word of caution to a minister in appropriate instances should be sufficient.

XI. In view of what we have heretofore said it appears unnecessary to set out or rule in detail the contentions preserved for review with respect to the refused instructions requested by appellant, instructions Nos. 14, 16 and 17. The attorney for the State will have an opportunity of reexamining the refused instructions and the instructions given by the State in the light of appellant’s criticisms and our views herein expressed and redrafting them where necessary. Appellant’s refused instruction No. 14 is covered by given instructions Nos. 3, 7 and 8. Instruction No. 8 should be examined in connection with instruction No. 3, ¶ 26 of appellant’s motion for new trial (a point not made in appellant’s brief) and this opinion. Appellant’s refused instructions Nos. 16 and 17, relating to her statements, are covered by given instruction No. 11, subject, however, to our ruling supra with respect to the omission from said instruction No. 11. See ff VIII, supra. Some of the given instructions appear to be favorable to the appellant. We think a transcript should show which of the given instructions were offered by the State, and which, if any, were offered by the accused, including instructions offered by the accused and modified by the court and in what respects such instructions were modified. We do not find this expressly shown in the transcript at bar.

The judgment is reversed and the cause is remanded.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: COIL, Commissioner.

license: Public Domain

text:
    Prett ROLLINS and Elfrida Rollins, Appellants, John Buford POSTLEWAIT, Respondent.
    No. 49049.
    Supreme Court of Missouri, Division No. 1.
    July 16, 1962.
    Louis Wagner, Kansas City, for appellants.
    Sam B. Bartlett, Kansas City, for respondent, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
   COIL, Commissioner.

The parents of 2-year-old Ricky Rollins-sought $25,000 as damages for his alleged wrongful death. Shortly after noon on October 20, 1958, Ricky was killed as the result of being run over by a truck owned and operated by John Postlewait, defendant below. A jury returned a defendant’s verdict. Plaintiffs have appealed, contending that the verdict was contrary to and in conflict with the physical facts and was not supported by substantial evidence; that the trial court erred in giving instruction 6; and. that they were denied a fair trial by reason of the failure of veniremen to answer truthfully on voir dire examination.

Defendant, a farmer, parked his southbound pickup truck on the east side of two-way Forest Avenue in Kansas City approximately in front of a house numbered 1319. The truck’s left front wheel was angled in toward or against the curb and the left rear wheel was one to two feet from the curb. Defendant was engaged in selling eggs. In maneuvering his truck preparatory to driving away from his parked location, one or both the left wheels passed over Ricky’s body.

There were two versions of the facts. One tended to support the evidentiary theory submitted by plaintiffs to the effect that when defendant returned to his truck immediately before moving it, Ricky “was sitting on the east curb of Forest Avenue beside defendant’s truck and that defendant backed said truck upon and over” him although defendant should have seen Ricky sitting there in a position of danger and could have avoided running over him by warning him or by stopping the truck but negligently failed to do so.

The other version of the facts tended to support defendant’s evidentiary theory to the effect that when defendant returned to his truck from the west side of the street there were no children in the area around the truck, including the adjacent curb and parkway and sidewalk; that after defendant started the truck’s motor, he looked out the driver’s window and along the side of the truck and there were no persons visible; that he subsequently looked back over his right shoulder and through the rear glass of the cab which showed the street except that part immediately to the rear which was hidden by the truck itself, and he saw no person. Defendant said that he then turned the front wheels slightly to the right preparatory to backing in order to clear a northbound automobile which had been parked in front of his truck, and that, because his foot was then on the clutch pedal, the truck rolled forward four or five inches; he then let out the clutch pedal and backed six to eight feet at a speed of three or four miles an hour when he felt a vibration and at the same time heard a woman yell that he had run over a baby; he tried to stop the truck immediately but, nevertheless, backed another six feet; he turned off the motor but inasmuch as he still had his foot on the clutch pedal the truck again rolled forward for about two feet until it was stopped. Defendant said the top of the tail gate on his truck, which was up at the time, was 3½ or 4 feet above the ground and Ricky was not that tall.

The essential facts of defendant’s version were corroborated by two witnesses. One was the driver of the car which had been parked in front of the truck, who observed the area immediately before the accident and saw no child or children thereabout until he heard the woman scream and thereafter saw the boy under the truck. The other was a woman sitting on a porch across the street from the truck who was an eyewitness to the casualty. She said that just as the truck started to move, she saw Ricky standing at the rear of the truck on the left side and almost against the tail gate; that the truck backed, knocked the boy to the street and, by the time it stopped, the left rear wheel had passed over the boy and the left front wheel was upon him until the truck rolled forward; and that when the truck finally stopped the body was under the truck’s cab.

Plaintiffs contend in their point 2 that the verdict was contrary to and in conflict with the physical facts and was not supported by substantial evidence, and in point-4 that the verdict and judgment are against the weight of the evidence. We shall consider those contentions together.

As best we understand plaintiffs’ supporting arguments, they seem to contend that inasmuch as the truck was parked on the wrong side of the street headed south in violation of certain ordinances introduced in evidence, and inasmuch as (so plaintiffs say) the truck could have been driven away from its parked position without backing, despite the presence of a car parked in front of it, and because police found blood on the left front tire and none on the left rear tire, and because if defendant’s version of the accident were true the boy’s body necessarily would have been found behind the truck, defendant’s evidence as to how the accident happened was in conflict with physical facts and did not amount to substantial evidence. It seems apparent that those arguments are unsound and the contentions are without merit. It is true that the truck was parked on the wrong side of a two-way street (it shortly theretofore had been one way) in violation of specified ordinances. Plaintiffs hypothesized those violations but did not submit negligence based thereon as a proximate cause and, further and in any event, the parking of the truck on the wrong side of the street and the lack of necessity, if so, for backing the truck could not have affected the substantiality of defendant’s evidence or have tended to have made that evidence contrary to physical facts or unworthy of belief. Plaintiffs’ contention that it was not possible that the accident happened as defendant and supporting witnesses said it did because of the fact that blood was found on the left front tire only, and the argument that if the boy had been behind the truck he would have remained behind the truck and there would have been blood on the left rear tire, are likewise falacious. It was not only possible but probable that if a 2-year-old boy was struck by the left rear of a backing truck he would have been knocked to the street and the left rear wheel might have run over him without getting blood on it, and, as the eyewitness testified, the left front wheel well might have been upon the boy until the truck again rolled forward, thus accounting for the position of the body under the truck and for the blood on the left front tire. It is entirely clear that the jury reasonably could have found that the accident occurred in accordance with defendant’s evidentiary theory. And, in any event, plaintiffs had the burden of proof; consequently, the jury was entitled to pass upon the credibility of plaintiffs’ evidence and thus the defendant’s verdict in this case need not have had evidentiary support. J. D. Streett & Co. v. Bone, Mo., 334 S.W.2d 5, 10 [7]. Whether the jury’s verdict was against the weight of the evidence was a question for the trial court. Elliott v. Wescoat, Mo., 336 S.W.2d 649, 652 [4-7].

Plaintiffs’ verdict-directing instruction 1 hypothesized that when defendant returned to the truck “there were three children playing in plain view on curb and parkway near said truck” and that at the time “defendant got in his truck and began backing it” Ricky “was sitting on the east curb * * * in front of or near 1319 Forest Avenue beside defendant’s truck and that defendant backed said truck upon and over” him, and that defendant saw or in the exercise of commensurate care should have seen Ricky “sitting on said curb and in a position of danger of being struck by said truck” in time to have avoided striking him by warning Ricky or by stopping the truck, and that if defendant negligently failed so to do and as a result of such negligence plaintiffs’ child was killed, etc. (It is true that the fore part of instruction 1 hypothesized the fact that defendant parked his southbound truck on the east or wrong side of the street in violation of specified ordinances but the instruction thereafter ignored the ordinance violations in hypothesizing proximate negligence.)

Defendant’s instruction 6 was: “The court instructs the jury that if you find and believe from the evidence that the deceased infant was not sitting on the east curb of Forest Avenue at the time defendant backed his truck upon and over him, then your verdict must be for the defendant Mr. Postlewait, regardless of any other fact or circumstance shown in evidence.”

Plaintiffs contend the trial court erred in giving that instruction for several stated reasons, but, as we understand the burden of their contention, it is that the instruction permitted no recovery if the jury found that Ricky was not sitting on the curb at the time the truck backed, even though the jury might have believed also that defendant negligently ran over the boy.

Plaintiffs chose by instruction 1 to require the jury to find as prerequisite to a plaintiffs’ verdict that while Ricky was sitting on the east curb of Forest the defendant backed his truck upon and over him. Instruction 6 told the jury that if it found Ricky was not sitting on the east curb at the time defendant backed his truck upon and over him, its verdict would be for the defendant. It is well established that defendant was entitled to such a true converse instruction which exactly conversed an essential element of plaintiffs’ instruction. Schaefer v. Accardi, Mo., 315 S.W.2d 230, 234 [8, 9].

Plaintiffs say they were deprived of a fair and impartial trial because of the alleged failure of veniremen to answer fully on voir dire. As we understand, plaintiffs argue that because they are Negroes, the eleven members of the jury (who we assume were white) who decided for the white defendant, must have been prejudiced against the plaintiffs because of their race, else the jury would have found for plaintiffs. There is no semblance of a basis for any such contention in the record. Plaintiffs’ counsel asked on voir dire whether any panel member was prejudiced because of the fact that Negroes claimed damages against a white defendant. By his silence each panel member indicated he had no such prejudice. As noted, defendant’s verdict was supported by substantial evidence. There was no fact or circumstance giving rise to a possible inference that because of a defendant’s verdict racial prejudice must have existed.

Plaintiffs’ counsel inquired on voir dire whether panel members were acquainted with the various lawyers in defendant’s counsel’s law firm and a juror (later foreman) indicated that he did not know any of those lawyers. Plaintiffs attached an affidavit to their new trial motion to the effect that the foreman did not truthfully answer the question propounded in that he concealed pertinent facts concerning his social relationship with a lawyer in that firm, and that the lawyer and the jury foreman had appeared on the same Shrine program and had attended rehearsals therefor. In a counteraffidavit the juror in question asserted that he did not know the lawyer; that he had been informed that the lawyer was a member of a certain Shrine and was to appear on a certain program; that he had had no connection with the lawyer on the program or at the rehearsals therefor, and had never seen the lawyer to know him; and that the fact that he was on the same program as was the lawyer (along with many others) did not affect the juror’s decision in the case. At a hearing on motion for new trial, plaintiffs’ counsel adduced a copy of the Shrine program which contained the names, among many others, of the lawyer and the juror. No other evidence was adduced.

There is nothing in the record to support plaintiffs’ assertion that the juror concealed pertinent facts and, furthermore and in any event, the trial court reasonably could have found from the affidavits before it that, irrespective of all else, the juror did not intentionally conceal any information on voir dire and thus the trial court did not abuse its discretion in overruling plaintiffs’ motion for new trial on the stated ground. Hornberger v. St. Louis Public Service Co., Mo., 353 S.W.2d 635, 642.

The judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: HOLLINGSWORTH, Judge.

text:
    VILLAGE OF BEL-NOR, a Municipal Corporation, Respondent, v. Alan Lewis BARNETT, Appellant.
    No. 49041.
    Supreme Court of Missouri, Division No. 1.
    July 16, 1962.
    Maurice S. Karner, St. Louis, for appellant, Alan Lewis Barnett.
    Lester W. Spilker, St. Louis, for respondent.
   HOLLINGSWORTH, Judge.

Defendant has appealed from a judgment of the Circuit Court of St. Louis County affirming his conviction in the Chairman’s Court of the Village of Bel-Nor, St. Louis County, for violation of Ordinance No. 134 of said village and assessing his fine at $5.00. That ordinance makes it a misdemeanor punishable by fine of not less than $5.00 nor more than $50.00 for any person to conduct “any solicitation, * * * sales campaign, vending, door to door selling, order taking * * * [involving] use of the street, drives, sidewalks, * * ⅜ within the Village of Bel-Nor, or door to door contact with the residents of the Village * * * unless he * * * has first made application for and received a license for such purpose * * The cost of the license is $15.00, irrespective of whether any sale is made, and it expires 90 days after issuance.

Defendant challenges the validity of that ordinance (as to any act done by him) on grounds it violated Article I, § 8, Cl. 3, of the Constitution of the United States, empowering the Congress “to regulate Commerce * * * among the several States, * * In thus challenging the constitutionality of the ordinance, jurisdiction of the appeal lies in this court. Article V, § 3, Constitution of Missouri, V.A.M.S.

The facts are not in dispute. Defendant, a resident of Newark, New Jersey, is temporarily in the City of St. Louis attending Washington University. On the 24th day of June, 1960, he became a door-to-door solicitor in St. Louis County for Periodical Publishers’ Service Bureau, Inc., (hereinafter referred to as “Periodical”), whose main office and legal residence is and was at the time herein material in Sandusky, Ohio. However, on June 24, 1960, and prior thereto it had maintained a branch office in the City of St. Louis, as it did in numerous cities. Defendant’s duties consisted of door-to-door solicitation of subscriptions to magazines for future delivery, many of which were of general circulation throughout the United States, but none of which was published in or delivered from any point in Missouri.

Orders taken by defendant and signed by the subscriber were addressed to Periodical at its home office in Ohio. The magazines ordered and the prices thereof were listed on the face of the order. Each subscription ran for a term of 36 months. The subscriber made a down payment of about three percent of the total of the amount of the subscription price at the time the order was signed and agreed to pay the remainder of the subscription price in 24 monthly installments; nothing was to be paid thereafter. The order was expressly conditioned upon its approval by the home office. When defendant procured such an order, he forwarded it to Periodical’s branch office in the City of St. Louis, where it was “processed”, that is, checked for its genuineness and for ascertainment of the subscriber’s understanding of its terms. If approved at the branch office, it was forwarded from the branch office to the home office, where it was finally approved or rejected. If approved, Periodical, from its home office, sent an order to the publisher or publishers of the magazines ordered, the price of which Periodical agreed to pay to the publisher in accordance with a prior arrangement made with the publisher. Each publisher thereafter sent directly by mail to the subscriber the magazine or magazines ordered by the subscriber. Periodical thereafter collected the purchase price from the subscriber in accordance with the terms of the subscription. Defendant’s compensation for orders taken by him was strictly on a commission basis paid by Periodical through its St. Louis branch office, subject to credit of the down payment made by the subscriber when the order was signed.

On the day of defendant’s arrest, he had made several door-to-door solicitations in the Village of Bel-Nor but had not, when arrested, obtained any orders. He had no license and, in fact, had no knowledge of the ordinance until he was so advised by the arresting officer.

We have been cited to no case nor have we found one that casts any doubt upon the fact that solicitation of orders made under the circumstances here shown constitutes interstate commerce. Many cases, both state and federal, from Missouri and elsewhere, unhesitatingly characterize the facts here shown to constitute interstate commerce and to place an undue burden upon solicitors engaged in interstate commerce and to render invalid ordinances such as the one here challenged under Article I, § 8, Cl. 3, of the Constitution of the United States. Olan Mills, Inc. v. City of Cape Girardeau, 364 Mo. 1089, 272 S.W.2d 244, and the many cases therein cited; Superior Concrete Accessories v. Kemper, Mo., 284 S.W.2d 482; Nippert v. City of Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760; Real Silk Hosiery Mills v. City of Portland, 268 U.S. 325, 45 S.Ct. 525, 69 L.Ed. 982; Town of Green River v. Fuller Brush Co., U.S.C.A., 10 Cir., 65 F.2d 112, 88 A.L.R. 177; City of Alexandria v. Breard, 217 La. 820, 47 So.2d 553; Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; City of California v. Riback, Mo., 204 S.W. 389; Fleming v. City of Mexico, 262 Mo. 432, 171 S.W. 321; Jewel Tea Co. v. City of Carthage, 257 Mo. 383, 165 S.W. 743.

Despite the facts shown in the instant case and the general unanimity with which the state and federal courts have held facts analogous to those here presented clearly to constitute unconstitutional interference with interstate commerce, plaintiff contends that defendant was not engaged in interstate commerce and insists that he is subject to the licensing ordinance here in question. In support of that contention plaintiff cites City of Eldorado Springs v. Highfill, 268 Mo. 501, 188 S.W. 68; and City of Brookfield v. Kitchen, 163 Mo. 546, 63 S.W. 825, involving licensing ordinances similar to the Bel-Nor ordinance here challenged by defendant. A detailed recital of the facts in those cases would unduly lengthen this opinion. Suffice it to say that the facts there shown are clearly distinguishable from those here shown. In each of those cases it was pointed out that the facts did not constitute interstate commerce. Indeed, in the City of Eldorado Springs case the court precisely pointed out wherein the facts in those cases distinguished them from the cases of Fleming v. City of Mexico, 262 Mo. 432, 171 S.W. 321, and Jewel Tea Co. v. Carthage, 257 Mo. 383, 165 S.W. 743, both of which are above cited and both of which hold that facts analogous to those here shown constitute an unconstitutional interference with interstate commerce.

Plaintiff also cites the case of McGoldrick v. Berwind-White Coal Mining Co., 309 U. S. 33, 60 S.Ct. 388, 84 L.Ed. 565, 128 A.L.R. 576. The facts in that case are extremely lengthy. Suffice it to say that the case involved a New York City uniform tax ordinance to be distinguishable from licensing tax ordinances, such as in this case. The gist of the conclusions there reached was that the New York City sales tax which is conditioned on delivery of goods within the state on their purchase for consumption is conditioned on a local activity which, apart from its effect on interstate commerce, is subject to the state taxing power, and the effect of the tax, though measured by the sales price, does not invalidly discriminate against or obstruct interstate commerce as against contention that, because the tax is measured by gross receipts from interstate commerce, it in effect reaches commerce carried on both within and without New York state. The case is not in point on the question here involved, as has been pointed out in numerous later cases.

Plaintiff also cites cases dealing with city ordinances that have become widely known as “Green River Ordinances”, taking their name from the case in which their validity was first challenged. (We have herein-above also cited them in support of the conclusion herein reached that the licensing tax here challenged constitutes an unconstitutional interference with interstate commerce under the facts here shown.) Those cases are: Town of Green River v. Fuller Brush Co., U.S.C.A., 10 Cir., 65 F.2d 112, 88 A.L.R. 177; City of Alexandria v. Breard, 218 La. 820, 47 So.2d 553; Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233. (An earlier [1947] case of Breard v. City of Alexandria, D.C., 69 F.Supp. 722, is also cited, but it is to the same effect as the later Breard cases and need not be herein discussed.)

The Town of Green River case originated in the U. S. District Court, 60 F.2d 613. In that court the Fuller Brush Company enjoined the Town of Green River, Wyoming, from enforcing an ordinance declaring: “Section 1. The practice of going in and upon private residences in the Town of Green River, Wyoming, by solicitors, peddlers, hawkers, itinerant merchants and transient vendors of merchandise, not having been requested or invited so to do by the owner or owners, occupant or occupants of said private residences, for the purpose of soliciting orders for the sale of goods, wares and merchandise, and/or for the purpose of disposing of and/or peddling or hawking the same, is hereby declared to be a nuisance, and punishable as such nuisance as a misdemeanor.” (Note that no license tax is required or involved.) The second section thereof requires its enforcement by the town marshal and makes it his duty to suppress and abate any such nuisance. The third section subjects any person convicted of such a nuisance to a fine of not less than $25 or more than $100.

The Town of Green River appealed to the U.S.C.A. of the Tenth Circuit. There Fuller Brush again contended that enforcement of the ordinance would deprive it of its property without due process of law, deny it equal protection of the law, and would interfere with interstate commerce in violation of the U. S. Constitution. The court noted, 65 F.2d 112, 114: “[T]he ordinance here under consideration did not attempt to prohibit any of the parties named from selling their wares, either of goods carried with them or on samples for future delivery. It denounces a particular practice of such vendors or their agents. We must assume that the practice existed in the town as the first section states, and that it had become annoying and disturbing and objectionable to at least some of the citizens. We think like practices have become so general and common as to be of judicial knowledge, and that the frequent ringing of doorbells of private residences by itinerant vendors and solicitors is in fact a nuisance to the occupants of homes.” And the court, after further elaboration of the purpose of and justification for the regulation of such intrusions upon the privacy to which homeowners are entitled, concluded, loe. cit. 115: “We are also of opinion that the ordinance and its enforcement would not encroach directly or indirectly on appellee’s constitutional rights, nor interfere with interstate commerce. It does not purport to interfere in any respect with appellee’s right or privilege of selling and transporting its wares in interstate commerce. It is free to carry on a business of that sort except to solicit orders in the manner specified in the ordinance, and obviously it could do so in many ways other than imposing itself upon and disturbing the residents of the town as prohibited by the ordinance.”

In Breard v. City of Alexandria, 1951, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233, the United States Supreme Court considered an ordinance of that city identical in substance with the Green River ordinance. There Mr. Justice Reed, speaking for a majority of the court, referred at length to the observations made in the Green River case. He was careful to concede, however, that solicitors of orders for subsequent interstate shipment were’ immune from licensing fees because of their interference with interstate commerce (citing cases); that this immunity was based upon the theory of protection of interstate commerce against discrimination made most apparent by fixed sum license fees regardless of sales (citing McGoldrick v. Berwind-White Coal Mining Company, supra, 309 U.S. 33, 60 S.Ct. 388, 84 L.Ed. 565 and other cases). He, however, went on to state, 71 S.Ct. loc. cit. 931, that where state legislation was not an added burden upon sales in interstate commerce or an exaction for the privilege of doing interstate commerce, but was merely a regulation of local matters, different considerations applied; and he then concluded, loe. cit. 931: “We think Alexandria’s ordinance falls in the classification of regulation. The economic effects on interstate commerce in door-to-door soliciting cannot be gainsaid. To solicitors so engaged, ordinances such as this compel the development of a new technique of approach to prospects. Their local retail competitors gain advantages from the location of their stores and investments in their stock but the solicitor retains his flexibility of movement and freedom from heavy investment. The general use of the Green River type of ordinance shows its adaptation to the needs of the many communities that have enacted it. * * * ”

In a dissent written by Mr. Justice Vinson (concurred in by Mr. Justice Douglas), he insisted that despite the fact that the ordinance exacted no license fees, it yet constituted an interference with interstate commerce in violation of the Constitution. In the argument of that point, the dissenting opinion so tersely emphasizes the uniform holding of immunity of solicitors engaged in interstate commerce from license taxes that we quote therefrom, loc. cit. 934: “At least since the decision in Robbins v. Shelby County Taxing District, 1887, 120 U. S. 489, 497, 7 S.Ct. 592, 596, [30] 20 L.Ed. 694, this Court has regarded the process of soliciting orders for goods to be shipped across state lines as being interstate commerce as much as the transportation itself. Under the line of cases following this principle, reexamined and reaffirmed in Nippert v. Richmond, 1946, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760, the process of solicitation for interstate commerce cannot be subjected to taxes, licenses or bonding requirements that in their practical operation discriminate against or unduly burden interstate commerce. The Court does not today purport to overrule this line of decisions. * * * Nor does the opinion dispute that this ordinance has a severe economic impact upon the substantial interstate business of appellant’s employer, as well as the entire magazine industry which derives 50% to 60% of its annual subscription circulation from the very type of solicitation prohibited by this ordinance. I disagree with the Court in its'holding that an ordinance imposing a ‘blanket prohibition’ can be sustained under the Commerce Clause as mere regulation.”

The reasoning in the cases above cited in-behalf of the contentions made by both of the parties in the instant case leads us to the conclusion that the ordinance here challenged is, as to the activities of this defendant, violative of Article I, § 8, Cl. 3, of the Constitution. (In so deciding, we should note that plaintiff also cited the case of Dunston v. City of Norfolk, 177 Va. 689, 15 S.E.2d 86, decided in 1941 prior to the decision in the Breard case, supra, which was decided in 1951. In that case a resident of the city with a fixed place of business therein acted as a “local representative” of a foreign tailoring company. The ordinance required all retail merchants to pay a (so-called) “license tax”, the amount of which was based upon his gross sales. It may or may not be construed as being in conflict with the decisions upon which this opinion is based. Two of the judges dissented upon grounds that it was. Assuming it to be not only in conflict with the Missouri cases but with the federal cases above cited, we think it can in no wise be considered persuasive.)

Finally, plaintiff says that defendant did not timely raise the issue of unconstitutionality. In that assertion, plaintiff overlooks the facts shown in the record. As soon as the Village closed its evidence in chief at the trial in the Chairman’s Court of the Village of Bel-Nor, the defendant orally challenged the constitutionality of the ordinance and at the close of all of the evidence in that court moved for dismissal of the case on the grounds of its unconstitutional interference with interstate commerce. Immediately following rendition of the judgment in the Chairman’s Court, defendant moved to set aside the verdict and for entry of judgment in his favor on the same grounds. At the trial in the Circuit Court, it was stipulated that it was the intention of the parties to submit the whole case on the transcript of the record made in the Chairman’s Court, without objection except for those offered at the original trial as they appear in the transcript of the evidence; and the case was so tried and submitted. On March 7, 1961, the trial judge (of the Circuit Court, having tried and considered the case upon the record made in the Chairman’s Court) entered judgment as stated. On March 7, 1961, defendant filed “motion to set aside judgment and enter judgment in favor of defendant or grant defendant a new trial.” One of the grounds asserted therein was that “the Court erred in rendering a judgment in favor of the plaintiff for the reason that the ordinance under which defendant was convicted is in violation of Section 8, Article I of the United States Constitution and the decisions of the United States Supreme Court.” Thereafter, ninety days elapsed without any ruling thereon by the court and the motion was, therefore, deemed overruled for all purposes. S.Ct. Rule 78.04, V. A.M.R. Defendant appealed. Plaintiff’s contention that defendant did not timely challenge the constitutionality of the ordinance is also without merit.

For the reasons herein stated, the judgment is reversed.

All concur.


author: STOCKARD, Commissioner.

text:
    James DOYLE, a Minor, by Next Friend, Charles Doyle, Respondent, v. Harry WILMESHERRER, Appellant.
    No. 48883.
    Supreme Court of Missouri, Division No. 2.
    July 16, 1962.

      Alexander & Robertson, Ernest E. Baker, Leo C. De Voto, Jr., St. Louis, for appellant.
    John W. Waller, Sullivan, G. C. Beck-ham, Steelville, for respondent.
   STOCKARD, Commissioner.

Defendant has appealed from a judgment in the amount of $18,000 in favor of plaintiff for personal injuries resulting in the amputation of his left foot. We refer to the parties as designated in the trial court.

Plaintiff was 17 years of age when injured and 19 years of age at time of trial. He had not completed the eighth grade in school. For the most part his testimony consisted of “yes” and “no” answers given to leading questions on both direct examination (without objection) and on cross-examination. Defendant did not testify and he offered no evidence. Plaintiff was the only witness who testified to the circumstances leading up to or resulting in his injury. Therefore, our statement of the evidence consists principally, but not entirely, in relating the substance of leading questions to which plaintiff gave either a “yes” or “no” answer.

After working for defendant shelling corn plaintiff rode in defendant’s three-quarter ton truck to Cuba, Missouri, and to the Cuba Feed and Grain Company where the loaded truck was weighed. Defendant drove the truck to the north side of the building to unload it, and to do so he intended to operate or drive the truck backward up a ramp or an inclined driveway into a hallway or passageway where the grain could be shoveled into a bin. Defendant told plaintiff to go up “there,” apparently referring to the top of the incline, to direct him in the" operation of the truck. Plaintiff walked up the driveway and stood in the hallway, on the side, right by the silo back against a post. He was “out of the traveled portion of the hallway.” Defendant’s truck had a flat bed with sideboards to hold grain. The bed was wider than the cab, and the only way one in the cab could see to the rear of the truck was to look back over his right shoulder and out of the window in the rear of the cab. It was difficult to see “in the window” of the cab because of the sideboards. Plaintiff could not see defendant in the truck “all of the time.” Defendant had difficulty in backing the truck up the incline because the driveway was “kind of muddy.” On the first attempt the truck “slid” and did not stay “in the lane.” On the second attempt it again “slid” and “stopped right on the incline.” Apparently it was on the third attempt that plaintiff was injured. On direct examination plaintiff said that the truck “got crossways and came over and pinned me against that post.” On cross-examination, without first asking whether or not the truck skidded or slid, counsel for defendant asked plaintiff if he jumped to the right “when you saw the truck skidding toward you,” and plaintiff answered “No.” He then asked plaintiff which way he moved “when you saw the truck sliding,” and plaintiff answered “Here.” In the cross-examination that followed these questions were asked and answers were given:

“Q. Jim, when you saw that truck backing up you didn’t get out of the way; you didn’t expect it to slide, did you?
“A. No.
“Q. There was nothing that happened that gave you any indication the truck was likely to slide, isn’t that right ?
“A. Yes.
⅜ ⅜ ⅜ ⅜ ‡ ⅜
“Q. It slid on the mud, did it, Jim?
“A. Yes.
“Q. Then it came into you?
“A. Yes.
“Q. Jim, how far away from you was it when it started to slide?
“A. I don’t know.
* * * * * *
“Q. It came back the direction it was supposed to be going towards the window ?
“A. Yes.
“Q. All of a sudden it just started to slide toward you?
“A. Yes.”

Plaintiff was then asked on redirect examination the following questions and he gave the following answers:

“Q. James, you said the first two times the truck tried to come up the incline it was sliding. Do you mean that the wheels were spinning going up the hill?
“A. Yes.
“Q. Did it stay in the traveled portion both times? * * *
“A. Not the first time.
“Q. How about the second time?
“A. It stayed in it.
“Q. Were the wheels just spinning?
“A. Yes.”

It is noted that the questions and answers on redirect examination apparently do not refer to the third attempt to back the truck up the incline, and if we interpret the evidence correctly, it was on the third attempt that plaintiff was injured.

Defendant’s first point on this appeal is that the trial court erred in denying his motion for a directed verdict “because plaintiff failed to prove that defendant committed any act of negligence alleged in [his] petition * * Plaintiff abandoned all pleaded theories of negligence not submitted, Stroh v. Johns, Mo., 264 S.W.2d 304, and it has long been the rule that a petition will be treated as amended to conform to the evidence which was admitted without objection. Gooch v. Lake, Mo., 327 S.W.2d 132, 134; Dawley v. Hoy, Mo., 341 S.W.2d 111, 115; Civil Rules 55.54 and 74.30, V.A.M.R. Our subsequent discussion in connection with the alleged error in plaintiff’s verdict-directing instruction will demonstrate that the evidence clearly establishes a submissible case. The motion for a directed verdict was properly overruled.

Instruction No. 1, in its material parts, hypothesized that the defendant was driving and operating his truck in reverse gear up an incline and into a driveway on the premises of the Cuba Feed and Grain Company; that he “knew that the plaintiff was in or near the driveway immediately behind said truck;” that “the defendant did then and there negligently drive said truck in reverse gear up said incline without keeping a lookout for persons behind and to-the left of said truck, and especially this plaintiff;” and “that at said time and place the defendant then and there drove and guided said truck in such a negligent manner that said truck did not stay in the center and traveled portion of said driveway, and that defendant negligently permitted said truck to travel to the extreme west edge of said driveway, and west of the traveled portions of said driveway, if you so find, and thereby caused said truck to strike and collide with plaintiff, if you so find; and * * * that as a direct and proximate result of said collision, * * * the plaintiff sustained a bodily injury,” then the jury should find for plaintiff.

Defendant first contends that this instruction ignores the admitted fact of skidding, and that evidence of mere skidding alone does not make a submissible case. This latter contention is true if there is “nothing more” than skidding, Evans v. Colombo, Mo., 319 S.W.2d 549, 550, or the evidence shows that skidding “is the ‘sole factual cause.’ ” Rodefeld v. St. Louis Public Service Company, Mo., 275 S.W.2d 256, 258. The evidence in this case shows that the immediate cause of plaintiff’s injury was that the truck slid or turned sideways and struck him, but the evidence shows more than mere skidding as the factual cause. Defendant knew plaintiff was back of his truck, and he had twice tried unsuccessfully to back the truck up the muddy incline but could not because it spun its wheels and on one occasion slid or skidded out of “the lane.” Therefore, a jury could reasonably find that defendant was negligent in attempting to back the truck up the incline the third time when he knew of plaintiff’s presence and when he knew or should have known of the likelihood of it skidding or sliding sideways. In addition, the jury could also find that defendant was negligent in the operation of the truck by causing the wheels to spin when he knew or should have known that spinning the wheels would likely cause the truck to slide or move sideways. We do not purport to say that the above two theories are the only basis on which negligence on the part of defendant could be found by the jury, but they are supported by the evidence, and if properly submitted could be found by the jury to be the proximate cause of plaintiff’s injury.

We shall now look to the substance of the instruction. The first conjunctive submission is based on the failure to maintain a lookout to the rear and to the left of the truck. We question the propriety of a lookout instruction under the meager evidence. The evidence indicates, other than by resort to speculation, that defendant could not see to the rear of the truck. In that event, disregarding the issue of skidding, the proper submission would have been that defendant was negligent in moving his truck backward where and when he could not see. Also, the evidence on behalf of plaintiff, which is the only evidence in the case, clearly shows that the defendant knew where the plaintiff was. In fact, the instruction contained that hypothesis. A proper lookout on the part of defendant would have revealed nothing that he did not already know, and the failure to maintain a lookout in that circumstance could hardly be the proximate cause of plaintiff’s injury. As we shall show in our discussion of the second conjunctive submission of negligence in the instruction, the essential factual issue in this case was the skidding or sliding of the truck and whether that was the result of defendant’s negligence. Assuming, however, that a lookout instruction was proper, the submission contained in Instruction No. 1 was erroneous because there was no hypothesis of a causal connection between failure to maintain a lookout and plaintiff’s injury. In a primary negligence case it is necessary that the verdict-directing instruction hypothesize facts supported by the evidence from which a jury is authorized to find that the defendant not only was negligent, but that such negligence directly caused the plaintiffs injuries. Fortner v. St. Louis Public Service Co., Mo,, 244 S.W.2d 10; Anderson v. Bell, Mo., 303 S.W.2d 93. See the comment in Missouri Civil Instructions, § 9.12, published by the Missouri Bar. Here, the only hypothesis of causation is set off by semicolons in such a way that it is limited to the second conjunctive submission of negligence. When analyzed, the “lookout” submission in Instruction No. 1 is no more than the abstract statement that “defendant did * * * negligently drive said truck * * * without keeping a lookout * *

We turn now to the second conjunctive submission. When analyzed it submits that “defendant * * * drove and guided said truck in such a negligent manner that [it] did not stay in the center and traveled portion of the driveway,” and that he “negligently permitted said truck to travel to the extreme west edge of said driveway * * * and thereby caused said truck to strike * * * the plaintiff.” This submission ignores the factual element of the truck sliding or moving sideways, and it does not hypothesize the necessary facts from which the jury could find the negligence of defendant which proximately caused plaintiff’s injuries. The fact that the truck left the center portion of the driveway and went to the west edge thereof does not of itself demonstrate negligence, and it is totally insufficient to submit abstractly that defendant “negligently” drove and guided the truck or permitted it to leave the center portion and go to the west edge of the driveway. The applicable rules pertaining to the submission of negligence in a factual situation such as we have here are clearly and succinctly set out in Evans v. Colombo, Mo., 319 S.W.2d 549. This case is not one of “mere skidding” only, but like the instruction in the Evans case the instruction here ignores the evidence of skidding or sliding upon which the submission of negligence must be premised. The truck was moving in the direction it was “supposed to be going.” Plaintiff was not in the “traveled portion” of the driveway, and all of a sudden it started to slide and it then struck plaintiff. The reason the truck hit him is because it moved, skidded, or slid sideways. Trucks are not driven or guided sideways, and if they move in that direction and injure someone the facts must be hypothesized from which the jury may find that the cause of that movement was negligence. In view of the complete analysis in the Evans case of the rules applicable to this case we need not restate them here, but we must necessarily conclude that Instruction No. 1 was prejudicially erroneous for the reason that it ignores the element of skidding, and it does not hypothesize the necessary facts from which the jury could find that the cause of the truck leaving the center or traveled portion of the driveway and striking plaintiff was some negligent act of defendant.

The remaining contention of error pertains to the argument by plaintiff’s counsel that defendant did not introduce any evidence. The issue may or may not arise on retrial. If it does counsel may be guided by the rule announced in Brawley v. Esterly, Mo., 267 S.W.2d 655; Johnson v. St. Louis Public Service Co., Mo.App., 256 S.W.2d 308; and Smith v. Kansas City Rys. Co., 208 Mo.App. 139, 232 S.W. 261.

For the prejudicial error in Instruction No. 1 the judgment is necessarily reversed and the cause remanded.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    LIBERTY TOWNSHIP OF STODDARD COUNTY, Missouri, Respondent, v. Dennis TELFORD and John A. Short, Appellants.
    No. 49142.
    Supreme Court of Missouri. Division No. 1.
    July 16, 1962.
    Riddle, Baker & O’Herin, Veryl L. Riddle, Charles H. Baker, Edward F. O’Herin, Malden, for appellants.
    Arnold & Trammel, Dexter, for respondent.
   COIL, Commissioner.

Liberty Township of Stoddard County obtained a judgment enjoining defendants from interfering with the public use of a road and requiring them to remove obstructions therefrom. Defendants’ appeal to the Springfield Court of Appeals was transferred here because this court has exclusive appellate jurisdiction for the reason that plaintiff was a political subdivision of the state. Liberty Township of Stoddard Co. v. Telford, Mo.App., 349 S.W.2d 704; Art. V, § 3, 1945 Mo. Const., V.A.M.S.

The trial court’s judgment was based upon its finding that plaintiff had expended public money and labor on said road for more than ten consecutive years and plaintiff, respondent here, seeks to justify that judgment on the ground that the evidence showed that the road in question had become “legally established” pursuant to these provisions of Section 228.190 RSMo 1959 and V.A.M.S., “ * * * and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; * * Appellants contend that the evidence did not show public user for ten years or the expenditure of public money or labor for that period.

The sole question on this appeal, therefore, is whether the evidence showed that the road in question had become a legally established road within the meaning of the above-quoted statutory provisions.

The road, one-half mile in length, is located in the southwest quarter of Section 16 of Liberty Township and runs north-south between an east-west road on the north and a road running west on the south. There is no dispute about the fact that the road is located upon an abandoned railroad bed and has been in existence since 1928. Since the fall of 1959, the road has been wide enough for two lines of traffic.

There is sufficient substantial evidence in the record to justify the conclusion that the road had been used “by the public for ten years continuously.” One witness testified that he had used the road since its origin in 1928 and had observed it being used by others. Others had been using the road since 1933. There was considerable evidence in the record with respect to the establishment and maintenance of gates at the road’s north and south ends. Defendants’ evidence was that the gates were installed in the 1940’s. Suffice to say that a review of the evidence with respect to the gates shows clearly that while the present owner of the adjacent land has, since 1954,. attempted to treat the roád as a private one, former owners installed and used the gates-to keep cattle within the area of the adjacent land -and did not use the gates to prevent use of the road by members of the traveling public. Consequently, there was no interruption of the public use of the road from 1928 to 1954.

More difficult of determination is the question whether plaintiff sustained its burden to show that there had been “expended public money or labor” on the road for a period of ten years. The courts of this state, in construing the pertinent language of the above-quoted section (228.190) have held that to show compliance with the requirement that public money or labor shall have been expended for ten years “continuously” does not require proof of the constant expenditure of money or labor or the expenditure of either money or labor every year for an entire 10-year period, but that there has been compliance when public money or labor has been expended from time to time during any 10-year period, sufficient to maintain the road in reasonably good condition for public travel. The court of appeals in State ex rel. Carter County v. Lewis, Mo.App., 294 S.W.2d 954, 957 [1-3], expressed the consistently reiterated applicable principles in this manner: “To establish a public road under the quoted statutory provision, it is not necessary to prove constant expenditure of public money or labor or, for that matter, expenditure thereof 'each and every year for such 10-year period’ [Garbee v. St. Louis-San Francisco Ry. Co., 220 Mo.App. 1245, 1256, 290 S.W. 655, 658]; but, it is sufficient to show that the expenditure of public money or labor began and ‘continued from time to time for the period of limitation, as (reasonably) might be considered necessary or expedient by those in authority’ [State v. Macy, 72 Mo.App. 427, 432; State v. Kitchen, 205 Mo.App. 31, 37, 216 S.W. 981, 983] and that such expenditure was sufficient to maintain the road ‘in substantial repair and condition for * * * public travel.’ State v. Kitchen, supra, 216 S.W. loc. cit. 984.” See also Jenkins v. German, Mo.App., 298 S.W.2d 486, 488[2, 3].

Nineteen witnesses testified as to their knowledge of the origin, use and maintenance of the road. But the evidence relating specifically to the expenditure of public money or labor was not extensive. There follows a summary of the testimony which fairly may be considered as tending to show the expenditure of public money or labor on the road in question.

Sylvester Chase said that after the railroad ties had been removed in 1928, two men, Hallmark and Williams (not public employees), harrowed the abandoned railroad bed; that in 1933 and 1934 the witness and one Kilmer, working for the township at the time, went over the road with a grader. George Miller testified that in 1942,-1943, and 1944 he graded the road for Liberty Township. Elzie Smith testified that about 1943 he was an employee of the township and, along with a Mr. Mullins, a road commissioner, put in a wood culvert or bridge. Hiram Fields testified that he graded the road as an employee of Liberty Township in 1954 or 1955, or in 1954 and 1955. In the fall of 1959, probably in October, the township had graded the road and placed two hundred yards of gravel on it and put in a “tin horn” where formerly there was a culvert. Herbert Gaines testified on behalf of plaintiff that he had been a trustee of Liberty Township since 1954 and all that had been done on the road by the township since then was the 1959 work above described; that the township had attempted to have the road worked at times since 1954 but Mr. Short, the then owner of the property through which the road ran refused to permit them to grade or maintain the road; and that since 1954 the only township money spent on the road was that spent in the fall of 1959.

It appears from the foregoing that for the 12-year period from 1933 through 1944 there was public labor expended on the road in that the township worked thereon in 1933 and 1934 and in 1942, 1943 and 1944. It is true that there was a period of seven years in the middle of that 12-year period during which, so far as the evidence shows, no public work or money was expended. As we have heretofore noted, it was not necessary that public money or labor be expended each year for any entire 10-year period, but the statute as construed heretofore does require that the road must have been kept in substantial repair for public use during one continuous 10-year period as a result of public labor or money expended. Sellers v. Swehla, 364 Mo. 285, 261 S.W.2d 26, 35. In determining whether the evidence in this case meets the statutory standard, we take into account the fact that the evidence showed that the road in question was traveled largely by hunters and fishermen, and that it did not lead to any populous area. It would seem reasonable to say that to maintain this road in substantial repair for public travel would not require the same amount or type of labor and money that would be required to keep a heavily traveled road in substantial repair for public use. Thus, while the evidence in this case indicates that labor expended on the road was at the beginning and toward the end of a 10-year span, still we are of the view that, taking into account the type of road involved and recognizing that there was testimony that members of the public did in fact travel the road during the 10-year period in question, plaintiff sustained its burden to show that the road was kept in substantial repair for public use for a continuous period of ten years as a result of public labor expended during that time. Thus, the evidence supports the view and we hold, as did the trial court, that the road had become a legally established road pursuant to the provisions of Section 228.-190, supra. Cf. State v. Lewis, supra, 294. S.W.2d 957, and Jenkins v. German, supra, 298 S.W.2d 489.

Once the road had become legally established as a public road the right to use : it as a public highway became vested and, absent vacation or abandonment, such right •could not thereafter be divested. State v. Lewis, supra, 294 S.W.2d 958. There was no contention below and there is none here that the road had been abandoned by nonuser or that it had been vacated.

Defendants’ argument that the judgment should be reversed because plaintiff’s petition did not specifically allege that public money or labor had been expended on the road for a period of ten years is without merit. Assuming the petition was deficient in the respect noted, it is now considered to have been amended to conform to the evidence. Supreme Court Rule 55.54, V.A. M.R., p. 186.

The judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.