author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Olon HALE, Appellant.
    No. 50000.
    Supreme Court of Missouri, Division No. 1.
    Oct. 14, 1963.

      Thomas F. Eagleton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   HOUSER, Commissioner.

Olon Hale was charged with and found guilty of murder in the second degree. Punishment was assessed at imprisonment in the penitentiary for a period of 10 years. Judgment was rendered accordingly. Defendant appealed but filed no brief. It is our duty to examine all of the assignments of error, lettered A to Q, in appellant’s motion for a new trial. Supreme Court Rule 28.02, V.A.M.R.

From the state’s evidence and the inferences reasonably to be drawn therefrom the jury could have found these facts: Appellant went to Pearl Ann Moore’s third floor living quarters with a loaded pistol in his pocket for the purpose of trying to prevail upon her to resume their former status of living together out of wedlock. She told appellant that she did not want to go back to living with him, and did not want to see him anymore. Pearl said she was going to tell her sister (who lived on the second floor) and make appellant “get out of there.” Appellant did not want Pearl’s sister to know anything about their conversation. When he refused to leave Pearl “hollered” twice for her sister, whereupon appellant produced the pistol from his pocket and cocked it. He tried to restrain her from leaving the third floor, grabbed her by the arm, pushed and tried to choke her. Pearl went out in the hallway on the third floor to call for her sister. When Pearl reached the head of the stairs, in an effort to escape, appellant intentionally fired the pistol at Pearl, not at close range. The bullet struck Pearl an inch or less behind the left ear, inflicting a wound which caused her death.

Appellant’s evidence tended to show that the pistol was accidently discharged in the course of a friendly scuffle between appellant and Pearl for the possession of the gun, without any intent on his part to harm her.

Nine assignments of error relate to the rulings of the court in the admission of evidence.

A. The coroner’s physican testified' that he performed an autopsy on the body of Pearl Ann Moore and that the cause of death was a gunshot wound of the head with laceration of the brain and subdural hemorrhage. Appellant claims there was no evidence of the identity of the body upon which the autopsy was performed as that of Pearl Ann Moore. Pearl was taken to City Hospital No. 2, where she was treated, X-rayed and a tracheotomy performed. She expired 6½ hours after admission. The next day the coroner’s physician performed an autopsy on the body of a woman identified in his report and in his testimony as that of Pearl Ann Moore, in the course of which he removed a bullet from her head and turned the bullet over to a detective in the homicide department. The bullet, Exhibit 8, was. shown by ballistic tests to have been fired from the gun which appellant produced and’ identified at the trial as the gun with which he shot Pearl Ann Moore. This evidence was sufficient to identify the body upon which the autopsy was performed as that of Pearl Ann Moore.

B. Sergeant Fritsche testified that appellant first told the officers that he scuffled with the woman and shot her as she was facing him; that the officers told appellant that was impossible, due to the way the woman was hit, the bullet having entered the back part of her head; that appellant then changed his story and made the incriminatory statement upon which the state relied for a conviction. At the trial this evidence was objected to on the ground that it was a conclusion of the officer, not responsive to the question. In the motion for new trial this evidence was challenged for an entirely different reason, i. e., that “said testimony was hearsay, was proof of an extrajudicial statement by the witness and invaded the province of the jury and was highly prejudicial.” We cannot review this new and different assignment of error because it raises an objection not made at the time the testimony was offered. State v. Hernandez, Mo.Sup., 325 S.W.2d 494, and cases cited, 496 [3, 4].

C. It was established on cross-examination of Sergeant Fritsche that an official police report was prepared. The officer had read the report on the previous day at the homicide section of police headquarters. Counsel for appellant asked the officer if he would “go and get the report and bring it.” On objection the court said: “I sustain that objection, and I won’t order him to bring it, and it’s not admissible if he does bring it, * * Exception was taken to the ruling and the court’s remark on the ground that it was “totally unnecessary” and uncalled for; that counsel was trying to lay the foundation for possible impeachment of the officer by use of the police report; that the ruling informed the jury that defense counsel was attempting to produce illegal evidence and this prejudiced appellant in the eyes of the jury. There having been no showing as to the contents, materiality or relevancy of the police report, State v. Gilliam, Mo.Sup., 351 S.W.2d 723 [12], and no showing that the report would have impeached the officer, State v. Cochran, Mo.Sup., 366 S.W.2d 360 [1], no application for the issuance of a subpoena duces tecum under Supreme Court Rule 25.19, and no motion to produce and permit inspection under Supreme Court Rule 58.01, there was no error in sustaining the objection to the request that the officer fetch the report. The court’s suggestion that it would not be admissible was made in explanation of the reason why the court would not order the officer to produce the report. While unnecessary and better left unsaid, we find therein no prejudice to appellant’s rights.

D. Appellant complains that the court improperly limited the cross-examination of Sergeant Fritsche on the question whether during the interview between the sergeant and appellant notes were taken and incorporated in the police report. The record does not bear out the complaint. Counsel for appellant repeatedly asked the sergeant if notes were taken, and the witness repeatedly denied that any notes were taken or memo-randa made. We find at least nine instances in which counsel was allowed to make that very inquiry, and no instance in which the cross-examination was limited in this connection.

E. The court sustained the state’s objections to appellant’s cross-examination of the sergeant in which the sergeant was asked whether he corroborated the information in the report; whether the report dealt with the facts to which the witness had testified, and whether the parts of the report pertaining to what happened when the witness was present were true, on the ground that the report itself was the best evidence of its contents and that the question called for a conclusion. Appellant asserts this was error “for the reason that defense counsel was attempting to lay a foundation for the possible impeachment of Sgt. Fritsche’s testimony by use of the police report,” for ■“defendant had reason to believe that the testimony given in Court was in direct conflict with the report * * There is nothing in the record to indicate any basis for appellant’s stated belief that the witness’ testimony conflicted with the police report. The police report was not the witness’ report; was not prepared by him; was not used by him to refresh his memory while on the stand; was not referred to in his direct examination, and was not produced or introduced in evidence. A witness may not be cross-examined as to the contents of a written document which is not introduced in evidence, 58 Am.Jur., Witnesses, § 643, or not covered in the direct examination. 98 C.J.S. Witnesses § 391, p. 163, fn. 47; People v. Sain, 384 Ill. 394, 51 N.E.2d 557. There was no error in the court’s ruling.

F. Corporal Ferguson testified that Sergeant Fritsche had told appellant that his version of the shooting could not possibly be true, since the deceased was shot from the back. Appellant contends that it was error to receive this testimony over objection, because this statement is .based on hearsay, and is a conclusion which invades the province of the jury, and is therefore incompetent, immaterial and highly prejudicial. This complaint is without merit for the reason that Ferguson’s testimony was not offered as evidence of the truth of the fact asserted, but merely for the purpose of establishing the fact that the statement was made by the sergeant. The hearsay rule has no application where the extrajudicial utterance is offered “ ‘not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted * * *.’ ” Wigmore on Evidence, § 1766, quoted in Mash v. Missouri Pac. R. Co., Mo.Sup, 341 S.W.2d 822, 827; Bond v. Wabash R. Co, Mo.Sup, 363 S.W.2d 1, 5.

G. The assistant circuit attorney testified that as he arrived to interview appellant he encountered Lieutenant O’Neill who told him “this was one shot.” It is obj ected that the court erred in not declaring a mistrial; that this was hearsay testimony, highly prejudicial because based upon an erroneous conclusion by the police officers as to how the shooting took place, and that it invaded the province of the jury. On objection the court said to the jury: “ * * * whatever your verdict may be in this case, you are not to take into consideration what Lieutenant O’Neill told this man. That doesn’t bind this defendant in this case. That conversation didn’t take place. In this case, he is not bound by it. Don’t base your verdict on that, and don’t even remember it happened, just disregard it.” The court’s instruction constituted a sustaining of the objection, and the admonition to disregard went further on behalf of appellant than his counsel had requested. No other or further relief was asked; no motion was made for a mistrial. Appellant is in no position to complain. State v. Gerberding, Mo.Sup., 272 S.W.2d 230, 234 [5].

H. and I. The assistant circuit attorney, testifying about the interview with appellant stated that appellant at first maintained that he had pulled his gun out of his pocket and in the scuffle, as he was facing Pearl Ann, the gun went off accidentally. The assistant further testified: “I told him from the facts I had gathered it was impossible that this situation could have happened. * * * It was impossible this could have happened due to powder marks and so on. The girl was not shot as he was facing her, from what I had gained at that time. Mr. Hale told me — he said, ‘All right, I want to get this thing off my chest. I want to get it off my mind. I will tell you what happened.’ * * * Then I asked him what happened. He started to go into some details about the shooting. After two or three minutes’ conversation, I thought I was getting the truth.” There was an objection, a request to instruct the jury to disregard and to declare a mistrial. The court sustained the objection to the statement “I thought I was getting the truth” and directed the jury not to base their verdict upon the statement or take it into consideration in rendering a verdict, the judge saying “That’s stricken,” but denied the request for a mistrial.

Appellant now excepts to the assistant’s reference to impossibility due to (lack of) powder marks as “based on hearsay,” an invasion of the province of the jury and prejudicial. At the trial no objection was made on these grounds, or any other grounds, to the statement with reference to impossibility due to (lack of) powder marks, so no such point has been preserved.

Appellant further excepts to the suggestion in the assistant’s testimony that he thought he was getting the truth, as a conclusion made with intent to prejudice and that appellant was thereby prejudiced. While it would be improper for a prosecuting official to express his personal opinion by characterizing an incriminating statement as a recital of the truth, the assistant had not testified to any recital of facts by appellant in the course of which appellant had incriminated himself. The assistant’s gratuitous characterization of what he considered the truth related to his very general testimony that appellant “started to go into some details about the shooting.” He had not specified what details appellant had discussed. If this was error it was harmless, and was fully cured by the court’s direction to the jury to disregard it. State v. Cooley, Mo.Sup., 221 S.W.2d 480, 486 [16].

J. In his opening argument the state’s attorney told the jury that the circumstances of this case constituted murder in the second degree; that this was a serious case and that the type of verdict rendered would be serious not only to the defendant but also to the state, but did not specifically mention the matter of punishment. In the closing argument the state’s attorney argued that this was an unnecessary killing, asked whether this man should be freed to go out and commit other crimes, and then began to make the argument that a slight punishment in a case of this kind would encourage others to do the same thing. The latter argument was interrupted by objection of defense counsel after the state’s attorney said these words: “When you tap people on the wrist and say, ‘You have been a naughty boy, don’t do that any more,’ — Mr. Bruntrager: I object to that. This wasn’t covered. The question of penalty * * * was not covered in the first half of the argument, therefore I haven’t had the opportunity to answer this. I object to any reference now to this point in the last half.” The court, aware of Shaw v. Terminal Railroad Ass’n of St. Louis, Mo.Sup., 344 S.W.2d 32, being of the opinion that the ruling in that case has no application in criminal trials, overruled the objection. State’s counsel thereupon completed the “tap on the wrist” argument, pointed out that the jury was obliged not only to treat the defendant fairly, but had the burden of treating the state fairly, too, went on to say that “we have to put an end to this kind of killing,” and concluded by urging that defendant be punished “severely” by conviction of murder in the second degree. He did not ask the jury to fix the punishment at any specific number of years. Defendant’s counsel made no further objection after the first objection noted. Appellant now claims that the court erred in not sustaining his objection to the argument as to the penalty to be inflicted made in the last half of the closing argument which' “had not been mentioned in the opening final argument for the state for the reason that defense counsel was then unable to answer or reply to said argument.” This raises a serious question. Supreme Court Rule 4.22 requires candor and fairness on the part of a lawyer before the court. It declares that it is not candid or fair for a lawyer representing a side having the opening and closing arguments “to mislead his opponent by concealing or withholding positions in his opening argument upon which his side then intends to reply.” As in the trial of civil cases, Shaw v. Terminal Railroad Ass’n of St. Louis, supra; Goldstein v. Fendelman, Mo.Sup., 336 S.W.2d 661, and cases and authorities cited, l. c. 667 of 336 S.W.2d, so in the trial of criminal cases, it is improper and unfair for state’s counsel, in final argument, to refer to points upon which the state relies which were not mentioned in opening argument, for the reason that the defense is thereby deprived of the opportunity to answer such new points. We approve the following excerpts from 23A C.J.S. Criminal Law, § 1089, pp. 125, 126: “The primary purpose of the concluding arguments of counsel is to enlighten the jury. The opening final argument for the people is intended to permit a statement of the case and of the law and the evidence and to uphold the right to a conviction, and the prosecuting attorney should disclose therein all the points on which he relies in the case, * * * thereby giving counsel for accused a fair ■opportunity to answer him, * * *. The argument for accused permits an answer to the prosecution on the law and the facts and the presentation of the defense. * * * The prosecuting attorney is entitled to reply to the argument for accused, but in so doing he cannot introduce any new line of argument not made in his opening argument. He must confine his closing argument to a fair discussion of the issues and to answering the argument of the defense. Where the prosecutor * * * presents points not referred to in his opening argument, or in the argument of accused’s counsel, * * * the latter may and should be permitted to reply to the new arguments * * * offered * * (Our emphasis.) Whether the judgment should be reversed depends upon whether the trial judge, who has a large measure •of discretion in such circumstances, abused his discretion, in the totality of the attendant circumstances. As in civil cases, Sullivan v. Hanley, Mo.App., 347 S.W.2d 710, the question in each criminal case must be determined upon its own peculiar facts. In his opening argument state’s counsel, while not specifically referring to the penalty to be inflicted, did argue that the case was a serious one, and that these circumstances constituted murder in the second degree. Second degree of murder carries with it a minimum penalty of 10 years, § 559.030, V.A.M.S., a matter as to which the jury had been informed by the instructions. There was, therefore, an oblique or implied reference to the question of penalty in the state’s opening argument, which defense counsel had an opportunity to answer. (We are not advised whether defense counsel did so, because defense counsel’s argument was not preserved in this transcript.) In view of the above references in the state’s opening argument; the fact that in the closing argument state’s counsel did not urge the jury to inflict any particular number of years’ imprisonment as a penalty in this case, and that the only argument objected to (the “tap on the wrist, naughty boy” argument) was a comparatively mild and dispassionate suggestion, the final argument in this case should not be branded as improper and unfair. In consideration of these facts, plus the fact that defense counsel did not object when state’s counsel became more direct and pointed in pressing the penalty argument, and did not ask for an opportunity to reply thereto, Sullivan v. Hanley, supra, 347 S.W.2d, l. c. 716 [6]; 88 C.J.S. Trial § 169, p. 339, we find no abuse of discretion. That appellant was not prejudiced by the penalty argument and the lack of opportunity to reply thereto, is decisively and affirmatively demonstrated by the fact that the jury assessed the minimum penalty for second degree murder.

K. In the course of his argument the assistant circuit attorney said: “He [the defendant] wants you to think he was up there hugging and kissing and everything was hunky-dory. Why would he pull this gun out of his pocket anyway if everything was lovey-dovey? Why would he whip that gun out, maybe happy that the bullet was fired at her head — he hasn’t demonstrated any sympathy to me in this courtroom. I have seen him laugh and smile throughout the trial.” Defense counsel objected to this as improper argument. After the assistant made it clear that he did not mean demonstration to him but meant “demonstrated any sympathy in the courtroom,” the court overruled. There was no motion for a mistrial. Now it is urged that the court erred both in overruling the objection and in failing to declare a mistrial; that the argument was based upon a conclusion, and not on any evidence, and was highly inflammatory and prejudicial. If the argument was improper, appellant is precluded from claiming error in not declaring a mistrial because appellant did not request the court to declare a mistrial. State v. Michels, Mo.Sup., 255 S.W.2d 760. But there was no impropriety in the argument if the facts upon which it was based were true. Appellant has not shown that the statement about appellant’s apparent lack of sympathy and pleased and carefree attitude about this death was not justified by the facts. The state had a legitimate right to comment upon the accused’s demeanor in the courtroom. In State v. Harmon, Mo.Sup., 296 S.W. 391, the state’s counsel referred to the “snarling look” the defendant gave the prosecuting witness during the trial. This Court, commenting on the fact that the trial court was cognizant of the defendant’s conduct in this respect, sustained the action of the trial court overruling defendant’s objection to this reference.

L. At another point in the state’s argument, in attempting to account for the fact that appellant changed his first story that the gun was discharged while they were struggling, the assistant circuit attorney argued that appellant’s conscience probably bothered him; that that is why he gave the incriminatory statement. Objection was made when the assistant argued “His conscience, probably, like the officer said — many times when a man commits a deed like this, his conscience bothers him.” The ground of the objection was that there was no evidence of that in the record. There is a sufficient evidentiary basis for the argument, if such is needed, in Sergeant Fritsche’s testimony: “We told him the bullet entered the back part of the head. He said, ‘All right, I want to make a clean breast of it. I will tell you just what happened.’ ” Furthermore, there was evidence that after appellant fled from the scene of the shooting he made phone calls to Pearl Ann Moore’s house and to the hospital, inquiring as to her condition, and when he found that she had died from the gunshot wound, gave himself up to the police. The conscience argument was within the field of legitimate comment.

M. After some deliberation the jury asked for the signed statement of appellant and three photographs of the scene of the shooting. Over objection the court delivered these exhibits to the jury. The objection is that this singled out and gave undue emphasis to the signed statement “and completely ignored the oral testimony of defendant and the fact that he denied the material parts of” the signed statement. This was a matter resting within the sound discretion of the trial court, and no abuse of discretion has been shown. State v. Howard, Mo.Sup., 360 S.W.2d 718; State v. Smith, Mo.Sup., 357 S.W.2d 120.

N. After the trial court read the written instructions to the jury the court orally instructed that they were now free to discuss the case freely among themselves in arriving at a verdict, and no longer subject to the instruction given during the trial that they not talk about the case among themselves, “because the point has been reached in the trial where the case is submitted to you, and the law permits you, and I feel sure you will, discuss the case as freely among yourselves as will enable you to determine and find out what the verdict of all 12 of you may be. Any verdict, gentlemen, to be legally accepted in a case of this kind and to be legal must be agreed to by all twelve of the jurors. A divided verdict is not permitted in law in a case of this kind.” It is now objected that the giving of this oral instruction was error in that “this is not the law of the .State of Missouri, and that it indicated to the jury that they must reach a verdict in the case and did not permit the exercise of free will of the jurors and was highly prejudicial.” We rule that the oral instruction is the law; that it did not force the jury to return a verdict in the case or interfere with the exercise of the free will of the jury. The instruction requiring a unanimous verdict in a criminal case is ordinarily and more properly given in written form, but this is not a part of the “law of the case” which under Supreme Court Rule 26.02 must be in writing, and is not an oral “summing up,” comment upon the evidence or charge as to a matter of fact, within the interdiction of Supreme Court Rule 26.09. We find no prejudice to appellant’s rights in this connection.

It is further urged that the court should have instructed on self-defense. The claim is that there was evidence that deceased had forced appellant’s hand in such a position that the gun pointed toward him just prior to his pushing the gun away from him and its discharge.

Self-defense in homicide involves a claim that a life was taken by an intentional, affirmative act, made necessary upon reasonable apprehension of a design on the part of the deceased to do the defendant great bodily harm. An accidental homicide involves an unintentional taking of human life. The two concepts are inconsistent. The defense in this case was that this was an accidental shooting; the unintentional discharge of the pistol in the course of a struggle for its possession. The evidence supported this theory and did not support any theory of self-defense.

Appellant testified there were no bad feelings between the two. That morning he had taken Pearl around to the used car lots, looking for an automobile to purchase. He testified that just before the shooting they were “playing around,” talking, hugging and kissing, as she lay on the bed. There was testimony that they liked to play with guns; that on several previous occasions they had been seen in a “tussle,” a friendly game in which they would try to take the gun away from each other. Appellant testified that on this occasion, when Pearl got up out of the bed, he grabbed her and put his arm around her; that he pulled the pistol out of his pocket and cocked it; that he did not mean to cock it; that Pearl grabbed the pistol and they engaged in a “tussle” ; that Pearl shoved appellant and he shoved her; that the gun was pointed at him and he saw the barrel of the gun; that he took both hands and twisted the gun between them, her body bent, and the gun discharged. He claimed that he did not shoot it; that he did not have his hand on the trigger, and could not say whether he or she hit the trigger; that the “main thing” he was trying to do was not to touch that trigger. There is a complete absence of evidence of self-defense. Instead of showing an intentional shooting in defense of his person, upon reasonable apprehension of a design on the part of deceased to do him bodily harm, appellant’s evidence indicates that he was desperately trying not to shoot the gun; that he grappled with her, not in an effort to shoot her, but to prevent the discharge of the gun; and that the killing was accidental. “His positive testimony that the shooting was accidental and unintentional would clearly negative any possible inference of self-defense based upon other facts appearing in his testimony. In this situation, it follows that there was no substantial evidence upon which a self-defense instruction could have been based.” State v. Baker, Mo.Sup., 277 S.W.2d 627, 630 [5].

O. and P. These assignments raised related questions, and will be dealt with together. In them appellant complains of the failure of the court to give an instruction on manslaughter by culpable negligence. He says the instructions ignored the evidence from which the jury could have found that the gun was accidentally, not intentionally, discharged but could have further found that the killing occurred under circumstances which would not completely exonerate appellant, and therefore “the jury was deterred from finding the defendant guilty of the crime of manslaughter,” with its lighter punishment. Appellant refers to the evidence that he was handling a loaded and cocked gun, knowing that it could be easily discharged, but that he did not discharge it intentionally. We add to this the evidence that he exhibited this cocked and dangerous pistol in the presence of Pearl, and near her, with knowledge on his part of her penchant for playing with guns and her history of playfully scuffling for the possession of guns, and that he permitted her to grab the pistol, thus precipitating the struggle which resulted in the tripping of the hammer and the killing of Pearl. This evidence would have justified the giving of an instruction on manslaughter by culpable negligence. State v. Baker, supra, 277 S.W., l. c. 630 [8], The court did not give an instruction authorizing the jury to find appellant guilty of manslaughter by culpable negligence, but this was not error under the circumstances. The court gave Instruction No. 2 on the subject of manslaughter. After telling the jury that if they found defendant not guilty of murder in the second degree, they would consider whether defendant was guilty of manslaughter, and defining manslaughter, as the killing of a human being not herein declared to be murder in the second degree or excusable homicide, the court instructed the jury to find defendant guilty of manslaughter if he intentionally shot Pearl, without malice and without premeditation, and under such circumstances that such shooting was not excusable homicide, and to acquit him of manslaughter if the jury failed to find these facts. Excusable homicide was defined as the accidental killing of another. The last paragraph of Instruction No. 2 follows:

“You are further instructed that if you find and believe from the evidence in this case that the defendant, Olon Hale, removed the revolver or pistol shown to you in the evidence in this case, from his pocket and that thereafter said defendant and the deceased, Pearl Ann Moore, engaged in a struggle and that said revolver or pistol was discharged and shot and killed said Pearl Ann Moore, without the defendant, Olon Hale, using or operating the mechanism of said gun which would cause said gun to discharge or that said gun was discharged unintentionally by the defendant, Olon Hale, at the time that the deceased, Pearl Ann Moore was shot and killed, then you will find that the shooting and killing of said Pearl Ann Moore was accidental; and was excusable homicide.”

The last paragraph directed the jury under the stated hypothesis to acquit (1) if he did not use the trigger, or (2) the gun was discharged unintentionally by appellant, without any other or further qualification, regardless of the circumstances which provoked the struggle; that is to say, even though the jury may have found that appellant exhibited a complete disregard and indifference for human life in cocking the pistol, exhibiting it, and tempting Pearl into a struggle for its possession, and therefore was culpably negligent. Appellant complains that the jury was not instructed under these latter circumstances to convict him of manslaughter. The error, if any, in not instructing on manslaughter by culpable negligence was an error in favor of the appellant and against the state, and he may not complain. Here, instead of instructing on manslaughter by culpable negligence, under which a conviction would have been possible, appellant was given a broad and all-inclusive instruction on accident more favorable to him than he was entitled to, under which he could not be convicted but had to he acquitted on the ground of excusable homicide if the jury found that appellant removed the pistol from his pocket, the parties engaged in a struggle, the gun was discharged without appellant using the trigger, or the gun was unintentionally discharged by appellant, i. e., upon the finding of any kind of an accidental discharge, even if preceded by negligence of the most damning kind. A kindred case is that of State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49, in which defendant, convicted of second degree murder, contended on appeal that the court, which gave an instruction on manslaughter, failed to adequately instruct on that subject; that if properly drawn he would have been convicted of the lesser crime, if any. The given instruction defined manslaughter as any homicide not herein declared to be murder in the second degree or excusable or justifiable homicide, defined justifiable homicide as the killing of another in the lawful defense of one’s person, and excusable homicide as the accidental killing of another, and submitted the question whether appellant killed the deceased without malice and premeditation, and in such circumstances that it was not justifiable or excusable homicide or self-defense. Not satisfied, appellant claimed error in failing to submit the manslaughter issue specifically on heat of passion engendered by lawful provocation. In overruling this assignment, this Court pointed out that the cases hold “that where, as here, excusable homicide is defined merely as an ‘accidental’ ‘unintentional’ killing, without more, the error if any is in defendant’s favor, and he cannot complain.”

Furthermore, Instruction No. 2 directed the jury to “find the defendant not guilty of manslaughter” if the jury did not find, beyond a reasonable doubt, “each and all of the facts” submitted, which included a finding of intentional shooting. Under Instruction No. 2, it would have made no difference how negligent appellant may have been, if the killing was unintended. See State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 321 [16].

Points O. and P. are without merit.

Q. Finally, appellant attacks that part of Instruction No. 2 which appellant claims reads as follows: “ ‘Manslaughter,’ is the killing of a human being not herein declared to be Murder in the Second Degree and ‘excusable homicide’ ” on the ground that it fails to properly define the crime of manslaughter, and is confusing and misleading in that it makes murder in the second degree and excusable homicide synonymous, in that the word “and” should be “or.” The assignment that the instruction “fails to properly define the crime of manslaughter” is too general to preserve anything for review. State v. Tucker, 339 Mo. 101, 96 S.W.2d 21, 25 [4], The assignment that the instruction is confusing and misleading in that it makes second degree murder and excusable homicide synonymous because the two are connected by the conjunction “and” instead of the word “or” is based upon a mistaken idea of what the transcript actually shows. The transcript, as it came to this Court, shows the word “and” blocked out and the word “or” placed above, so that the definition appears in the transcript as follows: “ ‘Manslaughter,’ is the killing of a human being not herein declared to be Murder in

or

the Second Degree and ‘excusable homicide.’ ” We must presume, in the absence of a showing to the contrary, that the instruction went to the jury in the disjunctive and not in the conjunctive.

We have examined the indictment, verdict, judgment and sentence, as required by Supreme Court Rule 28.02, and find them in proper form and sufficient.

The judgment is affirmed

COIL and WELBORN, CC., concur.

PER CURIAM.

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

HOLLINGSWORTH, HYDE and HOLMAN, JJ., concur.

DALTON, P. J., concurs in the result.

      . Compare State v. Lora, Mo.Sup., 305 S.W.2d 452 [9].

      . See State v. Miller, Mo.Sup., 368 S.W.2d 353, and cases cited, l. c. 357, on the availability of such procedure -where, as the record here indicates, there was merely a suspicion or possibility that the report contained impeaching material.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert Joseph LANE, Appellant.
    No. 49969.
    Supreme Court of Missouri, Division No. 1.
    Oct. 14, 1963.
    William B. Spaun, Hannibal, for appellant.
    Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
   WELBORN, Commissioner.

Geraldine and Vincel Avery, husband and wife, resided at 1714 Vermont Street in Hannibal, Missouri. Robert Joseph Lane, the appellant, married the Avery’s daughter. Lane, who was known as Bobby Joe, and the Averys had been on friendly terms until some difficulty arose between Lane and Vincel, apparently about a boat in which each had an interest. (According to Lane’s wife, the difficulties with the boat had caused her parents to stop speaking to her and her husband shortly after the Christmas preceding the assault in question.)

On February 9, 1962, the Averys stopped at Bud Head’s bar in Hannibal to cash Vincel’s paycheck. Geraldine drank a soda and Vincel a beer. Bobby Joe was in Head’s, playing shuffleboard, when the .Averys left at about 4:45 P.M. No conversation passed between the Averys and Lane in the bar, although Lane said that he spoke to the Averys and they refused to speak to him.

The Averys went to their home and, after they had supper, Vincel went to bed at about 5:45 P.M. Around 6:15, Geraldine, who was in the living room watching television, heard a knock on the back door. She went to the door and turned on the light and saw Bobby Joe standing at the back door, holding what she described as ■“a little short 32” revolver. Geraldine said that she “kind of froze” when she saw the gun and Bobby Joe opened the door and walked in. She stepped back into the hall and Bobby Joe put the gun into her chest. "Geraldine asked what he was doing and Lane replied, according to her, “I am going to shoot you and I am going to kill you. Is Vincel home?” Geraldine said he was not and asked Bobby Joe to put the gun down. He said: “I am going to shoot him and going to kill you. Is Vincel home?” Geraldine again replied: “No.” The gun ' was being pressed into her chest so hard it was hurting her and she said, “Bob, if you have got to shoot, shoot me, but leave him alone.” Lane then pulled the trigger and .shot Geraldine through the chest. Geraldine called to Vincel to “Get out!” and ran through the kitchen, meeting her husband just as he came from the living room into ’ the kitchen. She told him, “Bob shot me.” She then ran through the front door to a neighbor’s house.

Vincel had jumped out of bed when he heard the shot which wounded his wife. He met her near the kitchen as she was going through the front door. As she left, Bobby Joe fired one shot at Vincel from about seven feet, the bullet striking Vincel in the abdomen. Vincel ran into the bedroom and tried to hide under the bed. Bobby Joe followed and found him. Vin-cel, according to his testimony, said : “Bobby, don’t shoot me because you have caused enough trouble. Don’t shoot no more because you have caused enough trouble.” Bobby Joe, according to Vincel, said: “Don’t touch me, Vince, I’ll kill you!” Vincel got up and walked toward Bobby Joe and tried to run past him. Just as he reached the door of the bedroom, Bobby Joe fired again, the bullet striking Vincel in the shoulder. Vincel then ran out the front door to the neighbor’s house to which his wife had gone.

Vincel and Geraldine were taken to a hospital for treatment of the wounds, from which they recovered. An operation was performed upon Vincel and one bullet removed and eight perforations of the intestines repaired. The doctor who performed the operation stated that, had not attention been given promptly, death would likely have resulted from the wounds.

The police were called to the Avery residence and the appellant was apprehended in an automobile some distance away a short time after the shooting. The officer who arrested him took a thirty-two caliber pistol and twenty rounds of ammunition from him. The pistol was identified as the weapon used in the assault and was introduced in evidence. Lane was taken to the police station where he told the officer that he and his father-in-law and mother-in-law had gotten into an argument the day before and again that day over a boat and motor and “he was going to kill the son-of-a-bitch.” He later signed a statement which was introduced into evidence at the trial in which he admitted going to Avery’s house, taking the gun. He said: “I had the intention when I went up there if he got smart with me I would kill him and I didn’t intend to hurt her.” He stated that they had had several arguments over the boat and motor.

By an information filed in the Hannibal Court of Common Pleas, Lane was charged with assault with intent to kill with malice aforethought for the assault upon Vincel. A change of venue was taken to Pike County. Upon trial there, evidence establishing the foregoing facts was introduced.

The defense offered evidence designed to show that Lane was insane at the time of the shooting. No medical testimony was offered. However, several members of his family testified that they saw him in the county jail shortly after his arrest, that his pupils were dilated and that he appeared to be in a daze or stupor. The court instructed on the defense of insanity.

The jury found Lane guilty and fixed his punishment at ten years imprisonment in the State Penitentiary. This appeal is from the judgment and sentence imposed upon such verdict.

On the appeal here, appellant contends that his motion for a directed verdict of acquittal at the close of the evidence should have been sustained. He also contends that, if the evidence shows him to be guilty, it is of a lesser offense than that for which he was convicted. However, the foregoing recital of the facts can leave no doubt that the evidence did show an assault with malice aforethought.

Malice aforethought is the element which distinguishes the degrees of assault with intent to kill or do great bodily harm. Sections 559.180 and 559.190, RSMo 1959, V.A.M.S. “Malice aforethought” means the intentional doing of an unlawful act which was determined upon before it was executed. State v. Hagerman, Mo.Sup., 244 S.W.2d 49, 52; State v. Ayers, Mo.Sup., 305 S.W.2d 484, 486. The evidence was certainly sufficient in this case to justify the jury’s finding of malice aforethought. Premeditation was evident from the testimony of the victim of the assault as well as from the statement of the appellant. Some effort was made by the defense to explain the appellant’s action by intoxication, inasmuch as he had spent a considerable portion of the afternoon at Head’s bar. However, no witness testified that Lane was intoxicated and, in his statement, he denied that he was. Furthermore, voluntary intoxication would not have negatived malice aforethought in any event. State v. Lloyd, Mo.Sup., 217 S.W. 26. We are of the opinion that the evidence amply supports the verdict of the jury, finding appellant guilty of an assault with intent to kill with malice aforethought.

The appellant’s motion for new trial complains that, on the day of trial, the court permitted the prosecuting attorney to file an amended information in the case. In his brief, he contends that the original information wholly failed to charge an offense and that it could not be amended. The amended information, omitting formal portions, read as follows:

“ * * * said Defendant, Robert Joseph Lane, * * * did then and there wilfully, unlawfully, feloniously, on purpose, and with malice aforethought, make an assault upon the body of one Vincel Avery, then and there being, with a deadly weapon, to-wit, a thirty-two caliber pistol, loaded with gun powder and leaden balls, which he, the said Robert Joseph Lane, then and there had and held, with the felonious intent him, the said Vincel' Avery, then and there, on purpose, and,' of his malice aforethought, feloniously■ to kill, * * * ”

The original information differed from the amended information in that the italicized words were not in the original information. In addition, the words, “and murder,” appeared following the word, "kill,” in the original information.

The appellant cites no authority in support of his contention that the original information was fatally defective nor does he cite any authority for the application of the rule for which he contends, i. e., that a fatally defective information may not be amended. On the other hand, Supreme Court Rule 24.02, V.A.M.R., recognizes the right to amend an information at any time before verdict if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. Compare this provision with that found in Section 545.290, RSMo 1959, V.A.M.S., which permitted amendments as to form or substance prior to trial and as to matters of form and variance at trial. In a recent case, the St. Louis Court of Appeals did state that a complaint charging violation of a city ordinance, which specified a repealed ordinance and thereby failed to charge an offense, could not, under Rule 24.02, be amended in the St. Louis Court of Criminal Corrections. City of St. Louis v. Vetter, Mo.App., 293 S.W.2d 140. However, that court, in the case of State v. Broeder, 90 Mo.App. 156, l. c. 167 (not cited in the Vetter case), stated:

“And it seems to us that when the right is given to amend, as to both form and substance, as it is in section 2481 [RSMo 1899], supra, the right can not be restricted to such defects as would be cured by the statute of jeofails, after verdict, but exists even if the information failed to state any offense, if it can be clearly gathered from what is stated in the information that the prosecuting attorney intended to charge a particular offense or the violation of a specific statute.”

In the case of State v. Kusel, 29 Wyo. 287, 213 P. 367, the Supreme Court of Wyoming made an exhaustive study of the question of the right, under a statute similar to our Section 545.290 and Rule 24.02, to amend a defective information. The Wyoming court cited State v. Broeder, supra, and concluded that it correctly stated the rule which should govern such cases. Although this court may have never expressly stated such rule, it has certainly applied it. Thus, in State v. Murphy, Mo.Sup., 347 S.W.2d 230, we approved an amendment, under Rule 24.02, of an information charging stealing by means of deceit by which there was inserted a provision that the defendant acted feloniously, intentionally and unlawfully to appropriate the property of another to his own use and thereby deprive the owner of the use thereof. This amendment added elements of the offense necessary for a valid information and this court held the amendment to be within the purview of Rule 24.02.

In this case, the original information charged a felonious assault, with malice aforethought, upon Avery with a deadly weapon with intent to kill. The charge sets out the basic elements of the offense proscribed by Section 559.180. The distinguishing element of the offense under that section, malice aforethought, was specified. Whether or not the original information was in all respects sufficient, there can be no doubt that the prosecutor intended to charge the offense under Section 559.-180. The amended information, likewise, charges the offense under that section. Thus there was no change in the offense charged in the original and amended information. The appellant in nowise shows that he was prejudiced by the filing of the amended information. Therefore, the court properly permitted its filing. There being no change in the offense charged, appellant’s objection that he was entitled to another preliminary hearing before the filing of the amended information is without merit. State v. Tunnell, Mo.Sup., 296 S.W. 423. He was actually arraigned on the amended information so his objection in that regard is unfounded.

In his motion for new trial and brief, appellant objects to the court’s refusal to permit the introduction of testimony designed to show that, during the trial, Vincel Avery had been intoxicated and had been excluded from the courtroom because of drunken and disorderly conduct. Upon cross-examination of Vincel, appellant’s counsel had asked him whether or not he had been drinking on the day of the trial and he answered, “No.” In appellant’s case, a deputy sheriff, who was acting as bailiff in the courtroom, was called as a witness and asked whether or not the court had ordered him to remove Vincel from the courtroom. An objection to this question was sustained. Counsel for appellant then made an offer of proof to show that Avery was intoxicated when first called as a witness for the State and that a recess was called for that reason. Counsel stated: “We feel that it is very important at this time to be able to show the true nature and type of person that the complaining witness is and his regard for the jury and this court.” The offer was rejected and in his motion for new trial appellant assigns this ruling of the court as error. In support of this assignment, the appellant cites State ex rel. State Highway Commission v. Fenix, Mo.App., 311 S.W.2d 61, and State v. Davis, Mo.Sup., 190 S.W. 297. Neither of these cases bears in any respect on the objection presented. Actually, the “true nature and type of person” that Avery was was not an issue in the case. His credibility as a witness could have been impeached by showing that his general reputation for truth and veracity was bad. However, such impeachment could not be made by a showing of a poor general reputation for morality, which apparently was the purpose for which the testimony was offered. State v. Williams, 337 Mo. 884, 87 S.W.2d 175, 180, 100 A.L.R. 1503; State v. Kain, Mo.Sup., 330 S.W.2d 842, 845.

The appellant did not contend that his testimony would have shown that Avery was drunk at the time that he actually testified, a matter which might have had some bearing upon his credibility. 3 Wigmore on Evidence, (3rd ed.), § 1005, p. 665. Nor was the evidence admissible to contradict Avery’s denial on cross-examination that he had been drinking. The inquiry related to a collateral matter and extrinsic testimony to establish such matter was properly excluded. State v. Messley, Mo.Sup., 366 S.W.2d 390, 393.

The appellant’s motion for new trial contains several other specifications of error which have not been presented in his brief in this court. They are, therefore, deemed' to have been abandoned. Supreme Court Rule 28.02.

We have examined the matters of record and find no error in them.

The judgment of the trial court is affirmed.

COIL and HOUSER, CC., concur,

PER CURIAM.

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

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    J. W. FARMER, Plaintiff (Appellant), v. Chester ARNOLD, Defendant (Respondent).
    No. 49895.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.
    Rehearing Denied Oct. 14, 1963.

      Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, O. J. Taylor, Springfield, for appellant.
    Stewart, Reid & Turner, Kenneth H. Reid, Springfield, for respondent.
   BARRETT, Commissioner.

On December 31, 1956, the plaintiff Farmer, driving a 1957 Chevrolet automobile south on Dade County Road D, was involved in a collision with a 1941 Buick automobile driven north by the defendant Arnold. On December 20, 1959, Farmer instituted this action against Arnold to recover $15,000 for personal injuries and $1,-000 property damage, alleging as grounds of recovery the humanitarian doctrine and six specifications of primary negligence. In circumstances hereinafter noted the circuit court sustained Arnold’s motion for summary judgment and Farmer has appealed asserting among other reasons that there was a genuinely controverted issue of fact to be determined and that therefore the remedy of summary judgment was not appropriate.

In response to Farmer’s action for damages Arnold’s answer and motion for summary judgment set up the fact that on January 8, 1957, Farmer paid him the sum of $50 for which, in the language of the document presented by Farmer and signed by Arnold, he “released John William Farmer from all claims and causes of action of the undersigned arising from the above described accident.” This release was sought and executed in these circumstances: Farmer had no automobile liability insurance and was therefore subject to the Motor Vehicle Safety Responsibility Law, Ch. 303, RSMo 1959, V.A.M.S. Since he had no liability insurance and the total damages exceeded $100, it was Farmer’s duty to report the fact of the accident to the motor vehicle safety unit and either deposit security in a sum “determined by the director” of revenue or furnish evidence that he “has been released from liability.” RSMo 1959, §§ 303.030, 303.040, 303.070. After consultation in Jefferson City with the then supervisor of the safety responsibility unit, Farmer was furnished a release form prepared by the department and it was this form that Arnold executed. In addition to the quoted provision releasing Farmer of all claims and causes of action the document recites that it "authorizes the Safety Responsibility Unit to accept this certificate as satisfactory evidence of such release from liability as required by the Safety Responsibility Law.”

In connection with the release Farmer first claims that the records of the safety responsibility unit are confidential and that therefore the release was not admissible in evidence and consequently could not support a 'summary judgment. In the second place,.Farmer asserts that the release did not comprise the entire agreement of the parties. He says that the release was obtained by him for the sole and specific purpose of complying with the safety responsibility law so as to avoid the loss of “his driving privileges.” He claims that immediately following the accident he and Arnold entered into an oral agreement “whereby each agreed to pay the other for his damages” and that this oral contract, which was not reduced to writing, was the entire agreement between the parties. And he urges that the actual terms of this agreement was a question of fact for a jury’s determination, at least, he contends, it made summary judgment procedure inapplicable.

Upon the hearing of the motion for summary judgment the parties stipulated that parts of depositions could be considered and they are set forth in this transcript. The defendant used the deposition of the present supervisor of the safety responsibility unit to prove the filing of the release. In his deposition Farmer testified to the oral agreement. In part he said that he took the release from Arnold, “Yeah, a release to send to the State. I didn’t want to fool with it. I didn’t have any insurance and he said he’d pay or take care of my car and I had just got my car and hadn’t gotten any insurance and I talked to the State about it, I went up there and they said the thing to do was just to get a release ‘and then you can settle with the insurance company.’ I just took a release from him.” Or later, he testified, “I got my release — I didn’t have any insurance and they told me that where I didn’t have any insur-. anee, if it was his fault why he didn’t have . any comeback. His old car wasn’t worth over $50.00 and he offered to take $50.00» Well, I couldn’t afford, well, just like it is now, it is three years and the darned thing ain’t settled, I couldn’t afford for $50.00 when he said he’d pay my damages- and my doctor bills, I took his word for it, which I thought he would.” Or again, “He said he’d take care of my damage and I went to the State and I didn’t have any insurance and of course under the law you’ve got to put up $15,000 and it wasn’t but a $50.00 car, an old $50.00 car, and they said if they was me they would just pay him for it.”

It is not necessary to a disposition of this cause to attempt an authoritative deter-' mination of whether Farmer’s “parol evidence concerning agreements. prior to or contemporaneous with the execution of (the) release must be ignored.” England v. Yellow Transit Co., 240 Mo.App. 968, 975, 225 S.W.2d 366, 368. In this connection it is sufficient to note in passing that the parties have misconceived the applicable theories and have confused the rules relating to best and secondary evidence (Ch. XIX, p. 701, 32 C.J.S. Evidence) and the rules relating to parol or extrinsic evidence affecting writings. Ch. XX, p. 784, 32 C.J.S. The precise point is illustrated by some of the cases relied on, for example Hart v. Riedel (Mo.App.), 51 S.W.2d 891. There, three years after the execution of a warranty deed, the plaintiff sued on an oral contract by which he claimed the defendants had agreed to extend an electric line to the property. In holding that parol evidence was not offered for the purpose of adding to or varying the terms of the deed the court said: “The parol contract which plaintiffs sought to establish was independent of and not inconsistent with the deed. * * * The deed made no reference to the contract upon which plaintiffs seek to recover. * * * The terms of the contract were not of a nature sufficiently related to the subject-matter of the conveyance of the real estate to require their inclusion in the deed as one of the necessary elements, and the terms of the contract upon which plaintiffs seek to recover arc not inherently in conflict with the terms of the deed, and therefore admission of this evidence for the purpose of establishing and proving this contract in no way tended to vary, add to, or contradict the deed.” (Emphasis supplied.) In further illustration of this distinction and principle see Scott v. Asbury (Mo.App.), 198 S.W. 1131, and Mitchell v. Philippi, 359 Mo. 754, 223 S.W.2d 441. 'While not a determinative factor in the decision of this case it should be noted in this connection that the oral contract is •of course inconsistent with the basic theory of the release, and both the release and the contract are so related to the same general subject matter that they should have been included in one document.

On the other hand, the claim that the release filed with the safety responsibility unit is “confidential” and not admissible as evidence is untenable. Under one of its provisions neither the report required by § 303.040, the security filed, nor the action taken by the director “shall be referred to in any way, nor be any evidence of the negligence or due care of either party, at the trial of any action at law to recover damages.” RSMo 1959, § 303.310. In so far as it might concern this case that particular provision is self-explanatory, it does not by its terms refer to any release given under the act. The director is required to keep and certify other records “of any person subject to the provisions of this chapter” (RSMo 1959, § 303.300), and certain other orders are said to be “evidence in all courts of this state in actions arising under this chapter.” RSMo 1959, § 303.-315. The release may or may not be one of those public records subject to inspection and use (Annotation 84 A.L.R.2d 1261), but here it is sufficient to say that the release is not inadmissible in evidence for the reasons now advanced.

Assuming for the purposes of this opinion that the oral agreement was relevant and admissible, the crux of this controversy and of this appeal is whether nevertheless, in all the circumstances of this record, it was appropriate under summary judgment procedure (Sup.Ct.Rule 74.04, V.A.M.R. Swink v. Swink (Mo.) 367 S.W.2d 575) for the court to declare as a matter of law that the plaintiff Farmer was es-topped from maintaining this action. And in its essentials, including many of the circumstances, the recent case of Eberting v. Skinner (Mo.App.), 364 S.W.2d 829, is the key to this cause and in its essence governs its determination. There the automobile driven by the plaintiff was a state-owned vehicle and there were two releases, a safety responsibility release and another by the plaintiff as the Director of Grain and Warehouse Division of the Department of Agriculture for $533.40, $483 of which was paid directly to the garage that repaired the state-owned automobile and $50 of which was recited to be “for the use of my personal car while the car was being repaired.” The appellant attempts to distinguish that case, and in some respects it is distinguishable, and urges that the court “did not directly pass on the question of whether or not the document in question was a release.” Also by way of distinction it is said that “there was no contention there that appellant has reserved the right to make a claim against respondent for his own damages” as Farmer claims in effect by his oral agreement here. But, of course, the fact that Eberting instituted the suit for damages for personal injuries was a claim that the property damage releases did not include his personal injuries, that much was certainly implied in his claim that the safety responsibility form was not a release “but a mere statement of the defendant exonerating the plaintiff from all responsibility for the collision.” But directly pertinent to this case the court said:

“As to whether the two papers filed with the Safety Responsibility Unit were releases, the plaintiff himself so considered them and in his testimony frequently referred to them as such. They contain the statement that the defendant has released him from all liability in respect to the collision. If a release actually had not been effected, then he was engaged in practicing a fraud upon the state. And can there be doubt that, had Mrs. Skinner chose to bring action against him for damages, he would have pleaded such instruments as a defense ? For all practical purposes they were releases.”

And then, considering the transaction as a whole and the surrounding circumstances, the court found that there was an accord and satisfaction.

In arriving at its decision the court in the Eberting case employed and quoted from the relevant cases and authorities, Annotation 32 A.L.R.2d 937; England v. Yellow Transit Co., 240 Mo.App. 968, 225 S.W.2d 366, and Faught v. Washam (Mo.), 329 S.W.2d 588, 594, and but little could be added to the direct and inferential force of the decision. This is not to say that the immediate parties to a motor vehicular collision may or may not in some circumstances contract and validly agree to pay one another’s damages and losses. Annotation 62 A.L.R.2d 977. But this is not a suit on the contract, and, as the court pointed out in the England case, there was but one accident, each party blaming the other, and, as in the state of the record here, “only one side could be liable and only one side could recover.” In these circumstances the court observed that it would be “unusual” or “extraordinary” for one of the parties to settle her claim for $500 and knowingly leave pending against her a claim for $6,500 or for the other party to pay out $500 when it was in good faith claiming freedom from responsibility and seeking to recover $6,500.

To the reasoning in the Eberting and England cases these further supporting factors might be added. Ultimately, of course, the intention of the parties is the test of their contractual rights and liabilities, nevertheless, a compromise and settlement “operates as a merger of, and bars all right to recover on, the claim or right of action included therein.” 11 Am. Jur. (Compromise and Settlement) §§ 23-24, p. 271. A compromise fairly made “is a final and conclusive adjustment of their controversy * * *. It operates as a merger of, and bars all right of recovery on, the claim or right of action included therein and the defenses thereto.” 11 Am.Jur. § 25, p. 272; 15 C.J.S. Compromise and Settlement §§ 25-26, pp. 743-744. In Bacon v. United States, D.C., 209 F.Supp. 811, it was held that a covenant not to sue, for a consideration of $2,287.80, was nevertheless a release and “did not retain an automobile damage claim” even though $50 of the recited sum was the deductible amount of their collision coverage, and even though “[they] specifically retain their claim for the balance of the damage done to their 1953 Lincoln automobile * * *.” The England decision was put on the ground that a party to a compromise is estopped from afterward urging any matter constituting a setoff or counterclaim in existence at the time of making the compromise. See also 15 C.J.S. Compromise and Settlement § 25, p. 744.

In summary in this case, whatever the parties may have thought or intended when the plaintiff Farmer paid Arnold $50 for a release, and regardless of whether the release constituted the entire contract, the release was executed at the instigation of Farmer for his own immediate needs and benefit and he is now es-topped after rendering Arnold all but defenseless from prosecuting one side of a tort action arising out of a single transaction. This principle of estoppel applies even though the release does not comprise the entire contract, it is a vital part of the oral contract asserted by the plaintiff. In addition to the Eberting and England cases, the basic principle involved in Max v. Spaeth (Mo.), 349 S.W.2d 1, is applicable here. In connection with releases and negligence actions the fact that estoppel and accord and satisfaction are defensive matters (Sup.Ct. Rule 55.10) does not prevent adjudication on summary judgment -where as here the essential facts are made clear of record. Swink v. Swink, supra; Colonial Airlines v. Janas, 2 Cir., 202 F.2d 914, 918; Suckow Borax Mines Consol. v. Borax Consolidated, 9 Cir., 185 F.2d 196; Solar Electric Corp. v. General Electric Co., D.C., 156 F.Supp. 51. And, accordingly, for the indicated reasons the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: COIL, Commissioner.

text:
    STATE of Missouri, Respondent, v. Fred Warren DAVIS, Appellant.
    No. 49937.
    Supreme Court of Missouri, Division No. 1.
    Oct. 14, 1963.

      H. F. Owen, Jr., Springfield, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Charles C. Hatley, Sp. Asst. Atty. Gen., New Madrid, for respondent.
   COIL, Commissioner.

A jury convicted Fred W. Davis of feloni-ously driving an automobile on a public highway in Taney County while in an intoxicated condition and fixed his punishment at two years in the state penitentiary. See Sections 564.440 and 564.460 RSMo 1959 and V.A.M.S. Davis appealed from the ensuing judgment but has filed no brief. We shall, therefore, examine the three assignments contained in his motion for new trial.

Inasmuch as defendant does not contend that the state failed to make a submissible case, suffice it to say that there was substantial evidence from which the jury reasonably could have found that on February 9,1962, Davis, while in an intoxicated condition, drove his automobile upon a public highway as charged.

Appellant’s new trial assignment 1 is that the trial court erred in permitting prospective juror Walker to remain on the panel after stating on voir dire “that his religious beliefs were such that he could not and would not believe in the truthfulness and veracity of any person who consumed alcoholic beverages in any amount” and, after defendant’s counsel had requested that Walker be excused, thus “restricting defendant in his choice of jurors” by causing defendant to use one of his peremptory challenges to remove Walker from the jury.

There is no merit in appellant’s contention for these reasons. The record does not show that Walker was peremptorily challenged by defendant and defendant’s statement in his motion for new trial does not prove itself. Furthermore, the record does not support the allegation quoted above. A summary of the voir dire examination in question shows that Walker answered that he belonged to a church whose members did not believe in drinking and whose principles declared it a sin to drink intoxicants; that he personally did not approve of drinking; that he would prefer one of a “sober mind”; and that he believed he might “sub-consciously * * * lean toward believing the testimony of a non-drinker rather than * * * a drinker.” The juror also said, however, that the fact that defendant and others were drinking or drunk would not color his “decision” in any way; that the fact that certain witnesses drink would not affect his consideration of their evidence and “in a courtroom” he would not give any more credit to a witness who is a drinker than to a nondrinker; and, finally, that even though the evidence showed defendant was a drinker, unless the state proved to his “satisfaction” that defendant was driving, he would find defendant not guilty.

The defendant did not seek to show that he was not intoxicated on the occasion in question; his contention apparently was that he was not driving. Be that as it may, the foregoing summary of the pertinent portion of the record demonstrates not only that the assignment made in the motion for new trial is not supported by the record, but also shows, considering Walker’s statements as a whole, that the trial court did not abuse the wide discretion it has to determine Walker’s qualifications as a juror and thus did not err in refusing defendant’s challenge for cause. See State v. Camper, Mo., 353 S.W.2d 676, 678 [2-1].

Appellant’s new trial assignment 2 is: “ * * * the Court erred in permitting witness Carl Day to testify as to his opinion as to driver of the automobile over the objection of defendant; that such evidence was not admissible and was highly prejudicial to defendant.”

The foregoing averment is too general to have preserved any matter for appellate review in that no reasons for the claimed inadmissibility of the testimony are stated, nor are any reasons stated indicating how and wherein such testimony was prejudicial. State v. Lord, Mo., 286 S.W.2d 737, 740 [6-10]; State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077, 1079 [1-3]; State v. Whitaker, Mo., 312 S.W.2d 34, 38 [6-8]; State v. Cox, Mo., 333 S.W.2d 25, 29 [1, 2] [3, 4].

In any event, a reference to Carl Day’s testimony shows that he was an eyewitness to the accident giving rise to the present charge and on direct examination testified that he saw defendant’s automobile turn over, immediately went to it and found defendant and another in the front seat and another in the back seat; defendant’s feet and legs were under the steering wheel with his head and shoulders “more to the passenger side.” On cross-examination he said he could not tell who was driving the defendant’s automobile before it stopped. Defendant’s counsel then asked, “Do you have an opinion as to who was driving the automobile after it was turned over?” The witness answered that he did. Whereupon counsel inquired as to how many accidents he had seen immediately after a car had turned over where there was more than one person in the car. The witness answered three or four. The witness conceded that it would be possible for the persons in defendant’s car to have been thrown into changed positions by reason of the car’s turning over, and conceded that he did not “know” who was driving. On redirect, the state’s attorney asked for the opinion the witness had said he had, based on his observations at the scene. The trial court overruled defendant’s objection with the remark that defendant’s counsel had attempted to qualify the witness as an expert. The witness then answered, “From the position they were in, I would say Mr. Davis was driving.”

While ordinarily opinion testimony is not received where, as here, “the trier of facts is as capable as the witness of drawing conclusions from the facts proved,” under the circumstances above set forth wherein defendant voluntarily opened the subject of the witness’s opinion and having inquired into the witness’s qualifications to form such an opinion, and where, as here, it appears that the witness’s opinion added little to his other testimony, defendant may not successfully complain that the state elicited the opinion.

Appellant’s final assignment is that the information failed “to state a charge against the defendant under the law for which he might be convicted.”

The information was: “J. C. Crouch, Prosecuting Attorney within and for the County of Taney, in the State of Missouri, informs the Court that Fred Warren Davis on the 9th day of February, 1962, at the said County of Taney, did then and there unlawfully, wilfully and feloniously drive and operate a certain motor vehicle, to wit: a 1953 Chevrolet sedan, over, upon and along the public roads and highways of Taney County, Missouri, to-wit: Highway No. 160, east of Kirbyville, Missouri, while in an intoxicated condition, against the peace and dignity of the State.”

The information followed the statute, Section 564.440, supra, and was sufficient in form and substance. State v. Ryan, Mo., 275 S.W.2d 350, 352 [7].

We have examined those record matters which we are required to review and find no error in connection with them.

The judgment is affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

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

All concur.


text:
    STATE of Missouri, Respondent, v. Edward EDMONSON, Appellant.
    No. 50037.
    Supreme Court of Missouri, Division No. 1.
    Oct 14, 1963.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.
   HOUSER, Commissioner.

Edward Edmonson, charged under § 560-175, V.A.M.S., with driving, using and operating a motor vehicle without the permission of the owner thereof, and in the same information charged with four prior felony convictions, § 556.280, V.A.M.S., as amended Laws 1959, S.B. No. 117, § 1, was convicted of driving, etc., as charged. Punishment was assessed at a term of five years in the penitentiary, and judgment was rendered accordingly. Defendant appealed but filed no brief, so we examine the assignments of error in his motion for new trial. Supreme Court Rule 28.02, V.A.M.R.

Seven of the assignments of error relate to the alleged insufficiency of the evidence.

The state’s evidence tended to show these facts: The owner of a 1963 Chevrolet, a “brand-new car,” parked it in the 1400 block on Singleton Street in St. Louis, at about 7:15 a. m., locked the ignition, the doors and windows, and walked to his nearby place of employment. Shortly before noon two police officers observed defendant driving the Chevrolet, i. e., steering it, as it moved or rolled along the street, pushed by another car. The Chevrolet was not running under its own power; it was rolling along as it was pushed; the motor was not running. The car doing the pushing was a “quite old” Plymouth driven by a part-time employee of a service station. This looked peculiar to the police officers. Defendant “just didn’t look right.” The officers decided to check the automobile to see if it was a stolen car. The officers questioned defendant. When they began their inquiry the Chevrolet was at rest at the entrance of the service station. The right vent window was broken. The officers tried the key defendant had in the ignition but it would not operate the ignition, or work the locks on the trunk or the doors of the car. The officers noticed that there was a “jumper” under the hood, an electric wire attached to the battery terminal and coil. A jumper enables a car to run without turning on the ignition by key. Defendant gave conflicting stories. First he said a Mr. Letner, eighth floor of the building on the southwest corner of 12th and Park, was the owner of the car; that Mr. Letner had directed defendant to take it to the service station to buy gasoline. The officer and defendant went to that building, but Mr. Letner’s name did not appear on the building directory, and defendant admitted to the officer that Mr. Letner did not live there and that there was no need to go up to the eighth floor. Defendant was placed under arrest. After defendant was taken to the central district police station the officers checked the license plate, traced the name of the owner of the automobile, and received information that it was supposed to be parked in the 1400 block on Singleton. The owner, notified, came to the police station, identified the Chevrolet, and noticed that the vent window was damaged; that the right rear taillight was broken; that the license plate holder was bent, and that the speedometer showed that the car had been driven about 5 miles since it was parked that morning. The owner had not given defendant or any other person permission to operate the Chevrolet. In the owner’s presence defendant admitted that he had driven and operated the car, and defendant then gave a different account of the manner in which he had come into possession of the car. His second story was that a friend named Ray had come by his house that morning driving the car; that defendant had presumed that it was stolen; that defendant had gone riding with Ray in the car; that Ray got out of the car and “gave” it to defendant, saying, “Here, you can have the car”; and that defendant was arrested shortly thereafter.

We are of the opinion that this evidence, if believed, made a case of driving, using and operating a motor vehicle without the permission of the owner, under § 560.175, V.A.M.S. It was not necessary for the state to show that defendant knew the identity of the true owner of the vehicle, or knew that the person in possession of the automobile when defendant first came upon it was not the true owner, or knew that his activities in connection with the automobile were without the permission of the true owner, as claimed by the defendant. But defendant claims that the uncontradicted evidence shows that what he did was done “with the permission of a person reasonably thought by defendant to have been the true owner of the automobile.” Without venturing an opinion on the question whether reasonable but mistaken understanding that the person giving permission to drive a motor vehicle was the owner would exonerate, the fact is that the state’s evidence clearly shows that when “Ray” appeared with the Chevrolet the defendant “presumed” that the car was stolen. If the car was considered by defendant to have been stolen, Ray, who according to defendant gave him permission to drive it, reasonably could not have been considered the true owner. The evidence-, was sufficient to support the required finding of willfulness. “Willfully” as used in the verdict-directing instruction means intentionally and not accidentally. The evidence plainly shows that defendant’s acts, were done with the intention of driving, using and operating the motor vehicle without the permission of the owner, and does not-demonstrate “accidental” driving. Defend-, ant contends that guiding or steering an automobile along a public street while it is be-, ing pushed by another automobile does not-constitute “driving, using and operating”' within the meaning of § 560.175, V.A.M.S.,. but we hold to the contrary. It was not-necessary for the motor to be running, the-gears to be engaged or the vehicle to be-running under its own power, as claimed. Any and all acts reasonably necessary to be performed in the movement of' a motor vehicle from one place to another or fairly incidental to the ordinary course-of its operation are encompassed within, the meaning of the language “drive, operate, [or] use,” as used in § 560.175, V.A. M.S. That defendant was driving, using- and operating the vehicle was. proved not) only by his act of steering and guiding under the described circumstances but also by his admission that he had driven and operated the car. There was no error in overruling defendant’s motion for judgment of acquittal at the close of the state’s case and at the close of all the evidence.

Defendant claims that the court should have dismissed the case and sustained his motion to suppress all evidence obtained by the state in connection with his arrest and detention, which is alleged to have been unlawful. The only bit of evidence claimed to have been improperly obtained was the admission of defendant at the police station within two hours after his arrest that he had driven and operated the automobile. The motion to suppress was based on two grounds: (1) that the officers under the circumstances surrounding this arrest “had no reasonable suspicion that any crime had been committed nor that defendant had committed any crime whatsoever,” and (2) that defendant was detained incommunicado for more than four days following his arrest despite frequent requests to contact and telephone his family, friends and counsel; that defendant’s family and friends frequently contacted the police department and were falsely informed that defendant was not in custody.

An arrest by police officers of the City of St. Louis, under the authority conferred by § 84.090, V.A.M.S., without a warrant, is lawful when the police officers have reasonable grounds to believe that an offense against the law has been committed by the person arrested. See State v. Brown, Mo.Sup., 291 S.W.2d 615; State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551, 553; Hanser v. Bieber, 271 Mo. 326, 197 S.W. 68. The following facts observed by the officers constituted reasonable grounds to suspect that defendant had committed a felony: the broken window vent; the fact that the key in the ignition did not fit that car’s ignition or other locks; the finding of a “jumper” on the ignition; the fact that defendant gave the officers conflicting statements and that his explanation of the manner in which he was given permission to drive the car was proved to be false. We rule that the arrest was lawful, and that defendant’s admission was not rendered inadmissible by virtue of the arrest.

There is no merit in the second ground of the motion to suppress. Defendant’s admission was made within two hours after defendant was taken into custody. There is nothing to show that the admission was not made voluntarily or that he was mistreated or overreached. Defendant himself admitted that he was not physically abused and that the statement was made voluntarily. The mere fact that it was made after defendant’s arrest and while he was in custody and being examined does not render it inadmissible. State v. McKissic, Mo.Sup., 358 S.W.2d 1; State v. Wood, Mo.Sup., 266 S.W.2d 632.

In a prefatory instruction the court informed the jury that the state charges the defendant with the offense of driving, operating and using a motor vehicle without the permission of the owner; that the defendant pleads not guilty, thereby raising an issue of fact for the jury to determine; that the court has a duty to instruct the jury and that the jury has a duty to receive the instructions as the law and find defendant guilty or not guilty according to the law declared by the court and the evidence received under the directions of the court. Defendant complains that this misstated the charge, which was that of "unlawfully, willfully and feloniously" driving, operating and using, etc.; that the jury reasonably may have believed that a verdict of guilt could be returned without finding that such acts were done unlawfully, willfully and feloniously; that the instructions thus were conflicting and confusing. While it would have been more complete to preface the charge in the manner suggested we do not find reversible error in the failure of the court to do so. In determining whether an individual instruction is misleading and prejudicial all of the given instructions must be read and considered together and if they properly present the law of the case when thus considered that is all that is necessary. State v. Brown, Mo.Sup., 332 S.W.2d 904, 910. We hold that all of the instructions, read and considered together, properly presented the law of the case and that defendant was not prejudiced by the omission noted.

Defendant claims error in refusing to permit defendant to testify that he was married and had four children, aged 1, 6, 7 and 11 years, and that his wife was in the courtroom. In order to be admissible evidence must be relevant to the issues to be determined, and if offered on matters which have no bearing upon the matters in issue it should be excluded. State v. Knight, 356 Mo. 1233, 206 S.W.2d 330, 333. Evidence offered solely for the purpose of creating sympathy for defendant is properly excluded. State v. Butler, Mo.App., 309 S.W.2d 155. The fact that defendant was married and had children, the number and ages of the children, and whether defendant’s wife was in the courtroom, were altogether immaterial facts, Golian v. Stanley, Mo.Sup., 334 S.W.2d 88, l. c. 91, and cases cited, which had no bearing upon the question whether defendant was guilty of driving, etc. without the necessary permission. The only purpose of offering such evidence would be to engender sympathy for the defendant. For the same reasons that it has been held improper to inquire of a plaintiff in a civil suit as to the number of children there are in his family, Golian v. Stanley, supra, and see Donze v. Swofford, Mo.App., 368 S.W.2d 917, and cases cited l. c. 921 [1], we hold that there was no error in excluding such irrelevant and immaterial evidence as to the family status of the defendant in this criminal case.

Error is assigned “in allowing defendant to be taken from the courtroom under armed guard at every recess in the case, within plain view of the jury, over defendant’s objection, in that such action was unduly inflammatory and dramatic and prejudicial to defendant.” Assuming the truth of this assignment, there is nothing in the record which indicates that under the circumstances the court exceeded its right to take the reasonably necessary precautions for the maintenance of order and retention of custody of an accused during the progress of the trial. State v. Johnstone, Mo.Sup., 335 S.W.2d 199, l. c. 205 [10], and authorities referred to.

Finally, defendant complains that he was removed and was absent from the courtroom several times while the jury was seated in the jury box, and therefore was deprived of his right to be present at all times during his trial. He says this happened three times: when the recess was declared for the preparation of instructions; when the court called for order at the end of that recess, and again following the closing arguments. When the objection was first raised the court inquired of defendant’s counsel what proceedings occurred while defendant was not in the courtroom, but counsel was “not prepared to state specifically.” The judge stated his recollection that defendant was removed after a recess had been declared by the court and announced by the sheriff and that immediately after defendant was removed the next thing that occurred was that the jury was escorted out of the courtroom. It was stipulated that the interval of absence on this occasion was 20 seconds. The second objection came at the conclusion of the arguments. It was then objected that the defendant was taken out of the courtroom after the court declared but before the sheriff announced the recess. On this occasion there was a 30-second interval of absence, during which the jury remained in the jury box.

The defendant has a right to be present at all times during the entire proceedings but defendant was not denied that right, as a practical matter, under these facts. Defendant’s counsel was unable to specify any proceedings which defendant missed during the first interval, and in overruling the motion in the second instance the court observed that nothing transpired in the interval between the time the defendant and the jury were escorted from the courtroom. We conclude that nothing whatever in the way of court proceedings occurred in the courtroom on either occasion. There is an entire absence of any showing of prejudice to the rights of the defendant. Defendant’s contention, on this record, is so highly refined and overtechnical as to be entirely devoid of merit.

An examination of the record as required by Supreme Court Rule 28.02, V.A. M.R., discloses no error.

The judgment is'affirmed.

COIL and WELBORN, CC., concur.

PER CURIAM.

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

All of the Judges concur.