author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Paul Wilbur DUNLAP, Appellant.
    No. 51822.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Edward P. McSweeney Sp. Asst. Atty. Gen., Clayton, for respondent.
    Robert G. Duncan, Lewis E. Pierce, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
   WELBORN, Commissioner.

Paul Wilbur Dunlap appeals from a judgment and sentence of the Grundy County Circuit Court of two years’ confinement by the Department of Corrections upon a jury’s finding of guilty of “obtaining money by bogus check.”

According to Larry Hennier, who testified for the state, he, Dunlap and a third man drove from Jackson County to Trenton, Missouri, on October 7, 1964, to cash “payroll” checks. Hennier stated that he saw Dunlap write a check, purporting to be a payroll check of the Rinehart Construction Company of Chillicothe on the Citizens National Bank of Chillicothe, payable to Martin Howard in the sum of $96.37. Hen-nier testified that Dunlap signed the name “Darrel Rinehart” to the check and that Hennier then took the check to the IGA Foodliner in Trenton and cashed it after endorsing the name “Martin Howard” on the back of the check. Hennier subsequently divided the proceeds with Dunlap and the third participant in the scheme.

The comanager of the IGA Foodliner identified Hennier as the person who came to the store and requested him to cash the check in question. He stated that Hennier said that he had been working for a construction company in Chillicothe and that he was planning to move to Trenton and needed to cash the check because of trouble with his automobile.

The cashier of the Citizens National Bank of Chillicothe testified that, on October 6, 1964, there was no account in that bank in the name of the Rinehart Construction Company. The only other evidence directly relating to the offense was the testimony of a highway patrol expert that the signature on the check in question was in the handwriting of Dunlap.

Dunlap testified in his own behalf that he went to Trenton with Hennier on the day in question, but that he knew nothing about the preparation or cashing of the check.

On this appeal, appellant attacks the information by which he was charged as duplicitous because it charges both the obtaining of money by a “bogus” check and by a “no funds” check. No objection to the information on this ground was raised in the trial court. Such objection may not be raised for the first time in this court. State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, 204 [7, 8]. Omitting surplusage, the information does contain the substantive elements of the offense of obtaining money with intent to cheat and defraud by means of a bogus check as defined by § 561.450, RSMo 1959, V.A.M.S.

Appellant contends that the verdict is fatally defective because it is unresponsive to the information. The verdict found the defendant “guilty of obtaining money by gous [bogus] check as charged in the Information.” We have held that the information sufficiently charged the offense of obtaining money by fraud and deceit by means of a bogus check, and the verdict is responsive to such charge.

Appellant’s next complaint is that the trial court failed to instruct on the weight and consideration to be accorded the testimony of the self-confessed accomplice, Hennier. Appellant offered no instruction on this subject. Therefore, the failure of the trial court to instruct on this “matter being collateral to the main issue” is not grounds for error. State v. Rizor, 351 Mo. 137, 171 S.W.2d 710, 712 [7-10]. See also State v. Rutledge, Mo.Sup., 267 S.W.2d 625, 626 [5, 6]; State v. Garton, Mo.Sup., 371 S.W.2d 283, 288 [3, 4],

Appellant finally contends that the conviction is not supported by substantial evidence because there was no proof that the check was bogus or that it was unpaid. The evidence clearly was sufficient to establish that the check was bogus. The state’s evidence showed that defendant signed the name of “Darrel Rinehart” to the check which purported to have been drawn on the account of the Rinehart Construction Company in the Citizens National Bank of Chillicothe. The state showed that there was no such account in that bank. Such evidence was sufficient to prove that the check was bogus. State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, 205 [12]. The fact that the check was unpaid would necessarily follow from its bogus status.

The state was not required to prove that Darrel Rinehart, the purported signer of the check, did not have an account in the Citizens National Bank of Chillicothe. The check purported to be drawn on the account of the Rinehart Construction Company, so that the situation here is the converse of that presented in State v. Robinson, Mo.Sup., 255 S.W.2d 811, relied upon by appellant. State v. Scott, Mo.Sup., 230 S.W.2d 764, is of no assistance to appellant. There the fatal shortcoming of the state’s evidence was failure to show whether or not the bank on which the check was drawn was existent or nonexistent, and, if existent, the status of the account, if any, of the drawee of the check. State v. Euge, Mo. Sup., 400 S.W.2d 119, relied upon by appellant, is not in point. Euge had a bank account in the fictitious name by which he signed the check. Here the bank on which the check was drawn had no account in the name of the purported drawee.

The judgment and sentence is in proper form. Supreme Court Rule 28.02, V.A.M.R.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: DONNELLY, Judge.

license: Public Domain

text:
    Elbert F. SPENCER, Respondent, v. VILLAGE OF DeKALB, Missouri, a Municipal Corporation, Appellant.
    No. 51948.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.

      R. A. Brown, St. Joseph, Brown, Douglas & Brown, St. Joseph, of counsel, for respondent.
    Clem W. Fairchild, Herbert M. Kohn, Kansas City, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel, for appellant.
   DONNELLY, Judge.

This is a suit under the Declaratory Judgments Act, §§ 527.010 to 527.140 RSMo 1959, V.A.M.S. Plaintiff Spencer, in his petition, alleges that he is a resident, property owner, and taxpayer in the Village of DeKalb, Missouri. Defendant is the Village of DeKalb.

In 1962, the Village of DeKalb suffered a disastrous fire which could not be controlled because the Village did not have a water system. After the fire, two men, Lamb and Audsley, contacted the Village officials about a water system. Feasibility studies were entered into and, as a result, a proposal was made to obtain water from the Missouri River Bottoms west of De-Kalb and to serve DeKalb and various other communities and users in the area. The estimated cost of the system was $505,000. In due time an election was held in the Village of DeKalb, pursuant to ordinance, and a revenue bond issue was carried. Revenue bonds in a total amount of $505,000 were sold. A check for $505,000 was delivered to the Village officials and was deposited in a Kansas City bank. Construction of the water system began. At the time of trial, the project was seventy percent completed and approximately $425,-000 had been expended.

The trial court entered judgment for plaintiff and made the following order: “IT IS THEREFORE considered, adjudged and declared by the Court that the ordinance of the Board of Trustees of the Village of DeKalb authorizing the election held April 2, 1963, in the Village of DeKalb was and is illegal, null and void and of no force and effect; that the issuance and sale of the bonds was and is illegal, null and void and of no force and effect; that the contract between the Village of DeKalb and the engineers for the drawing of plans and specifications was and is illegal, null and void and of no force and effect; and that the contract with the Mohawk Construction Company was and is illegal, null and void and of no force and effect.

“It is by the Court ordered that the Village of DeKalb be and is hereby enjoined and restrained from proceeding with the construction and erection of the water works system for which said bonds were voted; from paying any sums to the Mohawk Construction Company or the engineers employed to prepare plans and specifications, and from paying any sums whatsoever on the bonds.”

We do not reach the merits for we are of the opinion that the case must be reversed and remanded for new trial on all issues, because under the evidence plaintiff is not shown to have a legally protectible ■interest sufficient to allow him to maintain this suit.

In State ex rel. Chilcutt v. Thatch, 359 Mo. 122, at 129 and 130, 221 S.W.2d 172, at 176, this Court en Banc stated: “No jus-ticiable controversy exists and no justi-ciable question is presented unless an actual controversy exists between persons whose interests are adverse in fact. Plaintiff must have a legally protectible interest at stake and the question presented must be appropriate and ready for judicial decision. Borchard, Declaratory Judgments, p. 40; City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411; Odom v. Langston, 355 Mo. 115, 195 S.W.2d 466. Plaintiff’s petition must present a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from a decree which is merely advisory as to the state of the law upon purely hypothetical facts. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Anderson, Declaratory Judgments, p. 27, 16 Am. Juris., Sec. 46. Actions are merely advisory when there is an insufficient interest in either plaintiff or defendant to justify judicial determination, i. e., where the judgment sought would not constitute a specific relief to one party or the other. They are merely advisory when the judgment would not settle actual rights. If actual rights cannot be settled the decree would be a pronouncement of only academic interest. Plaintiff must have a legal interest in the relief he seeks. The question is justiciable only where the judgment will declare a fixed legal right and accomplish a useful purpose. Plaintiff must present a state of facts from which he has present legal rights against those he names as defendants with respect to which he may be entitled to some consequential relief immediate or prospective. If it appears plaintiff can have no relief against defendant, defendant should not be forced into litigation which can have no possible final result in favor of plaintiff. 1 C.J.S. Actions § 18, page 1031. See cases collected in 23 Words and Phrases, Perm. Ed., page 473, and in 2 West’s Missouri Digest, Action, ®=,6.”

Plaintiff testified on direct examination as follows:

“Q Do you own real estate in DeKalb? A I do.
“Q How long have you owned it?
“A Bought it in 1958.
“Q Do you own personal property in DeKalb?
“A Well, what is in my home, yes.
“Q Do you pay taxes? A I do.
“Q To the Village of DeKalb? A Yes.
“Q How long have you paid them ?
“A Well, ever since I have been there.
“Q Do you vote in the village elections of DeKalb as a resident of DeKalb? A I do.
“Q How long have you done that?
“A Since ’58 when I moved there.”

Plaintiff testified on cross-examination as follows:

“Q Can you at this time state in any way in which you have been aggrieved by this bond issue and the subsequent events?
“A No; not the bond issue certainly.
“Q You are effected [sic] in no way at. all at this point, are you ? A I have stated no.”

Plaintiff devotes nearly four pages of his brief to attempts to evidence a legally pro-tectible interest. The weakness of his position is that there is no evidence in the record to support his assertions. “The declaratory judgment act is not designed to adjudicate hypothetical or speculative situations which may never come to pass.” MFA Mutual Ins. Co. v. Hill, Mo.Sup., 320 S.W.2d 559, 564. In view of the fact that the revenue bonds in evidence provide that neither they nor the interest thereon shall be paid in whole or in part out of funds raised by taxation, the fact that plaintiff is a taxpayer is not sufficient of itself to show plaintiff could have been adversely affected by the actions of the Village of DeKalb. On the evidence adduced, plaintiff has shown no interest sufficient to maintain this suit. However, we have reviewed the record and have concluded that the case should be remanded for such additional action in this regard as plaintiff may care to take. It is possible that facts not disclosed in the record may be made to appear on the new trial. Finnegan v. Missouri Pacific R. Co., 244 Mo. 608, 149 S.W. 612. Examples of cases where taxpayers were allowed to sue are Woodmansee v. Kansas City, 346 Mo. 919, 144 S.W.2d 137, and Grossman v. Public Water Supply Dist. No. 1 of Clay County, 339 Mo. 344, 96 S.W.2d 701. In those cases, the taxpayers could have been adversely affected by the actions of the governmental entity involved. Also, see Annotation, 174 A.L.R. 549.

Another question must be considered. Defendant asserts that the trial court erred in granting relief to plaintiff because the bondholders were not made parties to the suit. This assertion was not made in the trial court. However, the case must be remanded for new trial for reasons set forth above and we need not consider whether defendant waived this defect of parties by failure to raise it in the trial court. (See Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132; Ray v. Nethery, Mo. Sup., 255 S.W.2d 817; and cases cited in 71 A.L.R.2d 723.)

Section 527.110, RSMo 1959, V.A.M.S., reads in part as follows: “When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings.”

The bondholders have an “interest which would be affected by the declaration.” We suggest they be made parties upon re-trial of the case. It may be that the Mohawk Construction Company and the engineers employed to prepare plans and specifications have interests “which would be affected by the declaration.” We are unable to determine this question on the record in this case.

The judgment is reversed and the cause remanded for proceedings consistent with this opinion.

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    Virginia Louise HARTLEY, Appellant, v. Honey STEIMAN, Respondent.
    No. 51642.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.

      Richard F. Adams, Winger, Nugent, Rayburn & Adams, Kansas City, for appellant.
    E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.
   BARRETT, Commissioner.

On January 8, 1963, at 7:50 a. m., the appellant Virginia Hartley and the respondent Honey Steiman were involved in a collision of their respectively driven automobiles at the intersection of 71st Street Terrace and Ward Parkway. Upon this appeal the details of the occurrence are not too important, it is sufficient to say that Mrs. Hartley was eastbound on 71st Street Terrace to Ward Parkway and Mrs. Steiman was traveling north on Ward Parkway at a speed of approximately 20 miles an hour when their automobiles collided in the intersection. Mrs. Hartley claiming $75,-200 damages submitted her right to recover upon the single hypothesis that “defendant failed to keep a careful lookout.” And conversely the respondent Mrs. Steiman submitted her case and defense upon the hypothesis that plaintiff “failed to keep a careful lookout.” The jury returned a verdict for the defendant Steiman and Mrs. Hartley has appealed.

Her sole claim of error and right to a new trial is that the court erred in overruling her “objections to the prejudicial argument of defendant’s attorney.” It is said that the argument was improper because “it referred to an issue that had not been submitted to the jury by the court’s instructions and which had been voluntarily abandoned by defendant.” Furthermore, it is said that the court’s ruling in the presence of the jury “sanctioned and approved such improper argument and led the jury to believe that they might base their argument upon an issue which had not been submitted to them by the court’s instructions and thereby constituted reversible error.” In short, the point is that both plaintiff and defendant submitting their respective theories upon “failure to keep a careful lookout” the appellant contends that there was manifest prejudicial error entitling her to a new trial in this court when defendant’s counsel argued the subject of right-of-way and in so doing referred to Section 58.390 of Kansas City’s traffic code.

At the outset it is assumed that “jury arguments which are outside the submitted issues and calculated to mislead and prejudice, or which urge a theory of claim or defense which the evidence does not justify, or which conflict with the trial court’s instructions in submitting the issue, should not be permitted.” Moss v. Mindlin’s, Incorporated, Mo., 301 S.W.2d 761, 766. It does not necessarily follow as a matter of course in every case, however, merely because a matter outside the submitted issues has been argued, that a new trial will be granted. Primmer v. American Car & Foundry Co., Mo.App., 299 S.W. 825. In the first place the argument complained of here was not so vituperative, personal and manifestly inflammatory as to require a new trial even in the absence of proper and sufficient objections to the argument or exception to the court’s tacit approval. Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421; Butcher v. O’Connor, Mo., 401 S.W.2d 490; Prague v. Eddy, 358 Mo. 327, 214 S.W.2d 521. Another and significant factor overlooked by the appellant, in view of the type of argument complained of, is that here the trial court considered these contentions when it ruled on the motion for a new trial and therefore she is not in the more favorable position she might have occupied had the court sustained her motion and granted a new trial. Primmer v. American Car & Foundry Co., supra; Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 257 S.W.2d 643; Wilkinson v. Wilkinson, 222 Mo.App. 1244, 8 S.W.2d 77. As stated, here the court denied the motion for a new trial and assuming that the argument was improper the question is whether the court abused its discretion. Moss v. Mindlin’s, Incorporated, supra; Snell v. Overfelt, Mo.App., 307 S.W.2d 716.

The problem arose in this background: At the conclusion of all the evidence and on the morning of the third day of trial defendant’s counsel offered in evidence Section 58.390 of the traffic code. Plaintiff’s counsel inquired: “That is the entire Ordinance ? ” Defendant’s counsel said it was and plaintiff’s counsel said, “No objection.” Defendant’s counsel then proceeded to read “Section B” of the ordinance to the jury. In part that section required vehicles to stop at a stop sign and to “proceed carefully and cautiously, yielding to vehicles not so obliged to stop which are within the intersection.” Plaintiff’s counsel asked to see the section, there was colloquy as to sections “A and B,” defendant’s counsel offered to read the whole section and finally plaintiff’s counsel said, “I wonder if you would mind reading ‘A’ too,” and defendant’s counsel read that section to the jury.

In plaintiff’s opening argument her counsel told the jury that the case was simple “we’ve only got the one issue in it, and that is lookout.” Then plaintiff’s counsel said “This is not a case of right of way. Now, there is no question of right of way in this case. The Court has instructed you the only issue in this case is lookout. Now, just keep that in mind, lookout; nothing about right of way.” After defendant’s counsel had argued at some length he said to the jury that plaintiff’s counsel “states that the right of way is not involved in this case” and after some colloquy the court said “(t)he objection is overruled.” Defendant’s counsel proceeded to argue concerning the ordinance and said among other things that the ordinance “states that when you start up from a Stop sign, you must proceed carefully and cautiously and keep a careful lookout to vehicles that are so close to the intersection as to constitute an immediate hazard.” Then as to argument, qua argument, plaintiff’s counsel had the last word: “Well, gentlemen, I want to point out one other thing. There’s no evidence of any violation of an Ordinance. That Ordinance says that if you have — if you are at an intersection, and if you have got the Stop sign, you have the right to enter this intersection if there is nothing approaching the intersection that presents any hazard to you.” And again he said, “Now, this is not the issue in the case.”

But of greater significance here is just precisely what occurred when defense counsel first mentioned the ordinance. This is the entire colloquy:

“MR. NUGENT: (Plaintiff’s counsel) Now, Your Honor,—
“MR. MILLIN: (Defendant’s counsel) —decided whether they could—
“MR. NUGENT: Now, just a minute, Mr. Millin.
“MR. MILLIN: May I have this time ?
“THE COURT: Yes, you may.
“MR. NUGENT: Now, the Court did not instruct on this. Mr. Millin knows—
“MR. MILLIN: I didn’t say he did.
“THE COURT: The Court did not instruct, but it was offered in evidence.
“MR. MILLIN: Right, it was offered in evidence, if you please, and it was admitted in evidence, both Sections that they wanted to read. They didn’t read it. And it states a person stopping at a Stop sign must proceed—
“MR. NUGENT: Just a minute. Your Honor, my objection—
“MR. MILLIN: Your Honor, I submit—
“THE COURT: The obj ection is overruled, and you will have your additional time.”

And then as indicated, defendant’s counsel proceeded to discuss the ordinance.

This is not to say whether in any event the ordinance was or was not admissible, there not only was no objection to it plaintiff’s counsel requested the reading of the entire ordinance. Also the problem is not involved upon the appeal and there is no necessity to comment on counsel’s request, “May I have this time ? ” The thing that stands out in all this colloquy, as so often happens, is that in point of fact there was no proper objection to defense counsel’s argument, at best it amounted to no more than a general objection (Hancock v. Crouch, Mo.App., 267 S.W.2d 36; Donley v. Hamm, Mo., 98 S.W.2d 966) and there was not so much as an exception to the trial court’s ruling. The matter complained of not being manifestly inflammatory, the ordinance being admitted by consent and not being completely irrelevant, had there been a timely, specific objection “the matter could have been removed by a request that the court instruct the jury to disregard the same, which was not done.” Moore v. Kopp, Mo., 400 S.W.2d 176, 182. Or as was said in Stewart v. Boring, Mo., 312 S.W.2d 131, 135, “When argument is not so manifestly improper there is a discretion in the trial court and there must be timely objection, successive requests for specific action and specific assignment in the motion for a new trial.” And finally, in the total context of the trial, the argument was not wholly outside the issues, there was an entirely inadequate objection to it, and it was neither so misleading nor inflammatory nor otherwise objectionable as to compel the granting of a new trial by this court. RSMo 1959, § 512.160(2); Civil Rule 83.13(b); Stewart v. Boring, supra; Silverstein v. St. Louis Public Service Co., Mo., 295 S.W.2d 37, 42; Collins v. Cowger, Mo., 283 S.W.2d 554. And accordingly the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Otto Lang SAMPSON, Appellant.
    No. 51805.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, James M. Byrne, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    W. J. Taylor, Jr., Lawrence A. Wald-man, John L. Davidson, Jr., St. Louis, for appellant.
   STOCKARD, Commissioner.

Otto Lang Sampson, charged as an habitual criminal, was found guilty by a jury of illegally possessing amphetamine, a stimulant drug, and was sentenced by the court to confinement for a term of four years. He has appealed from the ensuing judgment.

Appellant asserts on this appeal that the trial court erroneously overruled his motion to suppress evidence which was filed and ruled on prior to trial. At the hearing on the motion Patrolman Kent Kennison, called as a witness by appellant, testified that he and another member of the St. Louis Police Department observed appellant about 11:20 o’clock of the evening of April 26, 1965, looking into some automobiles parked in a commercial parking lot in the 3900 block of Olive Street. Appellant observed the officers watching him and he started to walk out of the lot. The officers started to approach appellant, and when they were about ten feet behind him, and as far as is shown by the record with no word being said, appellant looked back and saw the officers and “went for his right trouser pocket.” Officer Kennison then “grabbed his arm” after appellant’s hand had entered his pocket because the officer thought he “might have a gun or knife or something on him.” The officer then “searched that pocket” and found a six and one-half inch pocket knife with a three-inch blade. Appellant was then told that he was under arrest for carrying a concealed weapon, and when further searched there was found on his person a syringe, a hypodermic needle, some pills, a white substance later identified as amphetamine, and some cotton and tinfoil.

The motion to suppress is not set out in the transcript. The knife was not offered in evidence at the trial, but the other items were offered and received in evidence over the objection of appellant that they had been obtained as the result of an unlawful search and seizure.

An arrest by a police officer of the City of St. Louis without a warrant is authorized by law when the police officer has reasonable grounds to believe that an offense against the law has been committed, State v. Jefferson, Mo., 391 S.W.2d 885, 888, or when the police officer has reasonable grounds to believe that a person intends to commit a breach of the peace. Section 84.090, RSMo 1959, V.A.M.S. When a person has been lawfully arrested, a search without a warrant may be made of the person. State v. Vollmar, Mo., 389 S.W.2d 20, 25. A person may be said to be under arrest from the moment the police officer takes control of his movements. § 544.180, RSMo 1959, V.A.M.S.; State v. Stokes, Mo., 387 S.W.2d 518, 522. In this case without reason or provocation, at the approach of the police officers appellant “went for his trouser pocket.” This is a term well known.in police circles as meaning that appellant suddenly reached into his pocket with the appearance of grabbing for for a weapon. From this act the officers reasonably could assume that appellant intended to attack them or otherwise commit a breach of the peace. See Restatement of Torts, § 116 as to what constitutes a breach of the peace. It has universally been held when the issue has been presented that when the overt acts of a person and the surrounding circumstances are such as reasonably to indicate to the peace officer a threatened breach of the peace, a lawful arrest may be made. 6 C.J.S. Arrest § 6, p. 592; Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 20 A.L.R. 639; Pavish v. Meyers, 129 Wash. 605, 225 P. 633, 34 A.L.R. 561; United States v. Haskins, D.C., 213 F.Supp. 551; Price v. State, 227 Md. 28, 175 A.2d 11; Cave v. Cooley, 48 N.M. 478, 152 P.2d 886; State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100; Morrison v. State, 192 Tenn. 48, 237 S.W.2d 548; Spurlock, Arrest in Missouri, 29 U. of K. C. Law Rev. at pp. 168—169. Here the officers were authorized to act when appellant turned toward them and without provocation or reason engaged in an act which reasonably would give the impression that he intended to commit a breach of the peace. It would be a most unreasonable and unrealistic rule that would result in peace officers not being able to protect themselves in such circumstances and make an arrest and search for the discovery of weapons. Appellant in his argument overlooks this, and he asserts that the only thing done by him was to look into an automobile. Starting with this erroneous factual statement he arrives at an erroneous result. The knife was found as the result of a lawful search, and the other items were found either as a continuation of that lawful search, or as the result of a new search based on another lawful arrest for carrying a concealed weapon. The trial court did not err in overruling the motion to suppress, and the items were not erroneously admitted into evidence on the basis that they were obtained by an unlawful search and seizure.

Appellant asserts that there is no substantial evidence to support the verdict because “the State failed to prove by substantial evidence that appellant did not have possession of the [amphetamine] for medical purposes upon written prescription of a licensed physician or upon personal dispensation by a licensed pharmacist.”

Section 195.240 provides that the possession of any drug designated by the division of health to be a barbiturate or stimulant (and it is admitted that amphetamine has been so designated) is unlawful “except in the usual course of business or practice, or in the performance of their official duties by the following persons: * * * (7) Persons using for medical purposes upon the written prescription or personal dispensation by a person licensed under the provisions of chapters 332 [dentists], 334 [practitioners of medicine], 338 [pharmacists], and 340 [veterinarians].” Appellant admitted that at the time of his arrest he possessed amphetamine. However, he stated that he had obtained it from the West End Pharmacy with a prescription given to him by Dr. H. D. Erwin. He further stated that in May 1964 Dr. Erwin had given him a “refillable prescription” for amphetamine, and that he had seen Dr. Erwin professionally three or four times at his office. The police officer testified that the amphetamine was found on appellant’s person in a “white vial” on which there was no label. Appellant stated that there was no label because he had received the vial of amphetamine from the West End Pharmacy with “the label * * * connected on the bottle with the rubber band, the rubber band slipped off, the label slipped off also,” but that the label was in his pocket when the officers searched him. Dr. Erwin testified that he had seen appellant on only one occasion, and that was on April 6, 1964. At that time he gave appellant a prescription, which was not refillable, for “powder amphetamine hydrochloride, one-half an ounce,” with instructions to take “one-fourth teaspoonful in water, 7:00 a. m. and 2:00 p. m.” and to be taken by mouth, and that there would have been about fifteen “fourths of a teaspoon” in the prescription. Appellant testified that he took amphetamine “orally, intravenous, or intramuscular,” that he used the hypodermic needle found on his person to inject amphetamine, that Dr. Erwin did not tell him “directly” to inject amphetamine into his vein, but had asked him if he “knew how to inject” himself and that he had said that he did.

From this evidence the jury could reasonably find that appellant did not possess the amphetamine pursuant to a prescription from a doctor. He had received the prescription, according to him in May 1964, and according to Dr. Erwin in April 1964, and the amount of amphetamine received would have lasted less than one week when taken according to the directions of the doctor. However, one year later when arrested he had on his person an amount of amphetamine substantially equal to the amount called for in the prescription, and appellant admitted that he had regularly used amphetamine, not in the manner prescribed by the doctor, but by use of a hypodermic needle. The possession of amphetamine was admitted. It was an issue of fact for the jury whether the possession was pursuant to a prescription by a doctor, and the jury found that it was not.

Appellant next asserts prejudicial error resulted when the trial court refused “to allow the defendant to cross-examine the arresting police officers as to their conversation with defendant at the time of the arrest beyond the one question allowed by the court.” This point is insufficient in that it does not reveal why appellant contends the ruling was improper. However, in the argument portion of the brief appellant refers to ten pages in the transcript. We find there that the trial court permitted appellant’s counsel to ask the arresting officers if appellant told them that he had amphetamine in. his possession, but the trial court sustained objections to a question as to what appellant said after being told that he was under arrest for carrying a concealed weapon, and to the question of what appellant said as to where he obtained the amphetamine. The court also indicated generally that questions as to what appellant said would not be permitted because they would be self-serving. Appellant made no offer of proof, and for that reason we cannot determine that the answer to the question desired to be asked would have been admissible. Appellant cites State v. Hamilton, Mo., 310 S.W.2d 906, to the effect that it is unnecessary to make a formal offer of proof “where the question itself discloses the materiality of the evidence.” We do not question that rule. Appellant argues that what appellant said would be a part of the res gestae. However, “Ordinarily, the acts, conduct, and statements of accused at the time that he surrendered or was arrested, or after he was arrested, are so separated in time, place, or circumstance from the commission of the offense as to lack the spontaneity, necessary to make them a part of the res gestae; but they are admissible as part of the res gestae under some circumstances, as where the arrest was made or attempted shortly after the commission of the offense and the acts or statements were done or made while the mind was still acting under the exciting cause of the occurrence.” 22A C.J.S. Criminal Law § 667, p. 684. In this case appellant was charged with possession of amphetamine, and when arrested he was found to be in possession. Appellant likens this to an arrest for the possession of stolen property, and cites State v. Jacobs, 133 Mo.App. 182, 113 S.W. 244. There statements of the defendant at the time of his arrest which would have explained the possession of recently stolen property were held to have been improperly excluded. The court pointed out that “if some considerable time has elapsed after the property is discovered in possession of the accused, and he is informed of the suspicion attached to his possession, such declarations in his own interest are excluded as self-serving, and not of the res gestae, on the theory that he has had ample time to concoct or contrive a story in his own interest tending to mislead or conceal the true fact.” We consider the applicable rule to be that stated in the paragraph following the quotation above from 22A C.J.S. Criminal Law § 667. “Evidence of a statement or declaration of accused in regard to the property which he is charged with stealing is admissible when the statement was made at or about the time the property was taken or immediately on. discovery, as a part of the res gestae, but it is not admissible in accused’s behalf as res gestae where sufficient time has elapsed for him to reflect and fabricate an explanation.” Here the possession of the amphetamine was a continuing offense, and this is not a situation where upon the commission of the offense there was not sufficient time to reflect and fabricate an explanation for the possession. Appellant has confused the res gestae of the arrest with the res gestae of the offense. In the absence of a showing, by an offer of proof or otherwise, that the statements of appellant made at the time of arrest were of such nature that he did not have sufficient time to reflect and fabricate an explanation of his possession of amphetamine, we cannot now rule on appeal that the ruling of the trial court was improper.

The final point of appellant is that the trial court erred in “overruling defendant’s motion for a mistrial because of the improper and prejudicial argument by the prosecuting attorney in which he implied that defendant had suppressed evidence and was responsible for the absence from the court of the witness B. J. Holbert.” There was no motion for a mistrial made at any time during oral argument to the jury. After the jury had retired and started its deliberations counsel for defendant said this: “I want to withdraw a juror and to declare a mistrial because of improper argument of the Circuit Attorney in the reply portion. First, his argument on the amphetamine and taking the role of a doctor and testifying in effect and seeking to prejudice the jury thereby, in which I had no opportunity to reply; and second because of his stating that the burden on us was to prove alibi; we never pleaded alibi; that was not our defense at all and which has been to mislead and confuse the jury.” It is thus apparent that the basis for the request for the mistrial made after the jury had retired is not the basis of the point now advanced to this court, and no request for a mistrial was ever made on the basis that the state’s attorney implied that appellant had suppressed evidence and was responsible for the absence of witness Holbert. For this reason there is no ruling of the trial court before this court for review. In addition, we have examined the argument pertaining to the absence of witness Holbert to determine if it constitutes plain error within the meaning of Criminal Rule 27.20(c), V.A.M.R., and, without further elaboration, we rule that it clearly does not.

We have examined the record as required by Criminal Rules 28.02 and 28.08, V.A.M.R., and find it sufficient with respect to those matters therein specified.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Marvin TESTERMAN, Appellant.
    Nos. 52236-52238.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.

      Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   WELBORN, Commissioner.

This is an appeal from the denial by the McDonald County Circuit Court of Marvin Testerman’s motion to vacate judgment and sentence. Criminal Rule 27.26, V.A. M.R. The motion was denied without a hearing.

On February 10, 1964, a jury in the McDonald County Circuit Court found appellant guilty of obtaining money by deceit with intent to defraud by means of a “no funds” check. His punishment was set at two years’ imprisonment. Upon appellant’s waiver of his right to file a motion for new trial, and to appeal, sentence was pronounced and judgment entered in accordance with the verdict and on the same date.

On February 24, 1964, appellant again appeared in the McDonald County Circuit Court and on a plea of guilty in each case was sentenced to seven years for felonious assault and two years for escape from custody. In the sentencing of appellant on the felonious assault charge, the judge’s minutes incorporated in the transcript on appeal here recite that the sentence there imposed was “to run consecutively with the sentence in Cases Numbered 2997 [escaped custody] and 2996 [“no funds” check] now pending in this Court and against this defendant.” In the sentencing on the “escaped custody,” the judge’s minutes recite that the sentence there imposed is “to run consecutively with the sentences in Cases Numbered 3005 [felonious assault] and 2996 [“no funds” check] now pending in this court and against this defendant.” In the “no funds” check case, No. 2996, the court minutes of February 10, 1964 make no reference to the felonious assault and escape charges. However the minutes of February 24 in the “no funds” check case recite that the sentence in that case is “to run consecutively with the sentence in Cases Numbered 3005 and 2997 * * In each case, the minutes recite that defendant is to be allowed credit for time spent in the McDonald County jail.

By his motion under Rule 27.26, appellant contends that there is no sufficient “legal directive” that the sentences imposed in Cases Nos. 2996 and 2997 are to be served consecutively to that imposed in No. 3005, and, therefore, the three sentences run concurrently. Appellant attached to his motion photostatic copies of the judgment in each case as it, according to him, appears from the records of the Department of Corrections. Appellant points out that, in each of such judgments, the term of imprisonment is fixed to start January 26, 1964. The trial court did order that appellant, in each case, receives credit for time spent in the McDonald County jail. This apparently accounts for the January 26 date for commencement of the term of his imprisonment. With considerable logic, appellant says that three consecutive terms could not have commenced on the same date. He also points out that each of the judgments recites that the sentence in the case to which it applies runs “consecutively with” the sentences in the other two cases. According to appellant, these circumstances give rise to some ambiguity as to the meaning of the judgments and sentences, all of which should be resolved in his favor and against the sentences being consecutive. See McCracken v. Kaiser, 352 Mo. 799, 179 S.W.2d 470.

The specification of the date on which each of the sentences would begin is not legally effective to fix the beginning of the sentences. “The law and not the judgment fixes the date his punishment shall commence.” Higlin v. Kaiser, 352 Mo. 796, 179 S.W.2d 471, 473 [6]; State v. Amsden, Mo.Sup., 299 S.W.2d 498, 500 [3, 4]; State v. Hicks, Mo.Sup., 376 S.W.2d 160, 162 [4, 5]. The court's intention to impose consecutive sentences was sufficiently clear to the Department of Corrections. That such was the trial court’s intention is hardly to be denied in view of the fact that the judge who imposed the sentence also considered the motion to vacate. Appellant does not allege that he did not understand at the time of sentencing that the sentences were to be consecutive. The trial court had the right to make the sentences cumulative. State v. Shell, Mo. Sup., 299 S.W.2d 465, 467 [3]; State v. Fleshman, Mo.Sup., 399 S.W.2d 56, 58 [3]. We cannot say that the court’s exercising of its authority was not sufficiently clear.

We do not express approval of the form of judgment in the original proceedings. Some of the difficulty undoubtedly arose by reason of the use of a printed form of judgment specifying a date for the commencement of the sentence, despite the injunction of Higlin, supra. The trial court need not fix that date in order to permit the proper computation of the allowance for jail time under § 546.615, RSMo 1959, V.A.M.S.

Appellant asks: “If the sentences are consecutive, which must be served first?” Insofar as appears, the question is academic. Appellant does not show that he is suffering any adverse consequences by reason of the order in which the sentences are being served.

In addition to his attack on the sentence, appellant attacks the convictions and judgments in the assault and escape cases. In the assault case, he contends that he was not adequately informed of the charge. His contention is based upon the fact that the affidavit filed in the magistrate court charged him with assault with intent to maim with his hands, whereas the information charged assault with intent to kill with malice with a stick of wood which he held in his hands. The information adequately charged assault with intent to kill with malice and thereby informed appellant of the offense charged. The discrepancies pointed out by appellant between the original affidavit and the information to which he pled guilty are not such as would affect the validity of the information on this collateral attack. At the most, they would go to a lack of preliminary hearing on the charges for which he was convicted. Appellant by his plea of guilty after consultation with his attorney waived any objection to the lack of a preliminary hearing. State v. Cooper, Mo.Sup., 344 S.W.2d 72, 75 [4, 5],

Appellant attacks the judgment and sentence in the assault case on the grounds that the judgment recites a finding of guilt on the charge of “felonious assault.” He points out that no reference was made to malice, the distinguishing feature between the offenses defined by § 559.180 and § 559.190, RSMo 1959. He contends that the judgment and sentence is for the offense defined by § 559.190 and that the seven-year sentence is in excess of the five-year maximum under § 559.190. Appellant’s contention is based upon the photostatic copy of his commitment, attached to his petition. The judgment proper is the basic record. Williford v. Stewart, 355 Mo. 715, 198 S.W.2d 12, 14 [3, 4]. The transcript on appeal does not contain a copy of the record judgment in the assault case. The judge’s minutes appear, but the offense to which defendant entered his plea is not shown in the minutes. If the commitment truly reflects the recorded judgment, there is merit in appellant’s contention. An offense under § 559.190 is an included offense in a charge under § 559.180. State v. Parrish, Mo.Sup., 214 S.W.2d 558, 560 [8-10]; State v. Brown, Mo.Sup., 165 S.W.2d 420, 421 [2, 3], The judgment is required to state “briefly the offense for which [the] conviction shall have been had * * § 546.590, RSMo 1959, V.A.M.S. Here the description of the offense is not sufficient to describe an offense under § 559.180, although it is adequate for the included offense under § 559.190. Therefore, if such is the true state of the record, the only conviction of record is for an offense for which the maximum punishment is five years’ imprisonment. § 559.190. Relief is afforded, under Rule 27.26 V.A. M.R. to a prisoner being detained under a “sentence in excess of the maximum sentence authorized by law * * and appellant would be entitled, in this proceeding, to the correction of his sentences within the limit of the punishment for the crime specified by the court’s judgment. The matter must be remanded to the trial court for its further consideration and action in these premises.

We note, however, the further complaint on this appeal of appellant that the trial court erroneously denied his motion without affording him a hearing. He contends that his motion raised factual issues with respect to the validity of the judgment in the assault and escape cases and that a hearing should have been granted.

In the assault case, the factual issue is claimed to arise by reason of appellant’s allegation in his motion that he “was subjected to duress and coercion at the time of his arrest and confinement in the McDonald County jail, and through such means was systematically blocked from communication with his wife, who was the only witness to the alleged crime * * * and the sworn statement of his wife is submitted herewith to show that the person who committed the actual crime in this matter will be named at the hearing of this Motion, which will completely establish the innocence of [appellant] * * The attached affidavit of his wife states that she “did not have an opportunity to testify in behalf of [her] husband. * * * I do swear under oath that I was the only eye witness and am prepared to name in court, the party who is guilty of the crime.”

The difficulty with these allegations is that they do not explain away appellant’s plea of guilty to the charge against him. He alleges no coercion or misapprehension as the basis for his plea. The wife’s affidavit does not, in fact, exonerate appellant. Nor does it support his allegation that he was “systematically blocked from communication with his wife.” She states merely that she “did not have an opportunity to testify on behalf of [her] husband,” which is undoubtedly true, since he pled guilty. The facts alleged would not entitle appellant to relief and the trial court properly denied the motion without a hearing.

As for the escape charge, appellant alleges that at the time he is supposed to have escaped, “no warrant or charge was in effect” and that he “was not in legal custody” at the time. In support of this allegation, he attached to his petition a letter to him from the McDonald County sheriff in which the sheriff stated: “In regard to the Charge at the time you broke custody from me at the Bartley residence —there was not any charge filed at that time.” The fact that no charge was pending or warrant issued at the time of the alleged escape would not preclude conviction for escaping custody under § 557.390, RSMo 1959, V.A.M.S. See People v. Serrano, 123 Cal.App. 339, 11 P.2d 81; 30A C.J.S. Escape § 5, p. 883. Moreover, the true import of the sheriff’s letter as a whole is that escape charges were not filed at the time of the incident. The second sentence reads: “I understand that you are serving time for that charge which was filed at a later date.” The letter concludes: “[TJhere was not a charge of escape filed against you at the time, you were sentenced on the drunken driving charge.” This is consistent with the record as it appears in the transcript here. It shows that the information charging escape from custody on February 25, 1962 was filed on February 17, 1964. In our opinion, the allegations show no basis for a claim of relief from the sentence and the trial court properly overruled the motion without a hearing.

The judgments in Nos. 52236 and 52237 are affirmed. The judgment in No. 52238 is reversed and remanded for further proceedings in accordance with this opinion.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . Such minutes would not appear sufficient to support a nunc pro tunc amendment of the judgment at this time. State v. Pedockie, Mo.Sup., 391 S.W.2d 255, 257 [2-4]; State v. Gartrell, 171 Mo. 489, 71 S.W. 1045, 1048.


author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Robert W. CUTSHALL, Appellant.
    No. 51986.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, McCormick V. Wilson, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
    Robert G. Duncan, Lewis E. Pierce, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
   FINCH, Judge.

Defendant was convicted of manslaughter under § 559.070 and was assessed punishment of three months in the county jail and a fine of one hundred dollars. We have jurisdiction over his appeal because the conviction was for a felony. Article V, § 3, Constitution of Missouri.

The information charged culpable negligence in the operation of a motor vehicle on January 17, 1965, causing it to collide with an automobile driven by one Arthur L. Thompson and resulting in fatal injuries to Thompson.

The collision in question occurred on the Paseo Bridge. At that point there are separate north and southbound lanes divided by a concrete median strip 10 inches in height and four feet in width. The north and southbound lanes were each 26’ feet wide.

Defendant on appeal asserts three alleged errors, the first of which is denial of his motion for acquittal at the close of all the evidence.

The state’s evidence will support the-following summary: Sometime between 9:00 and 10:00 p. m., defendant drove his. Pontiac station wagon north from Kansas. City onto the approach to the Paseo Bridge-While he was still on the approach, he passed to the left of an automobile traveling in the same direction. Mr. Dillingham, the driver of that car, was traveling approximately 50 miles per hour, and he-estimated the speed of the defendant’s Pontiac at 65 to 70 miles per hour. There was a posted speed limit at that point of 55 miles per hour. Shortly after defendant’s Pontiac had passed Dillingham, it swerved left and sideswiped the median strip divider. It then veered away from the median strip and swerved or fishtailed back and forth across the highway until it hit the right-hand railing of the bridge. The Pontiac then turned back to the left at about a 45 degree angle and crossed the median strip into the southbound lane of travel. It traveled across the southbound lane and hit the west bridge railing, after which it bounced back toward the east and collided with the Oldsmobile, driven by the deceased Thompson. Mr. Thompson was thrown out of the car and into the northbound Jane, receiving injuries from which he died the following day.

Dillingham estimated a distance of between 300 and 400 yards from the time he first saw defendant’s Pontiac (apparently as it passed him since he had not seen it behind him) until it crossed the median strip. He did not fix in feet or yards the distance the Pontiac traveled from the time it sideswiped the center median until it crossed into the southbound lane, but he did say that it sideswiped the median shortly after passing him. He further testified that the Pontiac swerved back and forth for about half of the length of the bridge before it hit the right-hand railing. The length of the bridge itself was not shown in the evidence. According to Dillingham, the brake lights of the Pontiac never came on and the speed of the car did not slacken. The only tire marks were scuff marks where the Pontiac crossed the median strip and similar marks in the southbound lane of traffic. The distance between the scuff marks on the median strip and those made by the Oldsmobile where it was shoved backward was 200 feet.

The evidence disclosed that the impact of the Pontiac with the Oldsmobile knocked it backward approximately 20 feet into the front of a Dodge which had been following but which was stopped. Considerable damage was done to the front end and right side of the Oldsmobile, and various parts of the front end of the Dodge which was following were mashed in. The front end of the Pontiac was badly damaged and it came to rest on its side.

Two police officers who testified stated that they were at the scene of the accident within a few minutes after it happened and that they talked to defendant and smelled the odor of alcoholic beverages on his breath. Officer Matthews, who assisted defendant into an ambulance, also testified that it appeared to him that defendant was intoxicated.

The rule in Missouri, as announced in State v. Schneiders, 345 Mo. 899, 137 S.W.2d 439, is “that negligence to be deemed culpable within the meaning of the statute and, therefore, criminal, is something more than ordinary, common-law, or actionable negligence. The culpability necessary to support a manslaughter charge must be so great as to indicate a reckless or utter disregard for human life.” State v. Feger, Mo., 340 S.W.2d 716, 721; State v. Mayabb, Mo., 316 S.W.2d 609, 612; State v. Duncan, Mo., 316 S.W.2d 613, 615.

Under the evidence herein, a jury could have concluded that defendant was not guilty of criminal negligence but was guilty of negligence which would involve civil liability. Defendant himself testified that he never exceeded a speed of 55 miles per hour and had had nothing to drink and that he simply lost control of his automobile when he sideswiped the median. In this he was corroborated by Bill Terry, his passenger. On the other hand, we cannot conclude as a matter of law that defendant was guilty of no more than ordinary negligence. State v. Studebaker, 334 Mo. 471, 66 S.W.2d 877, 882. The jury could have found that defendant was driving after he had been drinking and was under the influence of alcohol and perhaps intoxicated; that he was traveling 65 to 70 miles per hour in a 55 mile zone on the Paseo Bridge; that he swerved into the median strip; that he weaved or fishtailed back and forth for a considerable portion of 300 to 400 yards until he hit the east railing of the bridge; that he then swerved back to the left and crossed the median divider (exploded across it, as one witness put it); that he crossed the southbound lane into the west bridge railing and then swerved or bounced back right and hit the southbound Oldsmobile 200 feet north of where he crossed the median strip, striking it with sufficient force to knock it backwards a distance of 20 feet and into another automobile; that considerable damage was done to all the vehicles; and that the impact knocked Thompson out of his Oldsmobile, across the median strip and onto the northbound traffic lane. The jury could have found that such conduct amounted to culpable negligence as defined in the court’s instructions. Accordingly, we hold that under the evidence a submissible case was made.

Secondly, defendant asserts that the information on which he was tried was fatally defective in that it alleged that he had acted wilfully and through culpable negligence. Such allegations, defendant claims, are inconsistent and repugnant.

The information, after the preliminary allegations, charges that “Robert W. Cut-shall did then and there wilfully and felo-niously on the Paseo Bridge did drive and operate a motor vehicle, carelessly, recklessly, feloniously and with culpable negligence causing same to collide violently with an automobile driven by Arthur L. Thompson and by reason of the collision aforesaid, one Arthur L. Thompson did receive numerous wounds and mortal injuries in and upon the head and body, which wounds and injuries caused the said Arthur L. Thompson on the 18th day of January, 1965, then and there to die. The said Robert W. Cutshall in the manner aforesaid and by means aforesaid, carelessly, recklessly, feloniously and with culpable negligence did kill and slay the said Arthur L. Thompson, * *

We do not believe the defendant was misled in any way by the inclusion of the word “wilfully” in this information. It is abundantly clear that defendant was charged with manslaughter as a result of culpable negligence.

Defendant cites the early case of State v. Lockwood, 119 Mo. 463, 24 S.W. 1015, decided in 1894. At that time the statutes provided four degrees of manslaughter, and defendant was charged with manslaughter in the fourth degree by wilfully and with culpable negligence shooting the deceased. The court sustained a motion to quash on the ground that the information was bad for inconsistency. We are of the opinion that the Lockwood case does not govern the result here. The statute involved is different and the information in Lockwood repeatedly used the word “wilfully” throughout the information, whereas that is not true in the information against the defendant herein. Furthermore, there was a tendency at that time to be more technical in the construction of the language in pleadings than at the present time. In our judgment, the word “wilfully” in the information against the defendant can and should be treated as mere surplusage. The information was sufficient.

Defendant’s final contention is that the court erred in refusing his Instruction “A” and failing, in the alternative, to otherwise instruct the jury on the defense of accident.

In the case of State v. Sumpter, Mo., 184 S.W.2d 1005, 1006, this court stated: “Defendant’s complaint with respect to the failure of the court to instruct on homicide excusable on account of an accident is well taken. Defendant was entitled to have his established defense submitted. The homicide stood confessed. He testified he was operating his automobile on the north, his side, of the highway at about 25 or 30 miles an hour; that he was not going any place in particular; that he decided to turn around and went over on the south side of the road; that he saw the man dressed in light clothes (Leonard), was watching him and did not see his brother, who was farther out in the highway, and first knew he hit someone when a fender struck Richard Rulo. Defendant might have been guilty of simple negligence under this testimony but was not, as a matter of law, guilty of that culpable negligence essential to a conviction for manslaughter. He was entitled to have his theory of innocence submitted to the jury. Sec. 4070(4th), R.S.1939, Mo. R.S.A.; Secs. 4380, 4381, R.S.1939, Mo. R.S.A.; State v. Crowley, 345 Mo. 1177, 1182(1), 139 S.W.2d 473, 475, 476[1,2], citing authority.” See also State v. Bradley, 352 Mo. 780, 179 S.W.2d 98, which held that where the evidence warrants, the court must give an accidental homicide instruction, whether requested or not, as a part of the law of the case, and State v. Vincent, Mo., 321 S.W.2d 439, and State v. Watson, Mo., 364 S.W.2d 519, which recognized the rule.

We are of the opinion that Instruction “A” offered by the defendant was not a good instruction. The evidence in this case, however, did justify and require an instruction on accidental homicide under the rule announced in Sumpter and Bradley. Defendant testified that he never exceeded 55 miles per hour; that he had had nothing to drink; that he reached in his pocket for change to use at the toll gate located at the north end of the Paseo Bridge; that he did not have the exact change and intended to pull to the right to get into a lane where change was made; that he glanced back to see whether the way was clear to pull to the right; that he saw a car or a shadow which he took to be a car and hence he cut back to the left; that when he did so he sideswiped the center median, causing him to lose control of his car and resulting in the accident which occurred. In this defendant was corroborated by his passenger, Bill Terry. Under this evidence, defendant might have been guilty of negligence for which civil recovery could be had, but he was not, as a matter of law, guilty of that culpable negligence essential to a conviction for manslaughter. Consequently, an accidental homicide instruction should have been given as part of the law of the case.

The state’s brief contends that this point was not preset ved in the motion for new trial. We have concluded that the motion for new trial did raise the matter sufficiently so that both the trial court and this court would understand defendant’s complaint, and we hold that it was error not to give a proper accidental homicide instruction.

Reversed and remanded.

All of the Judges concur.

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


author: HOUSER, Commissioner.

text:
    Woodrow TINNON, Plaintiff-Appellant, v. Sam TANKSLEY, Defendant-Appellant. Dale Alcorn and Delmar Alcorn, d/b/a Alcorn Bros. Real Estate, Defendants-Respondents.
    No. 51553.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.

      Roderic R. Ashby, Charleston, for plaintiff-appellant.
    Dwight Crader, Sikeston, for defendant-appellant.
   HOUSER, Commissioner.

The named purchaser in a written contract for the sale of 80 acres of land, Woodrow Tinnon, filed a suit in two counts against the sellers named in the contract, Sam Tanksley, and Dale and Delmar Al-corn, d/b/a Alcorn Bros. Rea! Estate. Count I sought specific performance of the contract. Count II sought to recover down payments of $4,000 and damages for breach of contract in the sum of $2,0C0. Defendants filed a general denial and a counterclaim for recovery of possession of the land, for $5,000 for unlawfully withholding possession of the land (Tinnon was a tenant on the land at the time he signed the contract to buy it) and for $2,400 for rents and profits. The court found that the contract was rescinded and denied specific performance; that plaintiff was entitled to the return of his $4,000 and that defendants were entitled to rents and profits in the sum of $1,600, and rendered judgment accordingly. Plaintiff Woodrow Tinnon and defendant Sam Tanksley both appealed.

Title to real estate is involved within the meaning of Art. V, § 3, Constitution of Missouri, V.A.M.S.; Price v. Ridler, Mo.Sup., 373 S.W.2d 59[1],

We review the entire record and reach our own conclusions as to the facts, determining the weight and value to be given the evidence, deferring to the findings of the trial court, however, when proper. Anderson v. Abernathy, Mo.Sup., 339 S.W.2d 817 [1],

Leland O’Reilly owned a 200-acre farm in Mississippi County. The farm was rented to Woodrow Tinnon. On August 19, 1963 O’Reilly and Sam Tanksley entered into a real estate contract for the sale of the 2C0 acres. January 10, 1964 was fixed as the closing date. On September 16,1963 Tanks-ley made a written contract with Woodrow Tinnon for the sale of 80 acres out of the 200-acre tract for $34,000, $2,000 down and $2,000 upon the purchaser receiving a commitment to make a loan, “the balance in cash upon the closing of this transaction, which shall be on or before January 10, 1964.” The contract was to be considered null and void and the money deposited returned to the buyer in the event the buyer should be unable to obtain the loan within 60 days after the date of the contract. Time was agreed to be of the essence. If seller kept his part of the bargain by furnishing good and sufficient title and the buyer failed to comply with the terms of the agreement within 10 days thereafter the money deposited was to be forfeited as liquidated damages, and the contract was to be thereafter inoperative, at the option of seller. (Although the real estate agents Alcorn who negotiated the deal were designated in the contract as cosellers with Tanksley, their only interest was in the commission.)

Tinnon paid $2,000 when the contract was executed. He received a loan commitment from an insurance company on November 7, 1963. On November 12, 1963 Tinnon made a second $2,000 payment. O’Reilly gave Tinnon written notice to vacate the 80 acres, effective December 31, 1963, but Tinnon did not vacate and was still in possession at time of trial in December, 1964. Tinnon did not on or before January 10, 1964 offer to pay the balance of the purchase price. He was unable to close the deal on time because he could not obtain the signature of his wife on the loan papers. She had filed suit for divorce on February 23, 1963 and was unwilling to sign the papers. Tanksley did not at any time declare the contract void and the $4,000 forfeited when on January 10, 1964 Tinnon failed to pay the balance due on the contract. There was no communication between the parties themselves. On January 20, 1964 the attorneys employed by the insurance company to examine the title wrote to Tinnon, informing him that they had received a check from the insurance company and that “this can be closed at your convenience”; that they were authorized to hold the check “only for a time specified.” Tinnon did not answer the letter or communicate with the attorneys or the sellers. Tinnon did not at any time communicate to the sellers that he was ready to close; did not tender the money and demand a deed, and did not instruct his attorney to close the deal at any time for the reason that his attorney assured him that he had talked to Tanksley and Alcorn and he thought “everything was okay,” i. e., that the sellers would not do anything “to hurt Woodrow” and would “hold the 80 until Woodrow got his divorce over with.” From November, 1963 until March 21, 1964 the attorneys for Tinnon and his wife were negotiating with respect to a settlement of the property rights of the parties. The sellers did not insist upon a specific date beyond which they would no longer wait. Instead, by acts and conduct, they countenanced the delay for a period of several weeks after January 10, 1964.

On January 1, 1964 a principal and interest payment became due by O’Reilly to an insurance company. O’Reilly intended to pay this debt out of the proceeds of the sale of the 200 acres to Tanksley. He made several inquiries of the Alcorns, asking when the deal between O’Reilly and Tanks-ley was to be closed, stating that he needed his money. Dale Alcorn and Tanksley were “fussing,” “wanting Woodrow to hurry up and get this divorce over with so they could close the deal” between Tanksley and Tin-non. They said that O’Reilly was pushing them and that they “needed to get the thing out of the way.” Tinnon’s attorney could not give them a definite date on which Tinnon would close the contract. It depended upon the granting of the divorce, which was indefinite as to time because the parties were still negotiating with respect to the property. Tinnon’s attorney did not request of the sellers that they give a commitment postponing the closing to a specific date and no such commitment was ever made. “Off and on” during January, February and March, 1964 Tinnon’s attorney would talk to Tanksley about the status of the divorce suit. Tanksley would ask “when are you going to get that divorce? We need to get this thing over with,” and Tinnon’s attorney would reply that they were trying to get a property settlement worked out “so that Woodrow could .go ahead.”

The time came when the checks sent by the insurance company for the Tinnon loan had to be returned to the company. Tanks-ley had paid down $5,000 earnest money on his contract with O’Reilly. Finally, under obligation to fulfill that contract and to protect his earnest money from forfeit, Tanksley on March 5, 1964 consummated his contract with O’Reilly, took a deed to the property, and on the same day made a •deed of trust to Prudential Insurance Company covering the 80 acres and other lands as security for a loan the proceeds of which he applied on his debt to O’Reilly. Tanks-ley’s attorney had previously told Tinnon’s attorney that Tanksley was going to close the purchase of the 200 acres in his name and close the loan. “The general idea” was for Tanksley to close that deal in his name, “and the 80 would be held for Woodrow” until Woodrow “got his divorce over with.” On March 12, 1964 Tanksley entered into a contract for the sale of the 80-acre tract to Dearmont Oliver and wife, without notice to Tinnon or his attorney and without giving Tinnon any opportunity to pay the balance due under his contract with Tanksley. The Tinnons settled their controversy over property rights on March 21, 1964 and were divorced on March 25, 1964. Tinnon, having learned of the sale of the 80 acres to the Olivers, filed this suit on May 6, 1964. Notice of lis pendens was filed on November 14, 1964. On November 17, 1964 Tanks-ley deeded the 80 acres to Dearmont Oliver and wife. The Olivers were not joined as parties in this action.

On his appeal Tinnon makes the point that the court erred in not granting specific performance, but if specific performance cannot be granted claims that he is entitled to a refund of the $4,000 he paid on the purchase price, plus interest.

There was no error in denying specific performance. Tinnon pleaded that defendants entered into a contract to convey the land tó another and proved that after suit was filed but before trial defendants executed a warranty deed conveying the title to Dearmont Oliver and wife. This placed it out of the power of defendants to perform their contract with Tinnon. The Olivers were not made parties to this action. Specific performance could not be granted. McKown v. Driver, 54 Wash.2d 46, 337 P.2d 1068[1]. “The specific performance of a contract for the purchase of real estate may be decreed only where it is possible for the defendant to convey the land. If he has no title, or has parted with the title after the execution of the contract, the court will not grant a vain judgment.” Saperstein v. Mechanics’ & Farmers’ Savings Bank, 228 N.Y. 257, 126 N.E. 708. This same problem was before this Court one hundred years ago in Brueggeman v. Jurgensen, 24 Mo. 87. What was said then is applicable here and now: “If we regard the suit as one to enforce the specific performance of a contract to convey lands, the petition is so framed that such relief can not be granted. It appears from the record that the title to the lot which the plaintiffs would have conveyed to them, is not in the defendant. He has passed it away for a valuable consideration, and his vendee is not made a party to the suit. Whether that vendee is a bona fide purchaser, it is not necessary to inquire, as he is not before this court. It would be a vain thing, and the plaintiffs would not be at all advanced, to make a decree vesting the title of the defendant in them, when it appeared that all the title the defendant ever had has been conveyed to another.” 24 Mo. 1. c. 88, 89.

The fact that a lis pendens was filed on November 14, 1964 does not change the situation. The notice of suit under § 527.260 is constructive notice to purchasers “only from the time of filing the notice. It would not be constructive notice to a purchaser who acquired his right before the notice was filed.” Abington v. O’Dell, Mo. Sup., 197 S.W. 339, 340. In Abington the party in question bought the land in 1905, paid $20 down and gave notes for $15 each, payable monthly, receiving a title bond at the time of purchase. The suit in question was filed in 1906, proceeded to judgment in 1908 and the purchaser received his deed in 1909. The notice of lis pendens was filed after he contracted for the land and before he finished his payments. The court held that the lis pendens did not affect him because “[h]e had a contract which gave him a right to the property”. Abington v. O’Dell is cited among others from various jurisdictions in 93 A.L.R. 404 in support of the statement that the purchaser is in no wise affected with notice of a suit where there is an executory contract for the purchase of land entered into prior to the bringing of a suit involving the title, without making the purchaser a party thereto. The Dearmont Olivers are not purchasers pendente lite as was the purchaser in Adrian v. Republic Finance Corporation, Mo. Sup., 286 S.W. 95 [8], As the owners of a prior executory contract for the purchase of the land they were not affected by the lis pendens filed eight months after the date their contract was executed. The fact that they received their deed after the suit was filed makes no difference under these facts. 34 Am.Jur. Lis Pendens § 12, p. 371; 54 C.J.S. Lis Pendens § 44a. Although there are some decisions to the contrary “It is well settled that the filing of a lis pendens is constructive notice only as against persons acquiring title or an interest in the property in litigation after the suit has commenced. A person whose interest existed at the commencement of the suit will not be bound by the proceedings unless he be made a party to the suit.” Four-G Corporation v. Ruta, 56 N.J.Super. 52, 151 A.2d 546, 551.

The right of Tinnon to recover the $4,000 must be considered in connection with Tanksley’s first contention on his appeal: that he (Tanksley) is entitled to judgment on Count II of the petition because the earnest money was forfeited by Tinnon’s failure to pay the balance of the purchase price on or before January 10, 1964.

The Tanksley-Tinnon contract contained this provision:

“It is understood and agreed that time is the essence of this agreement and if the seller has kept seller’s part of this agreement by furnishing good and sufficient title as herein provided, and the buyer fails to comply with the requirements of this agreement within ten (10) days thereafter, then the money deposited as aforesaid shall be forfeited by the buyer, as liquidated damages, and this agreement may or may not be thereafter operative, at the option of the seller.”

Because of his wife’s refusal to sign the loan papers Tinnon was unable to obtain the money on the loan commitment, with which to pay the balance due and close the Tanks-ley-Tinnon contract on January 10, 1964.

Ordinarily, as the authorities cited by Tanksley clearly indicate, a purchaser who without legal cause defaults in the making of payments under a contract of purchase, where time is of the essence, is not entitled to recover installments made on the purchase price. The general rule is without application, however, where the time requirements have been waived. “The vendor may waive the effect of the purchaser’s default and may estop himself to assert a forfeiture of the purchase money. * * * If the vendor waives the provision of the contract making time of the essence, he cannot forfeit the money paid, at least until he gives the purchaser reasonable notice of his intent to forfeit such payments.” 92 C.J.S. Vendor & Purchaser § 554e.

With full knowledge of Tinnon’s default in failing to pay the balance of the purchase price on or before January 10, 1964, the sellers treated the contract as still in force long after the latter date. They acquiesced in the delay. From time to time during January, February and March, 1964 they gave Tinnon’s attorney express and implied assurances that they would protect Tinnon’s interest and postpone the closing until the divorce was granted. There was a waiver by the sellers of Tinnon’s default in not paying the balance of the purchase price by January 10, 1964.

No notice of sellers’ intention to declare a forfeiture — no notice to Tinnon to-perform the contract on or before a certain day in the future — was given. In the absence of any such notice the sellers cannot enforce a right of forfeiture. McGrew v. Smith, 136 Mo.App. 343, 116 S.W. 1117, 1118; Chan v. Title Ins. & Trust Co., 39 Cal.2d 253, 246 P.2d 632 [4]; Howard v. Jackson, 213 Or. 447, 324 P.2d 757 [13, 14].

No forfeiture having occurred; the purchaser's default in failing to pay the balance by January 10, 1964 having been waived; the provision that time was of the essence having been waived and the sellers having repudiated the contract by selling the property to another, the purchaser was entitled to the return of the money he deposited on the purchase price.

Next Tanksley claims that he is entitled to judgment on his counterclaim for (1) recovery of the possession of the 80 acres; (2) damages for unlawfully withholding possession, and (3) rents and profits for the years 1964-1966, both inclusive.

Possession: At the time the contract was made between O’Reilly and Tanksley (on August 9, 1963) the possession was rightfully in Tinnon as tenant of O’Reilly. O’Reilly gave Tinnon notice to quit, effective December 31, 1963. Tinnon did not vacate pursuant to the notice but held possession through 1964 and was still in possession as late as May 26, 1965. Ordinarily the purchaser is not entitled to possession until he has obtained his deed, 92 C.J.S. Vendor & Purchaser § 284, p. 154, but the contract of sale may confer a right of possession prior to that time. The O’Reilly-Tanksley contract provided that “Possession of the various fields shall be delivered to the Purchaser upon harvesting of the fall crops.” When the fall crops were harvested was not shown, but assuming that they were harvested by December 31, 1963, the day on which Tinnon was obliged by the notice to vacate, Tanksley had the right to possession of the fields beginning January 1, 1964. The Tanksley-Oliver contract provided that “Possession of said premises [the 80 acres] shall be delivered to Buyer upon the execution of this agreement * * The agreement was executed on March 12, 1964. Tanksley was entitled to possession from January 1, 1964 to March 12, 1964, when his right to possession was contracted away. Accordingly, Tanksley had no right to possession at the time of trial and has none now.

Damages: Tanksley’s claim for damages is based upon unlawful withholding of the possession of the land. He claims that Tinnon’s illegal possession has prevented him from delivering possession to his grantees, the Olivers, and has subjected him to a claim for damages for failure to deliver possession. The Olivers as purchasers conceivably may maintain a claim for damages against Tanksley for delay in delivering possession, from the date they were entitled to possession (March 12, 1964). Benton v. Alcazar Hotel Co., 354 Mo. 1222, 194 S.W.2d 20 [5]. There is no evidence, however, that they have done so or that Tanksley has sustained any actual damage in this connection, and therefore an award of damages on this possibility at this time would be speculative and premature. The present decision is not to he construed as a bar to any future action between Tanks-ley and Tinnon if and when Tanksley shall have sustained actual damage by reason of claims made by the Olivers, based upon the unlawful withholding of possession from them.

Rents and profits: Rent is an incident to the reversion and passes with it unless the lessor severs the rent from the reversion by expressly reserving it. Equitable Life Ins. Co. v. Bowman, 225 Mo.App. 855, 32 S.W.2d 126; White v. Irvine, 324 Mo. 342, 22 S.W.2d 778 ; 92 C.J.S. Vendor & Purchaser § 288 a. The O’Reilly-Tanks-ley contract provided that the rental should go to the sellers “prorated to date of delivery of the deed and to the buyer thereafter.” The Deed from the O’Reillys to Tanksley was dated March 5, 1964 and recorded March 10, 1964. There is no evidence of date of delivery but assuming delivery on the day it was executed Tanksley’s right to rent commenced on March 5, 1964. The Tanksley-Oliver contract, dated seven days later, March 12, 1964, contains no reservation of rent and no express agreement as to rent, in which case ordinarily the grantees’ right to rent would commence as of the date of the conveyance to them (November 17, 1964). This contract, however, provided that possession be delivered to the grantees Oliver upon the execution of the agreement, and that the Olivers should pay interest on the note and deed of trust on the premises held by the Prudential Insurance Company from the date of the agreement (March 12, 1964). Under these facts Tanksley was not entitled to the rent after March 12, 1964, on the principle that one party should not have both the property and the purchase money or the proceeds thereof without accountability for either. Tanksley, having the right to the use of the property from March 12 to November 17, 1964, and being relieved of the payment of interest from March 12, is not entitled to the rents and profits during the interim. 92 C.J.S. Vendor & Purchaser § 288 d. Tanksley’s right to rents and profits, therefore, commenced March 5, 1964 and ended March 12, 1964. The evidence showed that the reasonable value of rents and profits was $25 to $30 per month. Although it approaches a de minimus situation, Tanksley’s right to rent is restricted to a recovery of $7.50.

Tinnon is not entitled to interest on the $4,000. Although Tanksley was in the wrong Tinnon was also at fault in not living up to his agreement to close the transaction on time. In this equitable action, in which the allowance or disallowance of interest is discretionary, we will not allow interest under these circumstances.

Accordingly, the judgment of the circuit court on Count I, denying specific performance, is affirmed. The judgment on Count II, for plaintiff and against defendant Tanksley, for $4,000 is affirmed. The judgment on the counterclaim for defendant Tanksley and against plaintiff is affirmed on the merits, but the amount of the award thereon is reduced from $1,600 to $7.50. The cause is remanded with instructions to set aside the original judgment of April 18, 1965 and enter a new judgment as of that date in conformance with the views expressed in this opinion.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: WOODLEY, Judge.

text:
    Curtis William WATTS, Appellant, v. The STATE of Texas, Appellee.
    No. 39775.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1966.
    Paul W. Wisdom, Jr. (Court-appointed on appeal only), Dallas, for appellant.
    Henry Wadé, Dist. Atty., Kenneth Blas-singame, Mike Everett, W. John Allison, Jr., and Kerry P. Fitzgerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is rape; the punishment, life.

Trial was had and notice of appeal perfected prior to January 1, 1966.

The prosecutrix, a 27 year old secretary, housewife and mother of two children aged 2 and 6, identified appellant as the family friend who, after a telephone conversation in which he was informed that her husband, who often worked at night, was not at home, forced his way into her apartment and with a pistol pointed toward her and against her head forced her to have sexual relations with him.

Appellant testified that he was at his home in another section of Dallas at the time in question and denied that he committed the offense. His defense of alibi was corroborated to some extent by the testimony of his six year old son.

The testimony of the prosecutrix as to appellant’s presence at her apartment was corroborated by testimony to the effect that fingerprints identical to those of appellant were found on the light bulb directly outside the back door of the apartment. The prosecutrix testified that she had left this light burning for her husband. When the officers arrived the bulb was loose in the socket and the light was not burning.

Appellant claims fundamental error in that the prosecution brought out facts which were not related to and shed no light on the criminal act charged and did so only because such facts were inflammatory and prejudicial. The complaint relates to proof of the fact that appellant, a colored man, had attended a recently integrated university, attended by both white and colored men and women; and the fact that appellant had been married three times.

In the absence of objection to the admission of such evidence, there is nothing before us for review in this regard. Bratton v. State, 171 Tex.Cr.R. 515, 352 S.W.2d 121, and cases cited in Texas Digest under Criminal Law ®=»1036(1).

Appellant’s remaining proposition of law is predicated upon the claim that the identification of the appellant by the prosecutrix was not positive because her assailant’s face was covered at all times while he was in the apartment, and her identification of appellant as the person who raped her was based only upon her acquaintance with him; knowing and recognizing his voice; the way he spoke to her; the manner in which he walked when approaching her; his size and the skin complexion of his arms and hands. 'For these reasons it is argued that the testimony upon which the state relied for conviction was obviously weak, and the failure of the state to introduce or satisfactorily account for its failure to introduce evidence shown to be available which would throw light on the question of appellant’s guilt was reversible error.

Appellant relies upon Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251, 261; Vasquez v. State, 145 Tex.Cr.R. 376, 167 S.W.2d 1030, and Buford v. State, 112 Tex. Cr.R. 593, 17 S.W.2d 1072.,

The rule which appellant seeks to invoke applies only in circumstantial evidence cases, and then only where the state’s evidence is “obviously weak.” Headley v. State, Tex.Cr.App., 386 S.W.2d 290; Bailey v. State, Tex.Cr.App., 385 S.W.2d 241, and cases cited.

The prosecutrix’ testimony that she was familiar with appellant’s voice and recognized it was direct evidence. Ramon v. State, 162 Tex.Cr.R. 365, 285 S.W.2d 225; Davis v. State, 128 Tex.Cr.R. 226, 81 S.W 2d 73.

The evidence being neither circumstantial nor weak, the rule relied upon by appellant has no application.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


text:
    Ex parte L. E. COLE.
    No. 39820.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1966.

      Jack A. Scruggs, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Ray Moses, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to Oklahoma.

The state introduced in evidence the Executive Warrant of the Governor of Texas; the Requisition of the Governor of Oklahoma; the application of the County Attorney of Texas County, Oklahoma for such Requisition; the affidavit of W. F. Rippetoe, President of Colonial Investment Corporation, a Texas corporation, made at the request of the Sheriff and County Attorney of Texas County, Oklahoma, dated February 10, 1966 and the information signed by said County Attorney and sworn to by W. F. Rippetoe on January 13, 1966.

The state also introduced a copy of the statute of Oklahoma which provides that every felony must be prosecuted by indictment or information in the district or superior court, and of the Oklahoma Statute which provides:

“Any person having any motor vehicle, trailer, appliance, equipment, or tool in his possession or under his control by virtue of a lease or rental agreement who willfully and fraudulently fails to return said motor vehicle, trailer, appliance, equipment, or tool within ten (10) days after the lease or rental agreement has expired, or who fraudulently secretes or appropriates said property to any use or purpose not within the due and lawful execution of his lease or rental agreement shall be guilty of embezzlement.”

The information upon which the Governor of Oklahoma issued his Requisition alleged that L. E. Cole, in Texas County, Oklahoma, on or about the 4th day of September, 1965, did commit the crime of Embezzlement in the following manner and form:

“That the said defendant made and executed a rental agreement with Colonial Investment Corporation, a corporation, whereby said defendant was given possession of the following described property, to-wit: a 1965 white Catalina Pontiac motor vehicle, I.D. #252695 R 10347, bearing 1965 Texas license #BWK 792, belonging to the said Colonial Investment Corporation, and of the value of $3600.00, and which said defendant agreed to return to said Colonial Investment Corporation upon the expiration of said rental agreement, which terminated on the 20th day of August, 1965, that said defendant, after gaining possession of the said motor vehicle as aforesaid, did unlawfully, wilfully, wrongfully, fraudulently and feloniously embezzle said motor vehicle and fail to return the same within ten days after the expiration of said rental agreement.”

The state relied upon the prima facie case made by the Extradition Warrant, Requisition and supporting documents, and offered no witnesses.

To overcome the prima facie case which the state made, the appellant testified in his own behalf; had three witnesses testify for him and introduced numerous receipts indicating his presence in various parts of the United States other than Oklahoma from June through December of 1965.

Appellant testified that the lease agreement for the automobile which is alleged to have been embezzled was executed by him in Lubbock, Texas on December 18, 1964. At that time his permanent place of residence was Dallas, Texas, and he gave his address as Texhoma, Oklahoma because he was working for a company whose offices were in Texhoma, Texas; when he visited the company offices he stayed in a motel that was located in the Oklahoma section of that town, and the United States Post Office was also in that section of the town. He testified that he left Texhoma on June 2, 1965, and had not been in Oklahoma since that time.

Paul Durham testified that he and Cole were together from July 15, 1965, and had left for North Carolina on July 16, 1965. He stated that they were together day and night until about September 2 or 3, 1965. During this time they were never in Oklahoma. He also contacted the appellant several times a week after the first part of September until October 15, 1965, and contacted him at least every ten days until January 1, 1966.

Jim Lusk testified that he was in contact with Cole by telephone several times a week after July 15, 1965, and stated that Cole was in North Carolina until September 10, 1965.

Thomas McArver lived in a nearby town in North Carolina, and testified that he saw Cole (the appellant) frequently between July 17 and September of 1965.

Mr. Rippetoe stated in his affidavit dated February 10, 1966: “That on the 20th day of August, 1965, the lease agreement was terminated under the terms of such lease, and notice as provided by said lease was given L. E. Cole, who was residing and working in Texhoma, Texas County, Oklahoma.”

If the offense alleged in the information was committed in the State of Oklahoma, the time of its commission was necessarily subsequent to the expiration of 10 days after August 20, 1965, and prior to January 13, 1966, when the information was filed.

The evidence introduced in behalf of appellant was sufficient to rebut and overcome the prima facie case made by the introduction of the Executive Warrant and supporting papers, and to show that appellant was not in the State of Oklahoma at the time the offense, if any, was committed. Ex parte Williams, 169 Tex.Cr.R. 192, 333 S.W.2d 146.

The order remanding appellant to custody is reversed and appellant is ordered discharged.